[Congressional Record Volume 149, Number 128 (Wednesday, September 17, 2003)]
[Senate]
[Pages S11589-S11601]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 PARTIAL-BIRTH ABORTION BAN ACT OF 2003

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
resume consideration of S. 3, which the clerk will report.
  The assistant legislative clerk read as follows:

       Message from the House of Representatives to accompany S. 
     3, an act to prohibit the procedure commonly known as 
     partial-birth abortion.

  The PRESIDENT pro tempore. Under the previous order, the time until 
10:30 a.m. will be equally divided between the Senator from 
Pennsylvania, Mr. Santorum, and the Senator from California, Mrs. 
Boxer, or their designees.
  The Senator from California.
  Mrs. BOXER. I thank the Chair.
  Mr. President, I thank my colleague for agreeing to a time split this 
morning where I will speak for 30 minutes and, at the end of that time, 
Senator Santorum will speak for 30 minutes, and then we each expect to 
have other Senators speaking. We will figure out at that point how to 
divide the time.
  We are here this morning because there is a strong disagreement 
between the House and the Senate on the issue of Roe v. Wade, a Supreme 
Court decision that occurred in 1973 which ruled that it was 
unconstitutional to take away a woman's right to choose and that found 
a privacy right in the Constitution.
  The Senate has gone on record several times supporting the Roe 
decision. In S. 3, the bill that was brought to us by the Senator from 
Pennsylvania and others, which for the first time banned an approved 
medical procedure--the first time ever--without a health exception, 
Senator Harkin added an amendment to support Roe. I will show you what 
that amendment was and what the debate is about.
  Senator Harkin's language in S. 3 that was disagreed to by the House 
is the following:

       It is the sense of the Senate that--
       (1) the decision of the Supreme Court in Roe v. Wade--

And it cites the ruling--

     was appropriate and secures an important right; and
       (2) such decisions should not be overturned.

  This is the simple language that the Senator from Iowa, who spoke 
quite eloquently last night, made part of S. 3.
  The Senate had a debate about the Harkin amendment. It was an 
extensive debate about why it is important that a woman's right to 
choose remain the law of the land, why it is important that the Court 
not overturn it.
  The House, which says it very much wants to ban the procedure that is 
banned in S. 3 without a health exception, could have simply taken the 
Senate bill and sent it off to the President, and we would have had the 
argument about this underlying bill in the Supreme Court, where it is 
going to go, by the way, where I believe it will be ruled 
unconstitutional because the centerpiece of Roe is that a woman's 
health and life must always be protected.
  Let's look at the language in Roe which provides for the woman's 
health to always be protected and why, to those of us who believe Roe 
v. Wade was rightly decided, it is so important.
  The important point about Roe, which people sometimes don't get, is

[[Page S11590]]

that it is a very modest decision, a very moderate decision. It 
balances all the interests in a way that is fair. It says that in the 
early stages of a pregnancy, a woman has a right to decide whether to 
carry this child to term. She makes that decision after searching her 
soul, talking to her family, her doctor, her God.
  Guess what. Government isn't in the picture, Senators are not in the 
picture, Congresspeople are not in the picture, Senator Boxer is not in 
the picture, when a woman is making this decision. Neither is Senator 
Santorum nor Senator Frist nor Senator Stevens nor Senator Daschle. As 
far as this Senator is concerned--and I represent the largest State in 
the Union--that is the way it should be.
  I support everyone making their own decision as Roe states they 
should have the right to do in the early stages of a pregnancy. In the 
late stages of a pregnancy, after viability--that is when a fetus can 
live outside the womb--this is what the Court said in Roe:

       The State, in promoting its interest in the potentiality of 
     human life, may, if it chooses, regulate, and even 
     proscribe--

Meaning ban--

     abortion, except where it is necessary, in appropriate 
     medical judgment, for the preservation of the life or health 
     of the mother.

  It is a very sensible law. After viability, any State in the Union 
can ban abortion but always making an exception for the life and health 
of a woman.
  We have a decision, that I believe was very carefully thought out, 
that balances everyone's views, or let's say the majority of views, and 
indeed the majority of the people support Roe. In my particular State, 
it is overwhelming, but it is a strong majority across the country.
  Here is why it is so important. I guess my colleagues said: Why is 
Senator Boxer having us vote to disagree with what the House did? The 
House tossed out the support of Roe in S. 3 and said: We don't want it. 
Therefore, the two bodies will go to conference.
  Why do I want to take the time and have a debate about Roe? First of 
all, it is a very serious worry to many people in this country that 
with the Supreme Court at roughly a 5-to-4 vote on Roe, we could lose 
this right, and with the Senate now only having 52, 53, or 54 people in 
favor of Roe, which is diminishing, this is a problem. With the House 
anti-choice, this is a problem. They believe that making sure people 
understand what Roe actually did, what the decision actually did, is 
very important. So I think for that reason, to remind all of us what 
Roe v. Wade actually said and actually did, it is important.
  The other reason is, the underlying bill goes completely against Roe. 
Why? Because Roe v. Wade said, yes, the State--meaning the Government--
can even go so far as banning abortion but always having an exception 
for the life and health of the mother. This bill makes no exception for 
the health of the mother.
  Now, why is this important? What could happen to a woman if she 
cannot have the particular procedure that is being banned, as Members 
of the Senate and the House play doctor, and for the first time decide 
that they are going to outlaw a procedure?
  Let us look at what could happen to a woman's health. The night 
before last I put in documentation, letters, that laid out these 
problems. This is what doctors tell us could happen if the procedure 
that is banned in this bill cannot be used to save the health of a 
woman. I want everyone to think about whether they want their wife, 
their daughter, their sister, their friend, their aunt, or anyone else 
they love to go through this.
  A woman might have a hemorrhage, a hemorrhage that could get worse 
and worse and could lead to serious, long-term damage. Her uterus could 
rupture, meaning she may well never have another child. She could get 
blood clots, and everyone knows how serious that is. She could have an 
embolism, a stroke, damage to nearby organs, even paralysis. This is 
what doctors tell us.
  We do not have one OB/GYN in the Senate. The OB/GYNs tell us these 
are the things that could happen if a safe procedure that is recognized 
is not available to a woman, and yet this bill, S. 3, bans this 
procedure, does not give a whit about this in the end because there is 
no health exception. Believe me, my colleagues tried to offer very 
tight health exceptions and oh, no, the other side would not give an 
inch--no health exception.
  This is what could happen to a woman, and the only saving grace of S. 
3 is that it has the Roe language in it that we support in Roe. What 
does that say? It says to the Supreme Court across the street that even 
though the Senate passed S. 3 and banned a procedure, it also at the 
same time said, do not overturn Roe. Roe has a clear statement that the 
health of the mother must always be protected.
  I hope everyone on the other side votes for this. I have heard it is 
possible because there is a technicality here. If this amendment or 
this motion to disagree goes down, then there will be no conference and 
the bill cannot go forward. I hope all my colleagues on the other side 
vote for this, I really do, because I want a strong signal to go out 
that this Senate disagreed with what the House did when they said strip 
out the Roe language.
  If everyone on the other side, or a lot of my colleagues on the other 
side, vote with us and we get a strong vote, that sends a message to 
the conferees that most of the people wanted to keep the Roe language. 
I trust they will come back after conference with the Roe language. 
Send this bill into conference with a strong vote for Roe, and we 
expect Roe will come back in the bill.
  I think it is important to look at what happened before Roe so I am 
going to read a couple of statements. Dr. Douglas Black, Concord, NH, 
was then--pre-Roe, pre-1973--an OB/GYN. He did his specialty training 
in New York City from 1959 to 1963. During that time he saw hundreds of 
botched back-alley abortions, and many women died. But that was only 
the tip of the iceberg. For every one woman who died, there were many 
others who were rendered pelvic cripples. He said it was not a pretty 
sight, and he remembers doing hysterectomies on 13-year-old girls. 
Also, he and others were often unable to treat women until the women 
told police where they had gotten the abortion.
  Dr. Black says:

       I can vividly remember pot-bellied, cigar-chomping 
     detectives picking on some young, very sick kid, bleeding 
     excessively, with shaking chills of fever and a high 
     temperature.

  That is what it was like pre-Roe. That is why Senator Harkin offered 
this amendment. That is why the Senate voted for it and that is why we 
disagree with the House stripping out this amendment supporting Roe.
  Let me read another one. This one is from Philadelphia, PA, Dr. Louis 
Gerstley. Dr. Gerstley has been an obstetrician and gynecologist since 
the early 1950s. From 1956 through 1967, he worked at the Philadelphia 
General Hospital, where a 32-bed ward was kept purely for the end 
results of badly botched abortions. Imagine that, they had beds set 
aside for women who had to go to the back alleys and sneak and pass 
dollar bills across a table to some back-alley abortionist. The beds 
were constantly filled, and Dr. Gerstley saw women who were sick, who 
were dying, and who died.
  He remembers one 22-year-old woman in particular who came into the 
ward suffering from septic shock from a botched abortion. He and others 
worked on her for 6 hours and finally decided to give her a 
hysterectomy to save her life. The procedure was performed without 
anesthesia because she had no blood pressure and no pulse. The patient 
died. Dr. Gerstley has said:

       I never want to see that again.

  He opposes the criminalization of abortion. That is why we are here, 
because we want a strong vote going into conference that Roe v. Wade 
should not be reversed.
  Let us look at Senator Harkin's language again. It is very temperate, 
very clear, and very important. It is worth a debate. I appreciate the 
fact that we have a debate about Roe.

       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.

  It is very simple, very elegant.
  We do not want back-alley people, who are not doctors, who are not 
trained, to touch a young girl in trouble, or anyone who deserves to 
have their health protected. Their health must be protected. That is 
why Roe is so important.

[[Page S11591]]

  Dr. Robert Prince from Dallas, TX, has been an OB/GYN since 1958. At 
the end of his third year of medicine, he did a research fellowship in 
Nashville, TN. One of his duties was to perform autopsies. Since 
abortions were illegal, any death attributed to an abortion required an 
autopsy. In his own words:

       My first case was that of a 20-year-old college student, 
     who had been brought into the emergency room by her boyfriend 
     for vaginal bleeding. She had gone to a nurse's aide, who had 
     attempted to place a catheter in the cervix to effect an 
     abortion. A vital blood vessel was damaged, and the patient 
     was in shock when she arrived at the emergency room. . . . In 
     a clinic setting, this patient would have survived in spite 
     of the injury . . . if abortions were legal, she would have 
     survived. How often did this happen in the pre-Roe years? 
     Multiply the scenario by a thousand.

  Rollyn Carlson, 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.
  Here is the point. People in our country can make their own decisions 
in a personal, private, difficult moral, sometimes religious, decision. 
Some will decide to have the child, to keep the child, to love the 
child. Some will decide to put the child up for adoption. Some will 
decide to have a legal abortion in the early stages.
  Under Roe v. Wade, if a person waits until the end, that is a time 
when the State can step in, always, and say, no--but always protecting 
the health and the life of the woman. Again, that is why Roe is so 
important. That is why being pro-choice is so important, because it 
says that I respect you. I will do anything I can to protect your right 
to decide however you want to decide. I will not force you to decide 
the way I want you to decide.
  I wasn't elected to be God. I am a Senator. I was elected to respect 
you and respect your freedom and to pass laws that balance your rights 
with other rights. Roe v. Wade was that type of decision. It is very 
important that it not be overturned. It is very important that it be 
part of this law that is in front of us because the law that is in 
front of us makes an exception for the health of a woman.
  If we have the Roe language, we are sending a signal that, yes, a 
majority wants to ban this procedure. They couldn't get the votes to 
have an exception for health, but we still support Roe. That is why 
this is important. This is not some technical matter that we voice 
vote. This is a moment in time where we can discuss and debate the 
wisdom of the Harkin amendment, which is very clear and simply says Roe 
is important.
  I want to read this. Some of the stories are very hard. This woman's 
name is Romanita, from Pittsburgh, Pa. Romanita married and had three 
children, one, her daughter Norma, with spinal bifida. Her husband was 
a heroin addict and had left the home. One day he showed up and he 
raped her. He then disappeared and she found that she was pregnant. She 
sought an illegal abortion and experienced bleeding for 2 weeks. She 
lived to tell the tale.
  Again, our being here is not frivolous. I hope the other side will 
not paint it as such. We have so many issues facing our country today 
that are so important. We have an economy that has lost 3 million jobs 
in the last couple of years. We have deficits as far as the eye can 
see. We have to deal with that. We have environmental laws that have 
been rolled back. We have to deal with that. We have our young men and 
women in Iraq in terrible danger, without much help from the 
international community, unfortunately. We have a request for $87 
billion. We have to deal with that. We have to work that out in a way 
that protects the troops and yet makes sure we have some kind of exit 
strategy and we are not turning our back on the needs of our own 
people. We want to make sure procurement reform is done, so when Iraq 
is rebuilt it is done in a way that is fair.
  All those issues are before us. I don't come to the floor in a 
frivolous manner because I am working on all those issues. I have an 
important hearing today that involves a big industry in my State that 
is in some kind of trouble. We are having a hearing about that. So, no, 
I have come here early in the morning because I want to make the case 
to my colleagues as to why we are calling for a vote on this issue of 
Roe v. Wade. We are asking our colleagues to strongly disagree with 
what the House did when they stripped out the Harkin language. We want 
to send a strong message--hopefully, a very large number of votes will 
come our way on this one--to the conferees: Keep the Harkin language in 
the bill, please. We know we differ with the House. But we are right on 
this one.
  I thank you, Mr. President, and I thank my colleague from 
Pennsylvania for being so gracious as to allow me to open this debate. 
I know he will have a vigorous dissent, and I respect that. I suspect 
we will dissent on this matter many times in the future if we are both 
here to be able to do that. Of course that is up to the people of our 
States.
  I yield the remainder of my time and yield the floor.
  The PRESIDING OFFICER (Mr. Brownback). The Senator from Pennsylvania.
  Mr. SANTORUM. I would like to ask a question of the Senator from 
California. I know she has to leave, so I will not take long. The 
Senator from California and the Senator from Iowa for the last few days 
have been using the figure 5,000 women a year who died from abortion 
prior to Roe v. Wade. I have before me, which I will enter into the 
Record, a chart titled ``Maternal Mortality, Vital Statistics of the 
United States, 1942 to 1974.'' This chart tracks the total maternal 
deaths in the country and total abortion deaths in the country.
  I ask unanimous consent that the chart be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                     TABLE 2.--MATERNAL MORTALITY: VITAL STATISTICS OF THE UNITED STATES, 1942-1974*
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Total abortion deaths                  Other maternal deaths                  Total maternal deaths
                Year                --------------------------------------------------------------------------------------------------------------------
                                        White      Non-White      Total        White      Non-White      Total        White      Non-White      Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1942...............................          917          314    1,231            4,598        1,438        6,036        5,515        1,752        7,267
1943...............................          853          312    1,165            4,610        1,422        6,032        5,463        1,734        7,197
1944...............................          695          201      986            3,953        1,421        5,473        4,468        1,622        6,369
1945...............................          602          286      888            3,520        1,260        4,780        4,122        1,546        5,668
1946...............................          535          225      760            3,272        1,121        4,493        3,807        1,346        5,253
1947...............................          385          200      585            3,170        1,223        4,393        3,555        1,423        4,978
1948...............................          321          175      496            2,432        1,194        3,626        2,753        1,369        4,122
1949...............................          236          158      394            1,863          959        2,822        2,099        1,117        3,216
1950...............................          193          123      316            1,680          964        2,644        1,873        1,087        2,960
1951...............................          170          133      303            1,608          901        2,509        1,778        1,034        2,812
1952...............................          196          124      320            1,428          862        2,290        1,624          986        2,610
1953...............................          162          132      294            1,317          774        2,091        1,479          906        2,385
1954...............................          156          131      287            1,124          694        1,818        1,280          825        2,105
1955...............................          150          116      266              984          651        1,635        1,134          767        1,901
1956...............................          138           83      221              880          601        1,481        1,081          684        1,702
1957...............................          126          134      260              871          615        1,486          997          749        1,746
1958...............................          136          123      259              802          520        1,322          938          643        1,581
1959...............................          138          146      284              789          515        1,304          927          661        1,588
1960...............................          147          142      289              789          501        1,290          936          643        1,579
1961...............................          163          161      324              734          515        1,249          897          676        1,573
1962\1\............................          149          148      305              658          467        1,160          807          615        1,465
1963\1\............................          161          107      280              636          512        1,186          797          619        1,466
1964...............................          117          130      247              634          462        1,096          751          592        1,343

[[Page S11592]]

 
1965...............................          106          129      235              550          404          954          656          533        1,189
1966...............................           96           93      189              509          351          860          605          444        1,049
1967...............................           76           84      160              495          332          827          571          416          987
1968...............................           58           75      133              426          300          726          484          375          859
1969...............................           65           67      132              398          271          669          463          338          801
1970...............................           57           71      128              388          287          675          445          358          803
1971...............................           43           56       99              337          232          569          380          288          668
1972...............................           38           32   \2\ 70(83)          342          200          542          380          232          612
1973...............................           15           21   \2\ 36(51)          259          182          441          274          203          477
1974...............................           13           14   \2\ 27(47)          244          191          435          257          205          462
1975...............................                                                   Not yet available
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Statistics in Table 2 are published by the National Center for Health Statistics (NCHS) of the Department of HEW in Vital Statistics of the United
  States, Part II--Mortality. These figures are derived from death certificates.
\1\ In 1962 and 1963 New Jersey did not report race classification. The white and non-white figures do not include the state of New Jersey, but the
  totals for each category do.
\2\ Beginning in 1972 CDC in Atlanta has kept records on abortion-related maternal mortality (figures in parentheses). The CDC figures are slightly
  higher because of special investigative work into particular cases and causes. For the years 1972, 1973, and 1974 these figures are subdivided into
  legal at, respectively, 21, 24 and 23; illegal at 40, 19 and 6; and spontaneous at 22, 8, 18. See CDC Abortion Surveillance, 1973, Figure 6; CDC
  Abortion Surveillance, 1974 (in press).

  Mr. SANTORUM. In the year prior to Roe v. Wade, 1972, the total 
maternal deaths in the United States--total maternal deaths from all 
causes--was 612. According to the Centers for Disease Control, the 
total abortion-related deaths were 83. So I ask the Senator from 
California how they can continue to use the number 5,000, when the 
official statistics of the United States say the total number of 
maternal deaths in the country were 612, and those related to abortion 
were 83?
  Mrs. BOXER. Let me say to my friend, one death is too many, if it is 
your wife. We could debate the numbers. I gave you cases, cases, cases 
here. A woman who was raped and had to go get an illegal abortion. I 
have so many more of these.
  I have the data and I have the sources. I will, before the end of the 
morning, have them printed in the Record. But, again, there are varying 
estimates. I have never heard the one, 83, as being a serious estimate.
  Be that as it may, Roe v. Wade says that you always protect the life 
and health of a woman. That is a basic disagreement you and I have.
  Mr. SANTORUM. I appreciate the basic disagreement. I think we are 
allowed to disagree on our opinions. We are not allowed to argue and 
disagree with the facts. The facts are what they are. This is from the 
Centers for Disease Control. These are numbers out of the abstract. I 
will be happy to give them to the Senator. But these are from the 
National Center for Health Statistics of the Department of HEW. This 
was in 1975, so that is from the Department of Health, Education and 
Welfare at the time. These were the official statistics of the United 
States.
  Again, I am not challenging the remarks of the Senator that every 
life is important. But I think presenting accurate evidence is also 
important if we are going to have a discussion about what the case was. 
Let's look at the case of abortion-related deaths. In 1942 there were 
1,231; total maternal deaths were 7,267. Every single year, without 
fail, every single year, the total number of maternal deaths went down 
because medicine improved. The total number of abortion-related deaths 
went down. Why? Every year, I believe, without fail--there are 1 or 2 
years where it popped back up and dropped back down--it went down 
almost in a direct line and was continuing to go down. So the idea that 
Roe v. Wade is saving even--in 1973 there were 36. The bottom line is 
that very few--given the number of pregnancies that were occurring in 
those years--very few women died as a result of ``botched'' abortions. 
The idea that thousands and thousands were--well, I will quote for you 
Bernard Nathanson, who was an abortion doctor at that time. He says:

       How many deaths are we talking about when abortion was 
     illegal? In NARAL [that's the National Abortion Rights Action 
     League] we generally emphasize the drama of the individual 
     case.

  You heard the Senator from California come back when I said the 
statistics are wrong.

       We talk about the individual case, not the mass statistics. 
     But when we spoke about the latter it was always 5,000 to 
     10,000 deaths a year. I confess I knew these figures were 
     totally false and I suppose the others did too if they 
     stopped to think about it. But in the morality of our 
     revolution it was a useful figure, widely accepted, so why go 
     out of our way to correct it with honest statistics?

  The bottom line is we are making a policy decision based on, 
hopefully, factual evidence. I want to make that clear.
  A couple of other things about what the Senator from California said 
and last night the Senator from Iowa said, that a majority of Americans 
support Roe v. Wade. Maybe if you asked the question, ``Do you support 
Roe v. Wade?'' a majority of Americans would say, ``Yes, it is the law 
of the land.'' Most people, if it is the law, generally comply with the 
law and so most people say it is probably fine, although if you 
describe what the law is without saying it is Roe v. Wade and ask if 
they agree, you find that a majority of Americans do not agree with Roe 
v. Wade.
  In fact, there was a study done a couple of months ago by the Center 
for the Advancement of Women. Faye Wattleton, a very well known 
abortion rights advocate, formerly affiliated with Planned Parenthood--
I believe the head of Planned Parenthood--instituted a study this 
summer, and they asked the question about abortion to women--not to 
men, to women. They found that 17 percent of women in America--this is 
a pro-choice group--17 percent of women in America said abortion should 
be banned, period--never legal. Another 34 percent said it should be 
against the law except in the case of rape, incest, and life of the 
mother. If you add 17 and 34--I will get one of the pages to add that 
up for me--it is 51; 51 percent of American women are either against 
abortion, period, or only in the case of rape, incest, and life of the 
mother, which if you ask people in this Chamber if you are against 
abortion except in the case of rape, incest, and life of the mother, 
you are considered pro-life. Most people in this Chamber who are pro-
life are for the exception of rape, incest, and life of the mother.
  So the majority of American women, according to an abortion rights 
group--who, by the way, described the results of this as 
``disappointing''--don't agree with Roe v. Wade. A majority of American 
women do not agree.
  Let me broaden that even further. They asked this question, as an 
option: It should be available but under stricter limits than now. In 
other words, it should be less available than Roe v. Wade allows. Add 
another 17 percent to that. Now we are up to 68 percent of women in 
this country who believe Roe v. Wade is wrong; 68 percent of women 
disagree with Roe v. Wade.
  Now, the fourth category was: It should be generally available to 
those who want it. This is a very tricky thing. It should be generally 
available. It did not say, it should be what Roe v. Wade is, the law: 
It shall be available for any reason at any time. That is what Roe v. 
Wade is. This idea that this is a moderate, reasonable provision, Roe 
v. Wade, is nonsense.
  Roe v. Wade and its subsequent decisions have established an absolute 
right to an abortion at any point in time. The Senator from California 
says the State can prohibit abortions, late-term abortions. I asked the 
Senator, and I have asked her more than once in these debates, and 
today--she has not provided any evidence--I asked her to give me one 
example where an abortion was stopped in this country under Roe v. 
Wade, an example where someone wanted an abortion and, because of the 
Supreme Court decisions, was barred. It does not happen. Why? The 
Senator says, well, there is this health exception that is very 
important. There always has to be a health exception.
  Look at the Supreme Court cases that define what a health exception 
is.

[[Page S11593]]

According to Doe v. Bolton, the companion case to Roe v. Wade, health 
means any health: Mental health, physical health, economic health, 
stress, distress. Anything that could possibly affect mental or 
physical health is a health exception.

  What does that mean? This is an exception that swallows the rule. The 
health exception means that abortion is legal, period, up until the 
moment that the child is completely separated.
  The point of the partial-birth abortion debate is the child is all 
but separated. The child is completely delivered except for the head. 
And you do not believe Roe v. Wade is extreme? Under Roe v. Wade, this 
Supreme Court said that 3 inches from separation still is covered by 
Roe v. Wade. At 38 weeks, 3 inches from being born, you can still kill 
your child.
  It was interesting, when the Senator from California went through the 
different options a woman has. She said you can deliver your child and 
take it home, you can deliver your child and give it up for adoption, 
or you can terminate the pregnancy. She did not say--she used the term 
``child'' in the first two instances, but in the third instance it is 
``terminated pregnancy,'' as if the child does not exist.
  The third option is to kill your child. That is the option. It is 
very stark. It sounds rather cold, chilly, but it is.
  In the extreme nature of Roe v. Wade, if really known by the American 
public, these numbers I have been reading would be even higher--this 30 
percent that says it should be generally available.
  If you ask the question, Should it be available for all circumstances 
at any time up to the moment of separation, including up to 39\1/2\ 
weeks, I daresay the number of people who would be supportive of Roe v. 
Wade, which is the law, would be in the very low double digits and, I 
would hope, single digits. But I don't know that. I have not seen any 
polling on that because no pollster asks the question of what the law 
really is. They put it in fuzzy terms to gather more people. But even 
with this fuzzy language, even written in a way for the pro-choice 
groups to get the best number they possibly can, two-thirds of the 
American people oppose Roe v. Wade.
  I find it remarkable the Senator from Iowa last night got up and 
called my opposition to this extreme when two-thirds--I said of people, 
two-thirds of American women--say what the Senator from Iowa is doing 
is extreme, is wrong, is not what they believe. He does not represent 
them. His extreme views--and they are extreme, not by my definition, 
not by my morality, not by my theology, but looking at what the 
American public believes. Extreme means out of the mainstream, on the 
edge.
  If you look at the polling data now on abortion, Roe v. Wade is on 
the edge; it is not where the American public is. One of the reasons 
for that, I happen to believe, is medical science. I saw a TV 
commercial the other day of what I think is called the 4-D sonogram, 
where you can actually see these 3- or 4-D images--I don't know what 
they are--but color images of a child in the womb. I saw an article in 
the paper talking about how they can see a baby in the womb smile and 
have facial expressions. It gave rise to a study or discussion as to 
whether children of the womb feel pain, or how much.
  It is very hard for the American public--and I know this is a battle 
that people usually internalize, and most people do not talk about 
abortion--when they see those images, see this little baby in the womb. 
There is a commercial. It is a GE commercial, and I thank them for the 
courage to run the commercial. I know it was incredible the amount of 
heat they got. From whom? From these organizations that call themselves 
women's rights organizations, pressuring General Electric to pull the 
ad.

  These are women's rights organizations that don't want women to know 
what is going on within their own body, but they are women's rights 
organizations. They want to hide facts from the very people they want 
to, ``give rights to.'' They don't want them to see. They want to keep 
the deception to the very people whose rights they say they are 
protecting.
  But General Electric, to their credit, kept the ad about this 
incredible new technology. At the end of the ad, you see this closeup 
of this baby in the womb--this little face--and then it dissolves into 
the face of the baby, subsequently, after the baby is born--the same 
face. It is not a different baby. It is not one baby in the womb and 
another baby in its mother's arms a couple months later. It is the same 
baby.
  But the other side, the ``women's rights'' organizations, don't want 
you to know that. They don't want you to see that. They don't want you 
to understand what abortion is.
  The reason I have been so passionate about the issue of partial-birth 
abortion is because, for a long time in this country, the whole debate 
about abortion was about the rights of women only--only. You never saw 
the baby because in an abortion, you do not see the baby. In partial-
birth abortion, you cannot miss the baby. It is a baby. It is moving. 
This baby would otherwise be born alive because of the late-term nature 
of when these abortions are done. We are being called extreme because 
we do not want to allow a procedure which allows the baby--who would 
otherwise be born alive, who in 99 percent of the cases is healthy, 
with a healthy mother--to be delivered in a breach position, and have a 
pair of scissors thrust into the back of the baby's head, when they are 
literally inches away from being born? We are extreme if we want to 
stop that?
  George Orwell, in 1984, could not have thought we could twist the 
English language so much that such horrendous actions would be twisted 
to somehow we would be the extremists in trying to defend the rights of 
these little children not to be treated in such a horrible fashion.
  No. No. We are going to proceed. And we are going to proceed with 
this debate on the motion to disagree with House amendments. And I make 
a request of every one of my colleagues from both sides of the aisle to 
vote to disagree with the House amendment. Why? Because that is the way 
you get to conference.
  This is a procedural motion. I never, in my 9 years, recall that we 
ever had a debate about what is strictly a procedural motion to go to 
conference. But some point is trying to be made, which, frankly, 
escapes me, that somehow if we vote for the disagreement, somehow we 
are arguing that we are for the Senate version versus the House 
version. What we are for is a bill that will be passed by both Chambers 
and signed by the President, and that will be the original contents of 
S. 3, which I suspect will pass here and pass, hopefully, by a very 
large margin.
  I want to go through some of the points the Senator from California 
made. She talks about the medical evidence, and she put a chart up of 
all of the things that could go wrong with a woman in the cases of not 
having a partial-birth abortion available. I think we just need to 
review the facts. Again, you are entitled to your own opinion. You are 
not entitled to your own facts.

  Five thousand people dying from abortion prior to Roe v. Wade a 
year--factually incorrect, unsupportable. We have people who were 
involved in the movement, as I commented earlier, who said they made up 
the number. Yet 30 years later, they are still using the number in 
spite of the National Center for Health Statistics, the Federal agency 
at the time that was responsible for keeping track of the number of 
maternal deaths, deaths of mothers due to abortion, saying--actually, 
there were two organizations. One was the Center for Disease Control. 
They said 83. They just began that year keeping track. And then the 
National Center for Health Statistics said 70. So somewhere between 70 
and 83, not 5,000.
  You are not entitled to your own facts to influence the 
decisionmaking of the American public or Members of Congress. If you 
are going to make your argument, you are entitled to your opinion. I 
can respect your opinion. A lot of people hold that opinion in this 
country, and it should be represented here, but it should be 
represented honestly. It should be an honest debate about what the case 
was before Roe v. Wade, and an honest debate as to what the case is 
now. I would argue that neither has been put forward by the other side.
  They exaggerate claims of what was going on before. They minimize 
what is going on now. They minimize the real

[[Page S11594]]

effects of Roe v. Wade. You never hear them talk about the 1.3 million 
abortions a year that go on. I am not talking about 5,000 or 83. I am 
talking about 1.3 million children die from abortion in this country--a 
third of all pregnancies; somewhat less than a third now. Thankfully, 
it has come down. But for roughly a third of all children conceived in 
this country, their lives end before they have a chance to enjoy the 
freedoms this country provides.
  Last night, I had a discussion of how this country on this issue is 
out of whack, how we have put the liberty rights of a woman above the 
life rights of her child. As I said last night, the last time we did 
that in this country was back in the early 1800s. We put the liberty 
rights of the slave owner above the life rights of the slave.
  I refer and have referred to the Roe v. Wade decision as Dred Scott 
II because it is the second time in the history of this country we have 
taken the fundamental premise of our country--the founding document of 
our country, the Declaration of Independence, which said, ``We hold 
these truths to be self-evident''--back then we actually used very 
lofty terms such as ``truths,'' absolute things that we all agreed on, 
the truth. They believed there was a truth and that you could actually 
find what that truth is.
  We said: We hold these truths to be self-evident that all men are 
created equal--all--and that they are endowed by our Creator with 
certain inalienable rights. And they listed three--the three 
foundational rights upon which this country was founded--life, liberty, 
and the pursuit of happiness--not liberty, happiness, life; not 
happiness, life, liberty--life, liberty, happiness. Why? Because it 
sounded better? Life, liberty, pursuit of happiness sounds better than 
happiness, liberty, life? Is that why they did that? It sounded better? 
Jefferson was good at writing, and he just said: Boy, this sounds 
better. I will put life, liberty, pursuit of happiness. That sounds 
nice?
  How many people think that is the reason they did it that way?
  Of course not. He wrote it that way because that is the way you have 
to write it. You can't have happiness without freedom and liberty. How 
can you truly be happy, how can you truly pursue what God has called 
you to do in this life if you are not free to do it, if someone tells 
you what you must do or what you must say, what you must believe. 
Likewise, how can you be free, how can you have liberty if you are dead 
or the equivalent of dead in the case of the slave? They are there for 
a reason, and they are in that order for a reason. Roe v. Wade 
scrambles them, just like Dred Scott scrambled them. It was wrong then. 
It is wrong now. It was legal then. Why? Because the Supreme Court said 
so. It is legal now. Why? Because the Supreme Court said so.
  Back then a bunch of people stood up on this very floor and said no. 
Millions of people across America said no. We had great leaders in our 
country, including President Lincoln, who said no. Remember the 
mainstream view was, who are we to tell others how they should live 
their life? Who are we? I am not God. How can I tell a slaveholder they 
can't do something they did in the Bible, own slaves? That has been the 
tradition of this country. Who am I to make those choices for other 
people? I trust them. I trust their judgment. I trust their morality. 
How dare you not trust these people that they are not treating these 
people kindly, that they aren't doing the right thing for them? How 
uneducated of you to feel that way.
  Do these arguments have a somewhat familiar ring to them? It is the 
same debate. It is just as wrong. For it is our job here to say what is 
right and what is wrong. That is what laws are. Laws are the reflection 
of the collective morality of our country. Roe v. Wade was a usurpation 
of that collective morality. It was a hijacking of the collective 
morality of this country by nine Justices of the Supreme Court who 
decided they would play God. Now we just follow along as so many did in 
the early 1800s. They just followed along. Why? Because it was the law. 
And who are we to judge these people who own these slaves? Who are we? 
Who are we? That is a question all of us need to ask: Who are you? How 
much are you standing up for what you believe is right and what, in 
many cases, we know is right, and how often do you just sort of turn 
away and say: Well, that is the law? It is an uncomfortable issue and 
we will just leave it alone. And so we pass language, sense-of-the-
Senate language that says this law, Dred Scott II, is something that 
should continue in America.
  I believe, as much as I believe that I am standing right here today, 
that this law will be overturned, not by the courage of Senators, not 
by the courage of Governors or judges, but by the wisdom of the 
American people. We are seeing it happen. The more people find out 
about the injustice that abortion is and the extremeness of Roe v. 
Wade, people are changing. That is why there is this desperate attempt 
to hang on, to codify Roe v. Wade or to support Roe v. Wade, to prop it 
back up, this wretched decision that is affecting so much of society.
  We are going to have a chance in a few weeks, once we pass this 
resolution of disagreement, to vote on the conference report on S. 3, 
which is the partial-Birth Abortion Ban Act. We will have an 
opportunity--I hope it will not be filibustered--to vote straight up or 
down on whether to send this bill to the President, which he said he 
will sign, and send it across the street. That is where it is going 
to end up. Across the street from the Senate happens to be the Supreme 
Court of the United States. They will have another opportunity to look 
at this procedure based on the factual record.

  Again, I challenge any Member on either side of the aisle to come 
forward with a reason why this procedure needs to be legal for the 
health of the mother. Not one piece of evidence has been entered in the 
record ever that this procedure was ever necessary to protect the 
health of the mother. No one even makes an argument that it protects 
the life of the mother, but there has never been a case introduced that 
has not been refuted 30 different ways that suggests that this 
procedure is necessary for health. So the health exception of Roe v. 
Wade, as a result, is not applicable here because there is no medical 
reason why this procedure needs to be legal.
  In addition, we have tightened the language. The other concern in the 
Court was that it was vague and could have included other late-term 
abortion procedures. There are many in this Chamber who would like to 
ban all late-term abortion procedures. That is not what this bill does. 
It simply bans a procedure which the vast majority of the American 
public, anywhere from 70 percent to 80 percent, believe should be 
banned. By the way, if you are with 70 or 80 percent of the American 
public, you are hardly on the extreme. By definition this can't be 
extreme if 70 to 80 percent of the American public support what you are 
doing.
  We have tightened the language to ban a procedure, just one--this 
one. So there is no doubt now that the Court had before, because of the 
language in the Nebraska statute, that we might include other abortion 
techniques. We are including one technique, this one, a technique that 
is never used to protect the health or life of the mother. Roe v. Wade 
is as expansive a right as there exists today. Let me repeat that: The 
right to an abortion in America is more absolute than the right of free 
speech, than the right of freedom of assembly, than the right of 
freedom of the press. Under constitutional interpretation, there is no 
limitation on the right to abortion--none--where these others all have 
limits. I would argue not great limits, but they are all limited in 
some fashion by the Court and by statutes that have been found 
constitutional by this Court. Except abortion, there is no limit. There 
is no practical limitation on the right to an abortion.
  This--candidly and unfortunately, in some respects--is not a 
limitation on abortion either because if it were a limitation on 
abortion, the Court would find it unconstitutional. But it is not.
  It is a rogue procedure that candidly is unhealthy. We have mountains 
of evidence from experts in the maternal field of medicine who say this 
procedure is the least healthy option for women. Obviously, it is the 
most horrendous and brutal to the child.
  That is our plea. It is a modest one. It is so modest that many 
people do not understand why we are even pursuing it on both sides of 
this issue.

[[Page S11595]]

They ask, Why are you suggesting this? It is not going to do anything. 
It will bar one procedure that is not used very much--a few thousand 
times a year. But, as the Senator from California says, every life 
matters. Every case is a tragedy. So we should do it if we can. We 
should, and we will, hopefully in a few weeks.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, thank you very much. I have gone to one 
meeting. And I have another hearing. I appreciate my colleague from 
Pennsylvania being so gracious as to work the time so I could continue 
to come back and forth.
  Before I left the floor, I promised him I would put in the Record the 
various publications that have stated that approximately 5,000 women a 
year died from illegal abortions before Roe.
  Mr. SANTORUM. Mr. President, will the Senator yield for a question?
  Mrs. BOXER. In a moment.
  The Senator read from the CDC figures. I realized as I left the floor 
that at the time women were having these illegal botched abortions and 
were dying--it made some of them infertile, and they were suffering 
from trauma--they were not supporting the CDC or any government entity 
because they would have been put in prison because abortion was 
illegal. Any claim that the CDC would know the accurate number of 
illegal abortions just flies in the face of all common sense. Women 
were not cooperating with the Government. They were in fact standing up 
to the Government which had outlawed the procedure.
  I am glad to yield to the Senator.
  Mr. SANTORUM. In how many States in 1972 were abortions illegal?
  Mrs. BOXER. I could tell you it was illegal in my State. I will be 
happy to give you all of that. That isn't the point. At the point in 
time when the CDC was collecting these numbers, many of the women were 
having abortions. In my State--probably the most populous State at that 
time--they were not reporting these things.
  My friend challenged me. I come back with the fact that I don't 
believe the Senator could say the United States Government knew. But I 
will tell you who did know.
  Mr. SANTORUM. Will the Senator yield for a question.
  Mrs. BOXER. I have a book that has stated that number.
  I am glad to yield.
  Mr. SANTORUM. I can't imagine that--first of all, this number was 
derived from death certificates. If a person is dead, they are not 
going to report an abortion. There is no concern about a woman 
reporting her own death because she fears being prosecuted. These 
numbers were derived from death certificates from hospitals and the 
cause of death of the women who died. It has nothing to do with self-
reporting. They are dead. The idea that somehow these women aren't 
reporting because they are afraid of being prosecuted--with all due 
respect, they are dead.
  Mrs. BOXER. I am talking about the number of illegal abortions.
  Mr. SANTORUM. That is not the number used. The Senator used the 
number of 1,000 deaths.
  Mrs. BOXER. Excuse me. I don't interrupt the Senator, if he would 
allow me to respond.
  I am saying to the Senator that the collection of data at that time 
would not be done by someone who feared prosecution. If a person dies, 
I can tell you that right now doctors weren't reporting these things. 
Families didn't want to say their child did something illegal. The 
Senator is the only one I have ever met in the movement to outlaw Roe 
who would put the number of deaths at 83. But I want to tell the 
Senator that 83 deaths of women--and I have read stories and my friend 
has heard them, and they are brutal stories about 13-year-old girls, 
and women who were raped who were afraid--these people died. You can 
take your number of 83 which is the CDC and which would, I say, make no 
sense because people were afraid to death, frankly, and families were 
afraid to report that. Or you can take the number of 5,000 which has 
been written about quite a bit in science magazines, or you can take 
some other number in the middle. My friend can pick whatever number he 
wants. He has chosen the number of 83 women who died. That is 83 
families destroyed. But you can belittle. That is fine.

  The bottom line is that Roe v. Wade said the Government has a right 
after viability to ban abortions. But there is always an exception for 
the health of the woman.
  My friend can sugar-coat his bill any way he wants. But the fact is 
even the people who want to ban abortions have written--and I just read 
an account today where one gentleman who was a big leader in this 
movement to overturn Roe said this bill is unconstitutional.
  That is the reason why it is important for us to say we support Roe, 
because this Senate shouldn't be reporting language that is 
unconstitutional and which jeopardizes the health of a woman.
  Mr. SANTORUM. Will the Senator yield?
  Mrs. BOXER. I yield for one more question. I appreciate having a 
chance to finish my remarks.
  Mr. SANTORUM. I want to clarify and put a question to the Senator. 
Using my numbers--these are not my numbers; these are the numbers from 
Department of Health, Education and Welfare back in 1975. The Senator 
says people didn't want to report that. I want to clarify for the 
Record that these are figures derived from death certificates. My 
question is, Is the Senator suggesting that doctors lied on death 
certificates about the reason for the death? That is what the Senator 
is suggesting.
  Mrs. BOXER. I am suggesting to my friend that when people could go to 
prison because a woman had an abortion in the early stages of her 
pregnancy--this is my opinion--I don't believe there is going to be 
accurate reporting. I think it had a terrible impact on people. People 
were so frightened.
  We have testimony from a doctor who said that while a woman was on 
the table bleeding to death, the doctor was afraid to perform an 
abortion because--he was allowed to do it because the woman was raped, 
but he was afraid until the police cleared it.
  The bottom line is this was a period in our history where women were 
made to feel like criminals. I remember those days. Women's lives were 
lost. The number of illegal abortions is hard to determine. It is hard 
to determine the cause of death. The fact of the matter is I don't know 
too many people who believe the number of 85. There are people who 
lived in those days who saw how many women were having these abortions. 
Perhaps they were raped. Perhaps it was a situation where they wanted a 
family, and that wasn't to be. Whatever the reason, it was happening. 
They weren't reported, and I don't believe the deaths were accurately 
reported.
  The point is, Why are we here having this debate? Would I still be 
standing here if I believed that ``only'' 85 women a year died? Yes, I 
would be, because that is too many deaths, if it is your friend, if it 
is your mother, if it is your sister, or if it is your aunt.
  The question isn't only how many illegal abortions there were and how 
many women died. The Senator made no reference to how many women became 
infertile. Then the Senator says something that is totally untrue--that 
we have never placed into the Record at all any statement that shows 
that by banning this procedure which is banned in this bill with the 
health exception there could be health damage.
  There is testimony of Anne Davis before a hearing of the Subcommittee 
on the Constitution of the House Judiciary Committee. She is a 
physician licensed to practice medicine in New York, and she is a 
board-certified OB/GYN. She got her education at Columbia. She is a 
fellow of the American College of OB/GYN.

  With all due respect to my colleague from Pennsylvania--and I totally 
respect his right to his opinion and would fight for his right to have 
it--I trust an OB/GYN more than I do him on matters pertaining to a 
woman's health and her body.
  She says this bill will severely limit physicians' ability to provide 
the best medical care to their patients. She says it is confusing; it 
is contradictory; it would be difficult for physicians to interpret. 
And she says she believes after reading it, the bill appears to ban 
safe and common abortion procedures

[[Page S11596]]

used well before fetal viability. By the way, this was another ground 
on which the Supreme Court overturned a similar Nebraska statute. It 
said it was vague.
  She says the bill leaves physicians with an untenable choice of not 
being able to provide the appropriate medical care and, she says, it 
poses grave risks to the patient. Let me repeat that. My colleague said 
there was not one bit of evidence that the procedure that is banned--
not one bit of evidence--that it could hurt a woman and that I put none 
in the Record.
  I refer to my colleagues the testimony of Anne R. Davis, M.D., before 
the House Subcommittee on the Constitution on March 25, 2003.
  Mr. President, she says it puts patients at risk, and she goes on 
about it. She goes into great detail. I will not take the Senate's time 
because it is highly technical and it has to do with medicine, and this 
is not, as I said, a doctor's office. It is the Senate floor.
  It goes on for pages and pages. The bottom line is, she is saying 
there are times when this procedure that is banned is the one that is 
necessary to protect women. As a matter of fact, she has a whole 
section titled: ``The bill lacks necessary exceptions to protect 
women's health and their lives.'' And she goes through that.
  This is the first document for the Record. It is 11 pages. I hope 
Senator Santorum will take the time to look at that.
  Then I have a very important letter from another OB/GYN. As a matter 
of fact, she is an adjunct professor in the Department of Obstetrics, 
Gynecology, and Reproductive Sciences at UC-San Francisco where she 
directs the Center for Reproductive Health Research and Policy. She 
says she represented the United States at the International Conference 
on Population and Development. She served on a number of boards of 
organizations that promote emergency contraception and new 
contraceptive technologies and supports reducing teen pregnancy. I hope 
my friends agree that is a good idea. Her area of expertise is family 
planning and reproductive health.
  Very clearly in her four-page letter to us--again, a lot of which is 
technical--she lists these very problems of what could happen to a 
woman if there is no health exception in the bill. Here is what she 
says: Death, infertility, paralysis, coma, stroke, hemorrhage, brain 
damage, infection, liver damage, and kidney damage.
  The Senator from Pennsylvania said I never put anything in the Record 
that said if they cannot use this procedure that is banned in this bill 
there would be problems. Here is another, Felicia Stewart, M.D., with 
the highest qualifications you would ever want to have if you ever 
needed to go to an OB/GYN, which none of my male colleagues would ever 
have to do, but my female colleagues would have to do.
  I ask unanimous consent to print this letter in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                    March 5, 2003.
     Hon. Barbara Boxer,
     U.S. Senate, Hart Building,
     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 
     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 (dtx, 
     sometimes referred to as ``intact d&e), dilation and 
     evaculation (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 it 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 a review of 700 
     hysterotomies, rightfully concluded that the operation is 
     outdated as a routine method for terminating pregnancy. 
     (original in bold). 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 health. 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, 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.

  Mrs. BOXER. Mr. President, I have another letter from the American 
Public Health Association. The American Public Health Association 
opposes the bill because it fails to include adequate health exception 
language and where certain procedures may be determined by a physician 
to be the best way to preserve the health of the woman.
  There we go, the American Public Health Association is concerned 
about women's health.
  I ask unanimous consent that this letter from the American Public 
Health Association be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            American Public Health


                                                  Association,

                                   Washington, DC, March 31, 2003.
     House of Representatives,
     Washington, DC.
       Dear Representative: On behalf of the American Public 
     Health Association (APHA) the largest and oldest organization 
     of public health professions 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 
     woman's

[[Page S11597]]

     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 opposed 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
                                    Georges C. Benjamin, MD, FACP,
                                               Executive Director.

  Mrs. BOXER. Mr. President, I have another letter from Lynn Epstein, 
president of the American Medical Women's Association in Alexandria, 
VA. They strongly oppose this ban, and they say it fails to protect the 
health and safety of women and their children. So that is another.
  I ask unanimous consent that letter be printed 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 
     decision 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 health and lives of women. Furthermore, the current ban 
     fails to meet the provisions set forth by the Supreme Court 
     in Steinberg 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.

  Mrs. BOXER. Mr. President, here is another letter from the Physicians 
for Reproductive Choice and Health. They are located in New York. They 
say the legislation is dangerous because it is vague and there is no 
health exception. They also add something I think they are absolutely 
right on about. Politicians should not legislate medicine.
  This is the first time any Congress has ever outlawed a medical 
procedure that is supported by the medical community. You may find a 
few doctors who don't, but the organizations all do. They are very 
concerned that women's health is not being respected or cared about.
  I ask unanimous consent to print this letter from Physicians for 
Reproductive Choice and Health in the Record.
  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 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 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 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 womens that right is unconsicionable 
     and dangerous.
       The American College of Obstetricians and Gynecology, 
     representing 45,000 obgyns, 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 evaculation (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 that 
     the cervix must be further dilated. Morbidity and mortality 
     studies 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.

[[Page S11598]]

     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 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 damages to thousands of 
     women and families. We can safety 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. Mr. President, here is another one. Senator Santorum said 
we had no documentation that the ban would hurt women's health. This is 
testimony of Vanessa Cullins, vice president of Medical Affairs of 
Planned Parenthood. She is a board-certified OB/GYN with a master's 
degree in public health and business administration. She talks about 
the fact that this bill prevents doctors from exercising necessary 
discretion and how that is dangerous. She says it outlaws techniques 
that are critical to the lives and health of American women.
  Mr. President, I refer to my colleagues the testimony of Vanessa 
Cullins, M.D., before the House Subcommittee on the Constitution on 
March 25, 2003.
  Mr. President, then there is the UCSF Center for Reproductive Health 
Research and Policy. Their first objection to the bill: It fails to 
protect women's health by omitting an exception for women's health.
  I ask unanimous consent to print this letter in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         University of California, Center for Reproductive Health 
           Research & Policy
                                 San Francisco, CA, 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 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 on 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 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.

  Mrs. BOXER. Here you go. We have all of these documents that clearly 
say the problem with this bill is it makes no health exception; it is 
vague; it is dangerous for women.
  The fact is, the bill passed the Senate. We had these arguments and 
the bill passed the Senate, but the great news about that debate is 
that Tom Harkin offered his amendment, and that is the subject of the 
vote we are going to have, where I hope everyone votes to disagree with 
what the House did because what the House did is it stripped out of the 
bill this very important language that deals with Roe v. Wade.
  What did it say? The decision of the Supreme Court in Roe v. Wade was 
appropriate and secures an important right and such decisions should 
not be overturned.
  It just shows you the real desire of the anti-choice Members of the 
Congress. They could have taken this language, which has no force of 
law--it is a basic statement, an important statement, a crucial 
statement, in my opinion, but it has no force of law. It doesn't say we 
say Roe v. Wade shall never be overturned and we pass legislation which 
embodies Roe. We have not done that. I wish we could, I hope

[[Page S11599]]

we will, and I think some day we will. I think it is going to take a 
pro-choice President, but I think some day we will make Roe a law that 
is actually signed rather than just a court decision. I have offered 
bills to do that. We have not moved forward because we have had to 
fight off so many other attempts to restrict Roe.
  Indeed, the House could have taken the bill which bans this procedure 
without a health exception with this language, and it would have been 
on the President's desk. But they are so against Roe--that is what this 
is all about--that they had to strip it out, even to slow down the 
bill.
  That is what we are here today discussing: whether the House was 
right to strip out this sense-of-the-Senate Harkin amendment. We have 
had a good debate so far. We have some time left. Senator DeWine is 
going to speak for the rest of the time this morning, and we will have 
more time to finish our debate, whether it is before the storm comes or 
after the storm comes. I don't know how we will resolve that situation.
  We will have more debate. It is a very important debate. It is an 
important debate because before Roe became the law of the land, women 
died. One could argue how many. I am not going to get into the 
argument. I have evidence it was 5,000. Senator Santorum says his 
evidence is it is 85. One is too many.
  Abortion should be legal in the very early stages, as Roe says. After 
that, the State should be able to come in and set rules and to say 
after viability one cannot have any abortion, except to save the life 
and health of the woman. That is the bottom line of Roe, and that is 
why we are arguing so strongly that this Senate should go on record 
disagreeing with what the House did so that when this bill goes over 
across the street to the Supreme Court they can look at this record, 
which we will make sure they look at, and see that the Senate, while 
voting to ban this procedure without a health exception, also said do 
not overturn Roe.
  To me, that is a signal to the Supreme Court that they should rule 
the bill unconstitutional. We would have been happy to vote for that 
bill with the health exception. I do not understand why a group that 
calls itself pro-life will not stand up for the life and health of a 
woman. I do not understand it.
  Look, I respect it because this is America and everyone has a right 
to his or her opinion, as strong as it may be. I do not mind that. I 
think it is great. It is what makes our democracy great, that we can 
have these debates and discussions, but I do not understand how a 
movement that calls itself pro-life can be that disinterested in the 
health and the lives of women.
  Women are not just vessels that carry babies to term. Women are human 
beings who deserve to be respected, admired. They need dignity. A woman 
does not just say, oh, I woke up one morning; I do not want this baby 
at the late stage; I think I will change my mind. If my colleagues 
think that about women, they do not know women. We are the nurturers.
  Roe v. Wade was a decision that weighed the rights of women with all 
the other rights that compete, and it came up with what I consider to 
be a very wise and moderate decision, which is before viability a woman 
has the right to choose and Senator Boxer, Senator DeWine, Senator 
Santorum, no Senator, no matter how powerful, no House Member, no 
President has a right to get involved in the decision that she makes 
with her doctor, her God, and her loved ones.
  We are not her loved ones. I know we want to be loved by everyone--
most politicians do--but I can guarantee, we are not. We do not belong 
in the lives of our citizens at a point where the Court has clearly 
stated that they have the right and respect to make that choice 
themselves.
  So what did Senator Harkin do? He said: Let us have an amendment that 
says Roe v. Wade should not be overturned. We did it. We passed it and 
the House stripped it out. We are saying we want to vote to disagree 
with the House. This is Roe:

     . . . the preservation of the life or the health of the 
     mother--

  Must always be considered.
  I am very happy I was able to place into the Record the scientific 
articles which stated that, in fact, there were 5,000 women who died 
every year of illegal abortions. I pointed out that I do not trust 
numbers from the Government when the Government was about prosecuting 
people who had abortions. So I do not trust those particular numbers at 
that time.

  I also was able to place into the Record a number of articles, a 
number of letters, testimony from doctors who deal with these issues 
every day, not Senators who make up and do this for politics but 
doctors who take the Hippocratic oath to do no harm to their patients, 
who are telling us, please, do not go down this path; you are 
jeopardizing the lives of women.
  The Supreme Court is going to get this case, but I hope the Supreme 
Court also will note that we voted overwhelmingly to disagree with what 
the House did by stripping out the Harkin amendment that simply says 
Roe should not be overturned.
  I yield back my time, and I yield the floor.
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from Ohio.
  Mr. DeWINE. Mr. President, first, I would like to thank my colleague 
from Pennsylvania, Senator Santorum, as well as Senator Brownback, 
Senator Graham of South Carolina, and Majority Leader Frist for their 
unending and unwavering efforts to put a permanent end to this horrible 
partial-birth abortion procedure.
  During the time we have served together in this body, they have never 
given up hope that this Congress and this country would put an end to 
this barbaric procedure.
  Let me also thank my colleague from the State of Ohio, Congressman 
Chabot, for his tremendous work in this area as well. He has remained 
dedicated and continues to be focused on this effort.
  It is time that this Senate, this Congress, this country banned a 
procedure that is inhumane and that has absolutely no medical purpose 
and that is, quite simply, morally reprehensible. There is no debate 
about these facts. There is no debate about what takes place during a 
partial-birth abortion. I submit to my colleagues that the more we know 
about this procedure, the worse it is. The more we know about it, the 
clearer it is that we must oppose it. The more we know about it, the 
easier it is to ban it once and for all.
  This is a procedure in which the abortionist pulls a living baby feet 
first out of the womb and into the birth canal, except for the head, 
which the abortionist purposely keeps lodged just inside the cervix. As 
many of us have explained in detail on this Senate floor before, the 
abortionist then punctures the base of the baby's skull with a long 
scissors-like surgical instrument and then inserts a tube into the womb 
removing the baby's brain with a powerful suction machine. This causes 
the skull to collapse, after which the abortionist completes the 
delivery of the now-dead baby.

  These are the essential facts. No one has ever come to the Senate 
floor to dispute these facts. This is what a partial-birth abortion is. 
No one can deny the facts. I can think of nothing more inhumane and 
indifferent to the human condition.
  Every year the tragic effect of this extreme indifference to human 
life becomes more and more apparent as the procedure is performed all 
over this country. It is also, of course, performed in my home State of 
Ohio and actually performed within 20 miles of my home in Ohio. I have 
spoken on the Senate floor many times before about two particular 
partial-birth abortions that occurred in Ohio, and I will take a few 
minutes to recount these tragedies again. They were two typical 
partial-birth abortions, typical except for the way they turned out.
  On April 6, 1999, in Dayton, OH, a woman entered the Dayton Medical 
Center to undergo a partial-birth abortion. This facility was and 
tragically continues to be operated by Dr. Martin Haskell, one of the 
main providers of partial-birth abortions in this entire country. 
Usually, the partial-birth abortion procedure takes place behind closed 
doors where it can be ignored, where people do not really know much 
about it, but in this particular case the procedure was different. 
There was light shed upon it.
  This is what happened, and this is how light was shed upon it: This 
Dayton abortionist inserted a surgical instrument into the woman to 
dilate her

[[Page S11600]]

cervix so the child could eventually be removed and then killed. We 
have to understand that this procedure usually takes 3 or 4 days. This 
is not a quick procedure. It takes 3 days to do it. The woman went home 
to Cincinnati, expecting to return for the completion of the procedure 
in 2 or 3 days.

  In this case, though, her cervix dilated too quickly and, as a 
result, shortly after midnight of that day she was admitted to the 
Bethesda North Hospital of Cincinnati, in her hometown, and the child 
was born. The medical technician pointed out the child was alive but, 
sadly, apparently the chance of the baby's survival was slim and after 
3 hours and 8 minutes the baby died.
  The baby was named Hope. On the death certificate, of course, there 
is a space for cause of death or method of death. In the case of baby 
Hope, the method of death is listed as ``natural.''
  We, of course, know that is not true. We know all the facts. There 
was nothing natural about the events that led to the death of this tiny 
little child because baby Hope did not die of natural causes. Baby Hope 
died the victim of a barbaric procedure that is opposed by the vast 
majority of the American people. In fact, a Gallup poll conducted in 
January of this year shows well over 70 percent of the American people 
want to see this procedure permanently banned because the American 
people know it is wrong. They feel strongly about it. We as a Senate, 
Members of the Congress, should listen to the American people. But more 
importantly, besides listening to the American people, we need to 
listen to our own conscience. We know this is wrong.
  To almost underscore the inhumanity of this procedure, 4 months later 
it happened again; again in Ohio, again with the same abortionist. This 
time, though, something quite different occurred. Once again, in 
Dayton, this time on August 18, 1999, a woman who was 25 weeks pregnant 
went to Dr. Haskell's office for a partial-birth abortion. As usual, 
the abortionist performed the preparatory steps for this barbaric 
procedure by dilating the mother's cervix. The next day, the woman went 
into labor and was rushed to Good Samaritan Hospital--again, not what 
was expected.
  Remember, the procedure normally takes 3 full days, but she was 
rushed there in labor. This time, however, despite the massive trauma 
to this baby's environment, a miracle occurred and, by the grace of 
God, this little baby survived and, quite appropriately, she is today 
called baby Grace.
  These types of tragedies have been recounted by medical professionals 
who have been shocked by the events. There are other stories I would 
like to tell the Members of the Senate.
  Brenda Pratt Shafer, a registered nurse, was assigned to an Ohio 
abortion clinic in the early 1990s. She was assigned to the same Dr. 
Haskell abortion clinic.
  Nurse Shafer observed Dr. Haskell use the procedure, this procedure, 
to abort babies. In fact, she testified about it before our Senate 
Judiciary Committee in 1995. I would like to share with my colleagues 
what she said because she gave--this nurse did--very gripping, very 
telling testimony. Nurse Shafer described a partial-birth abortion she 
witnessed on a child of 26\1/2\ weeks. This is what she observed:

       The young woman was 18, unmarried, and a little over 6 
     months pregnant. She cried the entire 3 days she was at the 
     abortion clinic. The doctor told us I am afraid she is going 
     to want to see the baby. Try to discourage her from it. We 
     don't like them to see their babies.

  Nurse Shafer continues:

       Dr. Haskell went in with forceps and grabbed the baby's 
     legs and pulled them down into the birth canal. Then he 
     delivered the baby's body and arms, everything but the head. 
     The doctor kept the head right inside the uterus. The baby's 
     little fingers were clasping and unclasping, his little feet 
     were kicking. The baby was hanging there and the doctor was 
     holding his neck to keep his head from slipping out. The 
     doctor took a pair of scissors and inserted them into the 
     back of the baby's head and the baby's arm jerked out with a 
     flinch, a startle reaction like a baby does when he thinks he 
     might fall. The doctor opened up the scissors, stuck a high-
     powered suction tube into the opening, and sucked the baby's 
     brains out.
       Now the baby went completely limp. He cut the umbilical 
     cord and delivered the placenta. He threw the baby into a pan 
     along with the placenta and the instruments he had just used. 
     I saw the baby move in the pan. I asked the other nurse and 
     she said it was just reflexes. The baby boy had the most 
     perfect angelic face I think I have ever seen in my life.
       When the mother started coming around, she was crying. ``I 
     want to see my baby,'' she said. So we cleaned him up and put 
     him into a blanket. We put her in a private room and handed 
     her the baby. She held that baby in her arms, and when she 
     looked into his face, she started screaming: ``Oh, my God, 
     what have I done? This is my baby. This is my baby.''

  It is my prayer that there will come a day when I don't have to 
retell Nurse Shafer's story, that there will come a day when my 
colleagues, like Senator Santorum and Senator Brownback, the Presiding 
Officer, Majority Leader Frist, and the rest of us who have fought this 
battle will not have to come to the Senate floor and talk about 
partial-birth abortion. Nobody wants to talk about this. But until that 
day comes when this procedure has been outlawed in our country once and 
for all, we will have to continue to fight against this ghastly 
procedure.
  Now is the time to ban this awful procedure. It simply is the right 
thing to do. This Senate must do that.
  (The remarks of Mr. DeWine pertaining to the introduction of S. 1629 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. I ask unanimous consent to have the time until Senator 
Boxer returns.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. I am pleased to join with Senators Boxer and Harkin in 
the debate to reaffirm the protections guaranteed to women in the 
landmark Roe v. Wade decision.
  Let's be clear: The Republican leadership is trying to do something 
extraordinary on the Senate floor, something everyone who cares about 
the Constitution and women's rights should pay attention to. They have 
already done it in the House. The Senate, now, is the last line of 
defense.
  It is helpful if we look at the history of this debate to see why the 
Republican approach is a threat to women's constitutionally protected 
rights. Earlier this year, the Senate debated the so-called partial-
birth abortion ban. I joined with many of my colleagues in speaking 
against that proposal. I noted the bill was unconstitutional based on 
the Supreme Court's ruling in Stenberg v. Carhart. In that case, the 
Supreme Court struck down a similar law in Nebraska because it was too 
broad and because it did not include an exception for women's health.
  We made that case in the Senate, but we were repeatedly turned back. 
We also offered reasonable amendments to make sure this legislation 
would not threaten the lives or the health of women and to reduce the 
number of abortions in America. Opponents rejected almost all of our 
amendments. That showed me their real goal was not to reduce the number 
of abortions or to protect women but to use the power in Congress to 
overturn Roe v. Wade.
  As the debate continued in the Senate, my suspicion was confirmed. 
For example, I introduced a prevention amendment to reduce the number 
of abortions. My amendment would have provided contraceptive equity in 
health plans, expanded education about emergency contraceptives, made 
emergency contraceptives available in the emergency rooms for victims 
of rape, and would have offered CHIP health insurance coverage to 
protect women. My amendment was defeated on a budget point of order.
  Senator Feinstein offered an amendment to protect the health of a 
woman. That amendment was defeated as well. That brings us now to the 
Harkin-Boxer amendment and the reason we are having a debate today. 
That amendment reaffirmed the Senate's support for the Roe v. Wade 
decision. It passed the Senate with a bipartisan vote of 52 to 46. The 
Senate was firmly on the record supporting the Roe decision. 
Eventually, that so-called partial-birth abortion bill passed the 
Senate, including the language supporting Roe.
  Then something happened, something completely undermined the will of 
this Senate. The Republican leadership tried to bring up the House 
version of the bill and send it to conference. Many Members objected. 
That is why we are here today, to completely disregard the will of the 
Senate. To disregard the fundamental rights afforded

[[Page S11601]]

all women in this country by the United States Supreme Court is 
unacceptable.
  I urge my colleagues to support this motion and send the amendment 
back to conference. The Senate needs to send the right message to the 
Supreme Court and to women across this country--that their inherent 
right of privacy and their right to make reproductive health care 
decisions will not be jeopardized. This is another attempt to 
circumvent the Supreme Court's ruling in the Stenberg v. Carhart case. 
The authors of this bill tried to get around the law of the land by 
inserting a section of congressional findings in their unconstitutional 
bill. These findings dispute the basis for the Supreme Court's 
decision, and they state that Congress finds the partial-birth abortion 
ban legislation to be constitutional.
  The authors of this legislation claim that congressional findings are 
all that is necessary to ensure a law is constitutional. That is a bit 
optimistic on their part, and it ignores past congressional findings 
that were ignored by the Court.
  The Court struck down the Nebraska law for one reason. It did not 
contain any consideration for the health of the woman as prescribed in 
the original Roe decision.
  Telling the Court that Congress does not find women's health to be 
important does not meet the constitutional test.
  It is somewhat surprising that opponents of this motion would now 
argue that talking about Roe or the constitution protections provided 
in Roe is not relevant.
  One of the reasons I opposed S. 3, the so-called Partial Birth 
Abortion Act, was because I know this legislation is unconstitutional. 
It simply does not meet the constitutional test that requires providing 
some consideration for the health of the woman.
  The Court has been extremely clear on this point.
  We are voting to ban a legal, safe medical procedure that is used to 
save the life and health of women. Proponents of this legislation will 
argue that S. 3 does not undermine Roe, that it does not jeopardize a 
woman's life or health, and that it simply bans one procedure. I think 
we all know the true objective here. It is to overturn Roe piece by 
piece.
  The other side claims they are not seeking to overturn Roe but, 
rather, to protect women and the unborn. If they really believe this 
and they are not concerned with a constitutional challenge, they should 
support the Harkin-Boxer amendment. This amendment should be part of 
any final legislation.
  I think it is important to discuss what Roe did and did not say.
  I often hear that Roe allows for abortion on demand at any stage of 
the pregnancy. That is simply not true. The Justices worked very hard 
to achieve a balance between the privacy of the woman and the interests 
of the state. They found this balance by distinguishing between pre- 
and post-viability. The underlying issue in Roe was privacy.
  The Roe case built on the precedent established in Griswold v. 
Connecticut, which outlawed State laws that criminalized or hindered 
the use of contraception because they violated the right to privacy.
  In the Roe decision, the Supreme Court used this same right of 
privacy to prohibit laws that banned abortions performed before 
viability. After viability, the Court did rule that the State does have 
a prevailing interest to restrict abortion, which is why so few 
abortions are performed late in pregnancy. Eighty-eight percent of 
abortions are performed before the end of the first trimester of 
pregnancy, and 98 percent occur during the first 20 weeks.
  What the Court said regarding post-viability is that the State could 
restrict access, but the law must include a health and life exception. 
The Supreme Court found that the State's right to restrict or regulate 
abortion could not--and let me repeat, could not--jeopardize the life 
or health of the woman.
  It is disheartening to me that efforts to overturn or restrict the 
rights afforded in the Roe decision often exclude any consideration for 
the life or health of the woman.
  I have heard supporters of S. 3 claim that so-called partial-birth 
abortions jeopardize a woman's health and are never necessary to 
protect the health of the woman. If anyone doubts that Roe was not 
important for the life and health of a woman, they should consider the 
world before Roe.
  In 1973, abortion, except to save a woman's life, was banned in 
nearly two-thirds of our States. An estimated 1.2 million women each 
year were forced to resort to illegal abortion, despite the risks 
associated with unsanitary conditions, incompetent treatment, 
infection, and hemorrhage.
  Because the procedure was illegal, there is no exact figure on the 
number of deaths caused by illegal abortions in the U.S. One estimate 
that was made before 1973 attributed 5,000 deaths a year to illegal 
abortions.
  According to a 1967 study, induced abortion was the most common 
single cause of maternal mortality in California. The number of deaths 
per 100,000 legal abortion procedures declined from 4.1 percent to 0.6 
percent between 1973 and 1997. The choices women had prior to 1973 were 
often the choice between life and death.
  The Roe decision, coupled with the Griswald decision that gave women 
the right to contraceptives, finally gave women full and just 
reproductive choice.
  But again the Roe decision does not allow for abortion on demand. The 
decision placed the appropriate restrictions on late-term abortions 
without forcing women into the back alleys.
  Currently, 41 States have laws that restrict or ban post-viability 
abortions, except to save the life and health of the woman. This is 
consistent with Roe. Clearly, Roe did not result in abortion on demand 
at any stage in the pregnancy.
  today we are ready to turn back much of what was achieved in Roe by 
banning a safe medical procedure at any stage of the pregnancy 
regardless of the threat to the woman. S. 3 removes any consideration 
of the health of the woman. Personally, I believe the Court will strike 
down this misguided legislation when it passes. However, we should send 
the right message to the Court that the U.S. Congress supports the Roe 
decision and believes that the right of privacy is an important 
protection for all Americans.
  I am fortunate to represent a State that has twice voted to reaffirm 
Roe and to protect a woman's right to reproductive choice. In fact, in 
1998, a similar effort to ban a safe and legal abortion procedure was 
defeated in Washington State. People in Washington State understand the 
need to provide for the health and the life of a woman.
  In fact, a recent ABC News poll shows a majority of Americans support 
a health exception for the woman for late-term abortion. The poll--
which was just conducted in July--asked, if a late-term abortion would 
prevent a serious threat to the woman, should it be legal? Twenty 
percent said it should be legal in all cases, 41 percent said it should 
be legal if health is threatened--a total of 61 percent. This poll 
shows what many of us believe, that a woman's health is an important 
factor and consideration.
  This motion will give Members the chance to cast their vote either in 
support of Roe or in support of overturning this landmark decision. If 
you believe that women in this country should be afforded full 
reproductive choice, then you must vote to ensure that the Harkin-Boxer 
amendment remain part of any final conference agreement on S. 3. If you 
oppose this amendment, you are saying that you do not believe that the 
Constitution provides women with the right of privacy and that there 
should be no consideration for the health and life of the woman.
  I hope we don't turn back the clock on the floor of the Senate and 
place women in this country at risk again.

                          ____________________