Congressional Record, Volume 149 Issue 128 (Wednesday, September 17, 2003)

[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.

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