[Congressional Record Volume 149, Number 128 (Wednesday, September 17, 2003)]
[Senate]
[Pages S11601-S11605]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            ROE ROE. V. WADE

  Mr. DODD. Mr. President, I express my cooperation, sense of 
solidarity with my colleague from California, Mrs. Boxer, and others 
under very unusual procedural circumstances. In my almost 24 years in 
the Senate, I cannot recall ever rising to speak on a motion to 
disagree with a House amendment on a Senate bill and request a 
conference. As all of my colleagues know, these motions are rarely if 
ever debated. They are routinely adopted. And

[[Page S11602]]

while this particular motion may well be adopted today or tomorrow 
there is nothing routine about it, because what we're discussing is one 
of the most divisive issues this country has ever faced--the issue of 
abortion, and specifically, the issue of whether or not the decision 
reached in Roe v. Wade should be the prevailing law of the land.
  When this legislation was initially before the Senate, Senators 
Harkin and Boxer introduced a simple sense of the Senate amendment that 
stated Roe v. Wade was a fair and balanced affirmation of a woman's 
constitutional right to privacy and self-determination. Of course, as 
Senator Boxer has pointed out, a woman's right to choose is not 
unlimited. As Roe v. Wade held, once a fetus becomes viable from a 
medical point of view, abortions may be regulated, although States must 
allow abortions when necessary to preserve a woman's life or health. 
Perhaps that's why a majority of Americans continue to support Roe v. 
Wade. Most Americans believe that this most difficult of decisions is, 
as an initial matter, best made in private by a woman and those with 
whom she chooses to share in the making of her decision--her doctor, 
her family, and her loved ones.
  Most Americans believe that politicians are ill-equipped to 
understand the unique, complex, and often wrenching factors that so 
often bear on whether or not a woman decides to terminate a pregnancy. 
And most Americans believe that abortion should be as it has 
consistently been for the past 30 years--safe, legal, and rare.
  There are those among my colleagues in the House and Senate who do 
not support the Harkin-Boxer language because they do not support Roe 
v. Wade. That is certainly their right, and they are entitled to the 
views they hold. In this Senator's view, however, eroding Roe v. Wade 
or repealing it outright would be a mistake of historic proportions, 
with devastating consequences for American women.
  The history of our Nation is one of securing and protecting freedoms 
and inalienable rights that we are all entitled to as American 
citizens. Eviscerating the rights annunciated by Roe v. Wade would run 
counter to this historic trend in our Nation's life. I look back on 
history and think about other times when attempts were made to repeal 
civil and privacy rights our citizens possessed. Obviously, prohibition 
comes to mind. We all know it was a social failure that resulted in the 
unregulated production of distilled spirits and other alcoholic 
substances that jeopardized the health of countless Americans. I think 
of the internment of Japanese-Americans during World War II, when tens 
of thousands of citizens were taken forcibly from their homes and 
livelihoods, and stripped of nearly all their possessions simply 
because of their ethnicity. And, of course, I think of our country in 
the aftermath of the Civil War, when the thirteenth, fourteenth, and 
fifteenth amendments to the Constitution--promising the full blessings 
of equality to all Americans regardless of race--were followed by a 
century of Jim Crow laws designed to deny those blessings to tens of 
millions of Americans.
  Surely, eroding or repealing Roe v. Wade would be considered a step 
of equal gravity and error because it would deprive half our population 
of a right that, while not unlimited, is fundamental to being an 
American.
  What would the implications of denying this right be? One need not 
look further than when abortions were deemed illegal in this country--
before Roe v. Wade was decided in 1973. Women were forced to seek 
abortions in back alleys and basements. Women were forced to seek 
abortion by many people wholly unqualified to perform the procedure. 
And we all know the results were disastrous to women in this country--
untold numbers of whom suffered sickness, permanent disability, and 
death.
  Surely, this not the kind of America we want for the women of our 
country, nor is it the kind of America we want for men who have wives, 
daughters, sisters, and nieces. Therefore, as this bill moves forward, 
I hope a majority of our colleagues will continue to support the 
constitutional protections given to women under Roe v. Wade.
  Mr. FEINGOLD. Mr. President, earlier this year, the Senate passed S. 
3, the Partial Birth Abortion Ban Act. I opposed that bill and instead 
supported a constitutionally sound alternative offered by my colleague, 
Senator Durbin. The Durbin alternative would ban post-viability 
abortions unless the woman's life is a risk or the procedure is 
necessary to protect the woman from grievous injury to her physical 
health.
  I understand that people on all sides of this issue hold sincere and 
strongly held views. I respect the deeply held views of those who 
oppose abortion under any circumstances. Like most Americans, I would 
prefer to live in a world where abortion is unnecessary. I support 
efforts to reduce the number of abortions through family planning and 
counseling to avoid unintended pregnancies. I have always believed that 
decisions in this area are best handled by the individuals involved, in 
consultation with their doctors and guided by their own beliefs and 
unique circumstances, rather than by Government mandates.
  I support Roe v. Wade, which means that I agree that the Government 
can restrict abortions only when there is a compelling State interest 
at stake. I feel very strongly that Congress should seek to regulate 
abortions only within the constitutional parameters set forth by the 
U.S. Supreme Court. That is why I supported the inclusion of language 
in S. 3 reaffirming the Senate's commitment to Roe and its belief that 
Roe should not be overturned. The Senate had a straight up-or-down vote 
on the Harkin amendment, and a majority of the Senate agreed to support 
the Harking amendment.
  The House was wrong to remove this language during its consideration 
of the bill. I sincerely hope that the final version of this bill that 
goes to the President's desk for his signature contains this important 
reaffirmation of Roe v. Wade.
  Mr. LAUTENBERG. Mr. President, I rise in strong opposition to the 
bill before us, S. 3. I voted against this bill and I do not intend to 
support the House position.
  When the Senate passed this bill, we added an important amendment 
offered by our colleague Senator Harkin. The amendment reaffirmed 
support for the Supreme Court's decision in Roe v. Wade. The only 
difference between S. 3 as the Senate passed it and then as the House 
passed it is Senator Harkin's amendment. The House stripped Senator 
Harkin's amendment from the bill.
  Since the Harkin amendment was a sense of the Senate and does not 
have the force of law, I must ask, why did the House remove this 
language? It does nothing to fix the harmful policy the underlying bill 
would establish.
  The Republican leadership and their anti-choice friends would like 
you to believe that removing the Harkin language is just a procedural 
motion. Don't be fooled. Stripping S. 3 of the Harkin amendment 
reaffirming Roe v. Wade shows us what the President and his anti-choice 
allies are really after. They want to overturn Roe v. Wade; S. 3 puts 
them on that path.
  A woman's right to choose is in greater danger now than it has been 
at any other time since the Supreme Court issued Roe v. Wade 30 years 
ago. The House's action neatly comports with an overtly anti-choice 
administration striving to undermine reproductive freedom.
  I thank Senator Boxer for offering the motion to disagree to the 
House action so that, at a minimum, we have an opportunity to talk 
about what is really going on.
  The underlying bill makes a pretense of protecting women but really, 
what we have here is a bill that takes away rights while doing nothing 
to help anyone. There is no such medical term as ``partial-birth'' 
abortion, and that is intentional. The anti-choice zealots who drafted 
that term want the bill to be ambiguous so it will have a chilling 
effect on physicians.
  If S. 3 is ultimately passed and President Bush signs it into law--he 
will become the first U.S. President to criminalize safe medical 
procedures.
  Nobody is fooled by the real objective of S. 3 to chip away at a 
woman's right to choose, to criminalize legal and safe abortion 
procedures.
  This bill isn't even constitutional. There is no exception for the 
health of the mother. When we debated this bill back in March those of 
us who are pro-choice said we will accept this bill if

[[Page S11603]]

you make an exception for the life and health of the mother. Yet 
sponsors have repeatedly resisted pro-choice lawmakers' attempts to 
include a health exception such as the Feinstein substitute, which was 
defeated.
  Five members of the current Supreme Court have invoked Roe to 
invalidate a State ban on so-called partial-birth abortions.
  During last night's debate, the junior Senator from Pennsylvania 
characterized the Harkin amendment--a reaffirmation of current law--as 
extreme. That is absurd. Not being will to protect a woman's health is 
extreme. It is extreme and it is wrong.
  Taking away the freedom of women to make choices about their own 
reproductive health--that sounds like one of the reasons why we kicked 
the Taliban out of Afghanistan.
  I urge my colleagues to defeat this ill-disguised attempt to overturn 
Roe v. Wade.
  Ms. MIKULSKI. Mr. President, I rise today in support of the Harkin/
Boxer motion and the Roe v. Wade decision that was made by the Supreme 
Court over 30 years ago.
  The Supreme Court's acknowledgment of the fundamental ``right to 
privacy'' in our Constitution gave every woman the right to decide what 
to do with her own body. Since that historic day, women all across the 
country and the world have had improved access to reproductive health 
care and services.
  In March, the Senate passed a resolution supporting Roe v. Wade 
during the debate of the partial birth abortion bill. The resolution 
should be retained in the bill during conference. The Roe v. Wade 
decision is important to women's rights, women's health and public 
health.
  Because efforts have been made over the years to educate and inform 
women about their choices, unwanted pregnancies are at their lowest 
levels since 1974. Teenage pregnancies have declined almost 50 percent 
since 1987.
  While Roe v. Wade is still the law of the land today, it has been 
systematically challenged and weakened. What stands today is a hollowed 
version of one of our Nation's most important accomplishments for 
women. What keeps Roe from vanishing altogether is our unwavering 
commitment to protect a women's right to choice.
  I strongly support a woman's right to choose and have fought to 
improve women's health during the more than two decades I have served 
in Congress. Whether it is establishing offices of women's health, 
fighting for coverage of contraceptives, or requiring Federal quality 
standards for mammography, I will continue the fight to improve women's 
health.
  I believe that this bill is the first step in a plan by the 
leadership of this Congress to overturn Roe v. Wade. Congress must 
protect a woman's freedom of choice that was handed down by the Supreme 
Court over 30 years ago.
  This Congress must not turn back the clock on reproductive choice for 
women. I urge my colleagues to retain the resolution in support of Roe 
v. Wade in the final bill.
  Mr. VOINOVICH. Mr. President, I rise in strong support of the motion 
to proceed to conference on the Partial Birth Abortion Ban Act. We 
passed the legislation to ban this barbaric procedure on March 13, 
2003, by a vote of 64 to 33, and I am shocked that we are back on the 
Senate floor in September, still debating whether to send this bill to 
conference. Just imagine the number of lives we could have saved if we 
had sent this bill to the President 6 months ago, when we first passed 
it.
  The subject of partial-birth abortion is not a new one for me. Eight 
years ago, when I was Governor of Ohio, we were the first State to pass 
a partial-birth abortion ban, which was unfortunately struck down by 
the courts. Subsequent to that, I watched the partial birth abortion 
ban make its way through the 104th and 105th Congresses, only to be 
vetoed by President Clinton. After I arrived in the Senate in the 106th 
Congress, I gave a speech in support of a partial birth abortion ban 
that passed both Chambers, but never made it to conference. We cannot 
let this happen again. Now is the time to get this done.
  During debate on this bill, I listened to my colleagues quote 
statistics and spout off facts about medical necessity and the health 
of the mother. We can all quote different statistics, but the bottom 
line is that there is no need for this procedure. Most of these partial 
birth abortions are elective. They take 3 days to complete and are 
never medically necessary. If a mother really needs an abortion, she 
has alternatives available to her that are not as torturous as partial 
birth abortion.
  The victims of the partial birth abortions are human beings. I find 
it interesting that they are sometimes called living fetuses. Whether 
they are called babies or fetuses, no one seems to dispute the fact 
that they are living. In fact, they are human babies and they can feel 
pain. When partial birth abortions are performed, these babies are just 
3 inches away from life and, for that matter, seconds away.
  I strongly urge all of my colleagues to vote to send this bill to 
conference and stand up against what I refer to as human infanticide. 
This is not a vote on Roe v. Wade. This is a vote to eliminate a 
horrible procedure that should be outlawed in this country. In his 
State of the Union Address this year, President Bush again pledged to 
support the legislation and said, ``We must not overlook the weakest 
among us. I ask you to protect infants at the very hour of their birth 
and end the practice of partial birth abortion.''
  I urge my colleagues to vote in favor of this motion so we can send a 
bill to the President that will finally ban partial birth abortions in 
the United States of America.
  Ms. CANTWELL. Mr. President, I rise today to speak to the issue of 
protecting a woman's right to choose. I am here to reiterate what the 
majority of us in the Senate clearly expressed this spring on behalf of 
women when we voted on an amendment to S. 3, sponsored by the good 
Senator from Iowa, my colleague Senator Harkin.
  That amendment--in no uncertain terms--reaffirmed the sense of the 
Senate that No. 1, abortion has been a legal and constitutionally 
protected medical procedure throughout the United States since the 
Supreme Court decision in Roe v. Wade; and No. 2, the 1973 Supreme 
Court decision in Roe v. Wade established constitutionally based limits 
on the power of States to restrict the right of a woman to choose to 
terminate a pregnancy.
  Furthermore, the amendment firmly laid out the sense of the Senate 
that the decision of the Supreme Court in Roe v. Wade was appropriate 
and secures an important constitutional right and that the decision 
should not be overturned.
  Let me repeat that. A majority of my colleagues voted for the Senator 
Harkin amendment. That the House remove the amendment from S. 3 is a 
travesty and I must vehemently disagree with that action. It is 
incumbent upon the majority of those of us in this chamber who affirm 
the constitutional right to choose to send a clear message to the House 
as the bill goes to conference that Roe is still--and will continue to 
be--the supreme law of the land. My colleague from the State of 
California, Senator Boxer, has been a true champion on this issue. She 
is an unwavering and tireless advocate for women, the country--and the 
world over. On Monday, she revisited how we found ourselves in the 
position we are now. As Senator Boxer explained, the House returned S. 
3 to the Senate without the Harkin amendment affirming Roe.
  Because S. 3 is at the heart of this issue, I would like to spend 
some of my time speaking to this underlying bill, which is undoubtedly 
and unfortunately going to end up on the President's desk and which the 
President will most assuredly sign.
  If the President signs S. 3, he will be signing an unconstitutional 
measure into law. As I have said before, and at the risk of sounding 
like a broken record, Roe v. Wade held that women have a constitutional 
right to choose. However, after the point of viability--the point at 
which a baby can live outside its mother's body--States may ban 
abortion as long as they allow exceptions when a woman's life or health 
is in danger. Yet the legislation that comes before us and will go to 
the President lacks that important health exception and, therefore, 
fails to provide for a woman when her health or her life is in danger.
  In June 2000, the U.S. Supreme Court reinforced the importance of 
this health exception in Stanberg v. Carhart, which determined that a 
Nebraska law banning the performance of

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so-called ``partial birth'' abortions violated the Roe ruling by the 
Supreme Court.
  The Supreme Court has stated unequivocally that every abortion 
restriction, including bans on so-called ``partial birth abortion,'' 
must contain a health exception. The Court emphasized that, by failing 
to provide a health exception, the Nebraska law would place a woman's 
life in danger.
  That is exactly what the legislation before us today does as well: It 
places a woman's life in danger.
  Despite the Supreme Court's very clear mandate, this underlying 
legislation does not provide an exception for the health of the mother. 
For this reason, this legislation, like the measure that was struck 
down in Stenberg, is unconstitutional.
  Moreover, this legislation imposes an undue burden on a woman's 
ability to choose by banning abortion procedures at any stage in a 
woman's pregnancy. This bill does not only ban post-viability 
abortions, it unconstitutionally restricts women's rights regardless of 
where the woman is in her pregnancy.
  I fundamentally believe that private medical decision should be made 
by women in consultation with their doctors--not politicians. These 
decisions include the methods by which a physician chooses to treat his 
or her patients. Why should we decide that here on the Senate floor? 
Congressional findings cannot possibly make up for medical consultation 
between a patient and her doctor, but this will would undermine a 
physician's ability to determine the best course of treatment for a 
patient.
  Physicians must be free to make clinical determinations, in 
accordance with medical standards of care, that best safeguard a 
woman's life and health. Women and their families, along with their 
doctors, are simply better than politicians at making decisions about 
their medical care. And I don't want to make those decisions for other 
women.
  Three States, including my home State of Washington, have considered 
similar bans by referendum. All three failed. We considered this debate 
in my home State in 1998. The referendum failed decisively--by a vote 
of 57 to 43 percent.
  These so-called ``partial birth'' abortion bans--whether the 
proposals that have been before the Senate in the past or the one 
before us today--are deliberately designed to erode the protections of 
Roe v. Wade, at the expense of women's health and at the expense of a 
woman's right to privacy.
  The Supreme Court, during the 30 years since it recognized the right 
to choose, has consistently required that when a State restricts access 
to abortion, a woman's health must be the absolute consideration. This 
legislation does not only disavow the Supreme Court's explicit 
directive, but the advice of the medical community, and the will of the 
American people. We must continue to ensure that the woman of America 
have the right to privacy and receive the best medical attention 
available.
  I urge my colleagues to disagree with the actions of the House and 
demand that the amendment expressing the Sense of the Senate that Roe 
v. Wade was rightly decided be included in S. 3.
  Mrs. FEINSTEIN. Mr. President, I rise today to support the motion to 
disagree with the House message accompanying S. 3, the late-term 
abortion bill, and to speak today about a very important Supreme Court 
decision: Roe vs. Wade.
  A provision was included in the late-term abortion bill that passed 
the Senate in March recognizing the importance of Roe v. Wade in 
securing the constitutional right to choose and stating that this 
decision should not be overturned.
  This provision was a simple Sense of the Senate resolution. Let me 
read its exact language:

       (1) the decision of the Supreme Court in Roe v. Wade (410 
     U.S. 113 (1973)) was appropriate and secures an important 
     constitutional right; and
       (2) such decision should not be overturned.

  I am pleased that this amendment was added on a strong bipartisan 
vote of 52 to 46.
  Unfortunately, though, the similar House-passed late-term abortion 
bill lacks this language. Indeed, the House refused to agree to it.
  While I oppose both the House and Senate late-birth abortion bills 
because I believe that they are too broadly written, lack an exception 
for women's health, and are flagrantly unconstitutional, I strongly 
support the Roe v. Wade language we added to the Senate-passed bill. 
That is why I plan to vote for the motion to disagree today.
  The past 30 years, since the Supreme Court upheld a woman's right to 
choose, have brought a great deal of change for women in America. Some 
of that has been good, while some has not been so good.
  But now, in 2003, the right to choose is under attack--and more so, I 
believe, than any other time during the last 30 years. It's easy to 
take the right to choose for granted. For many women, it is all they 
have ever known. The option has always been available. I lived during a 
time, however, when an estimated 1.2 million women each year resorted 
to illegal, back-alley abortions despite the possibility of infection 
and death. I remember that time very vividly. In college during the 
1950s, I knew young women who found themselves pregnant with no 
options. I even knew a woman who committed suicide because she was 
pregnant and abortion was illegal in the U.S. I also remember the 
passing of a collection plate in my college dormitory so that another 
friend could go to Mexico for an abortion.
  Later, in the 1960s, I spent 8 days a year for 5 years sentencing 
women to California prisons. I even sentenced individuals who performed 
abortions because, at that time, abortion was still illegal in my 
State.
  I remember these cases particularly well. I remember the crude 
instruments used. I remember women who were horribly damaged by illegal 
abortions. In fact, the only way a case really came to the attention of 
the authorities was if the woman getting the abortion died or was 
severely injured.
  I will never forget one woman whom I sentenced to 10 years--the 
maximum sentence because she had been in and out of State institutions 
several times. I asked her why she continued to perform abortions. She 
said,

       Because women are in such trouble and they have no other 
     place to go, so they came to me because they know I would 
     take care of them.

  Not a year has gone by since I became U.S. Senator that some 
legislator hasn't proposed legislation that would compromise this 
right--that would return us to the days of the 50s, 60s, and early 70s. 
But, fortunately, we have been able to beat back many of these 
attempts, either in Congress or in the courts.
  What concerns me the most about the debate we are having today about 
Roe v. Wade is that it is the beginning of a long march to take women 
back 35 years, back to the passing of the plate at Stanford, back to 
the back-alley abortions and trips to Mexico, and back to the time when 
women could not control their own bodies.
  What we are hearing today is that some Senators are so uncomfortable 
with the right to choose that they want to strip out language that 
recognizes the importance of Roe v. Wade and that States, consistent 
with current Supreme Court jurisprudence and settled caselaw, that the 
decision should not be overturned.
  But it is because of Roe--and only because of Roe--that women have 
been able to decide over the past 30 years, in consultation with their 
doctors, about whether to terminate a pregnancy in the first trimester 
without interference from the state or federal government.
  Let me talk a little about this landmark opinion.
  In 1973, in Roe v. Wade, the Supreme Court decided that a woman's 
constitutional right to privacy includes her qualified right to 
terminate her pregnancy.
  The Court also established a trimester system to govern abortions. In 
that system, in the first 12 to 15 weeks of a pregnancy--when 95.5 
percent of all abortions occur and the procedure is medically the 
safest--the abortion decision and its effectuation must be left to the 
woman and her doctor.
  In the second trimester, when the procedure in some situations poses 
a greater health risk, States may regulate abortion, but only to 
protect the health of the mother. This might mean, for example, 
requiring that an abortion be performed in a hospital or performed by a 
licensed physician.

[[Page S11605]]

  In the later stages of pregnancy, at the point the fetus becomes 
viable and is able to live independently from the mother, the state has 
a strong interest in protecting potential human life. States may, if 
they choose, regulate and even prohibit abortion except where necessary 
to preserve the life or health of the woman.
  In 1992, in Planned Parenthood v. Casey, the Supreme Court 
specifically reaffirmed Roe's standard for evaluating restrictions on 
abortion after viability but eliminated Roe's trimester framework by 
explicitly extending the state's interest in protecting potential life 
and maternal health to apply throughout the pregnancy.
  Thus, under Casey, regulations that affect a woman's abortion 
decision that further these state interests are valid unless they have 
the ``purpose or effect'' of ``imposing a substantial obstacle'' in the 
woman's path.
  However, the bottom line is that in Casey the Court retained the 
``central holding'' of Roe v. Wade. As a result, women in all 50 States 
still enjoy the constitutional right to choose.
  The challenge for American men and women who support a pro-choice 
agenda will be to continue to make their voices heard in an environment 
that appears focused on nullifying all reproductive rights and trying 
to overturn Roe after 30 years.
  Roe v. Wade secured an important constitutional right--a right I 
strongly support.
  I am deeply concerned about passing a late-term birth abortion bill 
that doesn't include language recognizing the importance of Roe. That 
is why I believe that we should disagree with the House message 
accompanying S. 3.
  I urge my colleagues to vote to support the language in the Senate-
passed version of S. 3 regarding the importance of Roe v. Wade. We 
cannot--we must not--go back to a time without choice.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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