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

[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.

____________________