[Congressional Record Volume 149, Number 148 (Tuesday, October 21, 2003)]
[Senate]
[Pages S12927-S12948]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PARTIAL-BIRTH ABORTION BAN ACT OF 2003 CONFERENCE REPORT--Continued
Mr. SANTORUM. Mr. President, I yield 10 minutes to the Senator from
Colorado.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. ALLARD. Mr. President, I commend the Senator from Pennsylvania,
Mr. Santorum, and Senator Frist for their leadership on this particular
issue. Both have worked extremely hard. I also commend the Presiding
Officer for his leadership for the rights of the unborn.
I am pleased to be a cosponsor of the Partial-Birth Abortion Act,
which is S. 3. This legislation is designed to help protect unnecessary
suffering of the unborn child and also to protect the mother. It
prohibits a partial-birth abortion, which is a partial delivery of a
living baby, the killing of a baby before complete delivery.
The bill allows partial-birth abortion except for the life of the
mother, and in cases where there is endangerment by physical disorder,
illness, and injury.
I will go through some of the bill's definitions, which I think say a
lot about what this bill is all about.
The term ``partial-birth abortion'' means an abortion which, first,
``the person performing the abortion deliberately and intentionally
vaginally delivers a living fetus until, in the case of a head-first
presentation, the entire fetal head is outside the body of the mother,
or, in the case of breech presentation, any part of the fetal trunk
past the navel is outside the body of the mother for the purpose of
performing an overt act that the person knows will kill the partially
delivered living fetus.'' That is the way it is defined in the bill.
Further, the term ``partial-birth abortion'' means an overt act, other
than completion of delivery, that ``kills the partially delivered
living fetus with this procedure.''
This type of abortion is called a D&X abortion, which would be
prohibited, also referred to as a dilation and extraction abortion. The
bill defines ``extraction'' as: ``Extraction from the uterus and into
the vagina of all of the body of a fetus except the head, following
which the fetus is killed by extracting the contents of the skull.''
After the baby's skull tissue is rooted out, then the remains of the
baby are removed.
I emphasize, this bill does not prohibit other abortions. For
example, it does not prohibit what is commonly referred to as D&E, or
dilation and evacuation, a procedure which includes dismemberment of
the baby inside the uterus, induction of preterm labor with the fetus
forced from the uterus, and suctioning of the baby out of the uterus.
It does not prohibit suction abortion, which involves scraping the
fetus apart from the placenta, or suctioning the baby out of the
uterus. It does not prohibit all other types of abortion that might be
applied, such as a Caesarian section or a hysterotomy.
The bill protects the life and safety of the mother. Partial-birth
abortion was never intended to be a procedure to protect the health of
the mother. This procedure has become a form of abortion. On the
contrary, we need a ban in order to protect the health of the mother.
It is a dangerous procedure, it is a fringe procedure, and it is
outside the mainstream of routine medicine.
[[Page S12928]]
The American Medical Association, for example, which is an
organization that is committed to medical excellence on behalf of
patients and professionals, opposes this procedure. The AMA has
described this procedure as unsafe and dangerous. The American Medical
Association has stated it is ``not good medicine,'' ``not medically
indicated.''
There are some specific exceptions: If the mother's life is in
danger. The bill allows abortion if endangered by physical disorders or
illness or injury.
In the bill, again, it says:
Any physician who, in or affecting interstate or foreign
commerce, knowingly performs a partial-birth abortion and
thereby kills a human fetus shall be fined under this title
or imprisoned not more than 2 years or both. This subsection
does not apply to a partial-birth abortion that is necessary
to save the life of a mother whose life is endangered by a
physical disorder, physical illness, or physical injury,
including a life-endangering physical condition caused by or
arising from the pregnancy itself.
I went through a lot of the procedures of the bill just to let the
Members of the Senate know how grotesque this procedure is. This bill
is necessary and important.
This legislation is designed to protect infants. Testimony in
committee indicates there is pain to the baby when this partial-birth
abortion procedure is conducted. Professor Robert White, who is
director of the Division of Neurosurgery and Brain Research Laboratory
at Case Western Reserve School of Medicine, testified before the
Constitution Subcommittee in 1995. These are his exact words:
The fetus within this time frame of gestation, 20 weeks and
beyond, is fully capable of experiencing pain. Without
question, all of this is a dreadfully painful experience for
any infant subject to such a surgical procedure.
The procedure should not exist or be permitted, in my view. It is
painful, morbid, inhumane, and simply barbaric. A majority of Americans
believe we should end this practice and it should be illegal except if
necessary to save the life of the mother.
The House and Senate have passed a number of times on this
legislation. We passed a partial-birth abortion bill from this body in
the 104th, 105th, and 106th Congresses. In the 108th Congress, both the
House and the Senate passed this ban--with a vote in the House of 181
for, 142 against. It was a bipartisan vote. Again, we had a bipartisan
vote in the Senate, where we had 64 for and 33 against.
It is important that we pass this particular legislation. The
President strongly supports S. 3. President Bush, in his State of the
Union Address, asked Congress to:
. . . protect infants at the very moment of birth, and end
the practice of partial-birth abortion.
We need to act now. I again thank my colleagues in the Senate who
have been such strong advocates of eliminating partial-birth abortion
except in situations threatening the life of the mother. I am pleased
we are acting now, and I thank my colleagues for their support of this
important ban for the Nation's children.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. After conferring with my colleague from California, we
set this in place. I will yield to the Senator from Illinois for 10
minutes. I ask unanimous consent that following that 10 minutes, the
Senator from Ohio be recognized for 10 minutes.
The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so
ordered.
Mrs. BOXER. Mr. President, I yield 10 minutes to the Senator from
Illinois. If he needs further time, I agree to an additional 5 minutes.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, this debate is not something I look
forward to on the floor of the Senate. This is one of the toughest
issues any elected official ever has to face. It is highly
controversial. In my home State of Illinois, in my hometown of
Springfield, virtually everywhere I travel, there is a strong
difference of opinion on the issue of abortion.
I understand that, and I really have to say as to all those who come
to the floor today on either side of this issue, we should never
question their motives because I think each and every one of us has
tried to search our soul to find out what is fair and what is just. In
many instances here, we are talking about things beyond our expertise
as individuals. Some of us are lawyers, some have other backgrounds.
Very few, if any of us, have medical credentials. But we come today to
consider something which is historic, and that is that we would ban in
the United States a medical procedure.
To my knowledge, that has never been done. It is being done here
under the pretense that it is the humane and right thing to do. Yet
when you speak to the professionals, those who do this for a living,
the obstetricians and gynecologists, they basically tell you, be
careful, because you can't really predict in every instance what a
mother might face late in a pregnancy. But this bill has decided that
regardless of the medical emergency that might face a mother late in
her pregnancy--regardless, we are going to eliminate once and for all
this medical procedure. I think that is a very historic and very
dangerous action.
I wonder if, in retrospect, we would do it in any other area of
medicine. But when it comes to the politically controversial area of
abortion, many politicians and elected officials just come roaring
through the door and say: Let me tell you what we are going to do and
what we are not going to do.
I have tried to look at this in honest and fair terms. Let me tell
you what I believe. I believe all late-term abortions should be
strictly construed and prohibited in almost every case. I only allow
two exceptions for any type of late-term abortion procedure: The life
of the mother, and where the mother faces grievous physical injury if
she goes through the pregnancy.
I said in an amendment I brought to the floor, just to make certain
we know what we are doing, two doctors have to certify that either her
life is at stake or, in fact, she runs the risk of grievous physical
injury. I can stand behind that. I can say in good conscience that
those are the only two exceptions for which I will stand.
But the bill before us today does not allow those two exceptions. If
a mother faces the possibility of grievous physical injury if she
continues the pregnancy, this bill will still ban a procedure which
some doctors believe is best for her under those circumstances.
Consider that for a moment. Consider what we are saying. Even if the
woman faces grievous physical injury, she has to continue the
pregnancy, or at least seek some other way of terminating the pregnancy
that might not be as good for her.
Don't take my word for it. Again, I am a lawyer, I am a legislator.
But the American College of Obstetricians and Gynecologists was asked
about this procedure, and this is what they said. When abortion is
performed after 16 weeks, intact D&X, which is what is called partial-
birth abortion here, is one method of terminating a pregnancy. This is
the important language from the professionals, from the obstetricians
and gynecologists. Listen closely:
The physician, in consultation with the patient, must
choose the most appropriate method based upon the patient's
individual circumstances.
If it were your wife whose life was at stake, whose physical well-
being were at stake, isn't that the standard you would want, that the
doctor and your wife and family would make the best decision,
appropriate to her medical circumstances? There is no doubt in my mind.
There is no doubt in the minds of the women who have come to tell me of
the sad stories of their pregnancies that ended so badly.
Yet in this bill we are saying, as politicians and legislators, we
want to step into that room in the doctor's office, we want to stand
between the doctor and the patient, and we want to make the
decision. We want to say to that doctor, regardless of what you think
is best for this woman who faces grievous physical injury if she goes
forward with the pregnancy, regardless of what is best for her in your
medical, professional opinion, we are going to take away from you one
procedure which you can use. It might be the best one for her, but it
is not the best one politically. That is why this bill is before the
Senate. That is a sad circumstance.
In one of the most frightening times in a woman's life, when she is
so late in her pregnancy that they have decorated the room for the
baby, picked the
[[Page S12929]]
name, they know what they will do when the baby comes home, she gets
the tragic news that something has happened no one anticipated. One of
the ladies from my State came forward. I met her a few years ago. Vicki
talked about having two children and a third child on the way. Here she
was, late in her pregnancy. She described the pregnancy as disgustingly
normal. At 32 weeks in the pregnancy, 8 months into the pregnancy, she
went in for an ultrasound and discovered the little boy she was
carrying had at least 9 major anomalies, including a fluid-filled
cranium with no brain tissue at all, compacted, flattened vertebrae,
congenital hip dysplasia, skeletal dysplasia, and hyperteloric eyes.
The doctor told her this baby will never survive outside the womb and
because of her physical condition he said she should terminate the
pregnancy if she wanted to live and if she ever wanted to have another
child.
Her husband, a doctor, sat down with her. They told me, personally,
of crying through the night, making this decision and finally deciding
they had to do this. And they did. She terminated this pregnancy with
the very procedure that is being banned by this bill. She did it
because she thought she had no choice. The doctor told her she had no
choice. Frankly, if this bill passes, that procedure would not be
available to her.
What has happened to Vicki since? The good news is she became
pregnant again and she delivered a son, Nicholas, a little boy I met
right outside the Capitol. This is a woman who did not want to be a
mother, who did not want to be pregnant? No. It is a woman who, through
no fault of her own, found herself facing a medical emergency and
deciding at the last moment, with her husband and her conscience, what
was the best thing to do. She chose the very procedure which is going
to be banned and prohibited by this bill.
That is unfortunate. There has been so much publicity back and forth
about abortion procedures. Trust me, there is no way to terminate a
pregnancy which is clean and sanitary and something you would want to
publicize on television. It is a gruesome procedure at any stage in the
pregnancy. Yet we have been led to believe this termination of
pregnancy is somehow much different.
When I came before the Senate and said, all right, I will go along
with terminating all late-term abortion procedures except when the
mother's life is at stake or she is running the risk of grievous
physical injury, we will require two doctors to certify that and will
penalize a doctor if he misrepresents or lies about that, I thought,
finally, we found a reasonable middle ground. Those who are opposed to
virtually all abortions still would not vote for that amendment. Even
though we had support of people who are pro-life and pro-choice, they
could not support it.
The Supreme Court, across the street, has told us what happens to
bills such as the one we are passing today. If you do not include a
provision in there to consider the health of the mother, grievous
physical injury, for example, if you do not include that provision,
then you fail by the Roe v. Wade test.
Do not ask this Senator to stand here and make this statement with no
evidence. The Court already mandated that decision in Stenberg v.
Carhart. Nebraska, in that case, struck it down, with virtually the
same language before the Senate today. They said it lacks any exception
for the preservation of the health of the mother. This bill lacks any
exception for the preservation of the health of the mother.
Why are we here today? Because some people understand that
regenerating this issue on a regular basis is good for some
politically. But it is not good for this Nation, not to have closure on
an issue or at least some reasonable compromise where we can limit all
late-term abortion procedures.
There are some who are opposed to all forms of abortion. I respect
their point of view. I respect the principles that bring them to that
decision. But for those who believe, as I do, that abortion should be
rare and should be safe, that we should limit it to the most
extraordinary cases, particularly late-term abortions, I offered an
amendment to do that. It was rejected. Instead, we have this bill
coming before the Senate, headed to the Supreme Court, which does not
include the exception necessary to protect the health of the mother--
protect the health of the mother I met, a woman who faced an
extraordinary medical emergency.
The PRESIDING OFFICER. Under the previous order, the Senator from
Ohio is recognized for 10 minutes.
Mr. DeWINE. Mr. President, I thank my friend and colleague from
Pennsylvania, Senator Santorum, Senator Brownback, Senator Graham,
Majority Leader Frist, also my colleague, Senator Allard, who spoke
just a moment ago, for their unending and unwavering efforts to put a
permanent end to this horrible partial-birth abortion procedure.
We are here today because a civilized society cannot tolerate this
type of procedure. With all due respect to my colleague, my friend from
Illinois, this is not about politics. This is about what kind of a
society we have, what kind of a country, what kind of a people we are.
This will be the third time for the Senate and the Congress to vote
to ban this inhumane procedure--a procedure which, I point out, has
absolutely no medical purpose. Time and time again, the testimony we
heard in front of our Judiciary Committee is this procedure is never--I
repeat, never--medically indicated. I also point out, just to make sure
there is a a provision in this bill that provides for a life-of-the-
mother exception, the testimony time and time again from all the
experts was this is never medically indicated.
This has been before the Senate before. We have voted on this before.
The difference today is after Congress votes to ban this procedure this
time, this time the President of the United States will sign this bill
into law. Soon, once this becomes the law of the land, the abortionist
will not be able to legally perform this brutal act on our society's
most innocent victims. Once this becomes the law of the land, the
abortionist will no longer pull living babies feet first out of their
mother's wombs, puncturing their skulls and sucking out their brains.
Those are the facts, much as we hate to talk about them.
I have come to the Senate before and talked about different specific
stories. I have talked about the story of Baby Hope. The stories of
little children like Baby Hope will no longer occur. I described before
in the Senate in detail the story of Baby Hope. This was the story
where the abortionist, Dr. Mark Haskell, in Dayton, OH, inserted, as he
has done thousands of times, a surgical instrument into this little
child--in this case, Baby Hope--into Baby Hope's mother to dilate her
cervix so Baby Hope could eventually be removed and killed. In this
case, Baby Hope's mother went home to Cincinnati expecting to return 3
days later to Dayton for the completion of the procedure. This is a 3-
day procedure. In this case, the mother's cervix dilated too quickly
and as a result Baby Hope was actually born but died shortly
thereafter.
Mr. President and Members of the Senate, on the death certificate
there is a space for the cause of death or ``Method of Death.'' In Baby
Hope's case, the method of death is written in with the word
``natural.'' Well, that, of course, is simply not true. There is
nothing natural about the events that led to the death of this tiny
little child. We all know that Baby Hope did not die of natural causes.
We cannot nor should we ever forget this tragedy, nor others like it
as recounted by medical professionals.
My colleagues may recall the story of Brenda Pratt Shafer, a
registered nurse who was assigned to Dr. Haskell's abortion clinic one
morning in the early 1990s. I have told this story on the Senate floor
many times.
Nurse Shafer observed Dr. Haskell use the partial-birth abortion
procedure to abort babies that day. In fact, she testified before our
Senate Judiciary Committee in 1995.
I would like to share with my colleagues again--and I pray that this
time will be the final time we have to tell this story on the Senate
floor--exactly what the nurse saw and what she testified to in front of
the Judiciary Committee.
Nurse Shafer gave very gripping, very telling, very truthful
testimony. This is what she said. She described the partial-birth
abortion she witnessed on a child that was 26\1/2\ weeks. This is what
she said:
[[Page S12930]]
The young woman was 18, unmarried, and a little over six
months pregnant. She cried the entire three days she was at
the abortion clinic. The doctor told us, ``I'm afraid she's
going to want to see the baby. Try to discourage her from it;
we don't like them to see the babies.''
The nurse 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 and
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 arms jerked out in 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 in the opening and sucked the baby's brains out.
The nurse continues:
Now the baby went completely limp. We cut the umbilical
cord and delivered the placenta. He threw the baby in a pan
along with the placenta and the instruments he had just used.
I saw the baby move in the pan.
I asked another 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.''
``I want to see my baby.''
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.''
Soon we will rest more easily knowing we are very near the end, very
near the day when we do not have to retell Nurse Shafer's story--the
day when my colleagues, such as Senators Santorum and Brownback and
Graham and 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 act. Nobody
wants to tell the story, to tell Nurse Shafer's story.
Now is finally the time we will ban this horrible, horrible
procedure. I look forward to this forthcoming vote in just a few hours
and our subsequent delivery of this bill to the President for his
prompt signature.
This is the right thing to do. The facts are there. The facts are
that this procedure is not medically indicated; it is not medically
necessary. We should be judged, I believe, not just by what we do in
society; I think we also should be judged by what we put up with, by
what we tolerate.
I say to my colleagues, no civilized society should tolerate this
type of action. We should say today, by our vote, we simply will not
tolerate this, that this is wrong. We cannot allow this to continue in
this great country of ours.
Mr. President, I thank the Chair and yield the floor.
The PRESIDING OFFICER (Mr. Crapo). Who yields time?
The Senator from California.
Mrs. BOXER. Mr. President, could you tell us how much time remains on
Senator Santorum's side and how much time remains on our side?
The PRESIDING OFFICER. The Senator from Pennsylvania has 38 minutes
remaining. The Senator from California has 58\1/2\ minutes remaining.
Mrs. BOXER. Would the Presiding Officer be so kind as to tell me when
I have used 20 minutes?
The PRESIDING OFFICER. Yes.
Mrs. BOXER. Thank you very much.
Mr. President, you have heard a tragic story here of a woman who had
an abortion who really did not want to have one. I have to tell you,
that is why I am so proud to be a pro-choice Senator, a pro-choice
American, a pro-choice Californian, fighting for that woman's right to
never, ever, ever have to have an abortion if she decided she did not
want one.
At the same time, I want the other side to understand that Roe v.
Wade is the law of the land and that at the early stages of a pregnancy
Government should stay out of a personal, private, moral, and religious
decision. That is exactly what being pro-choice means. It means the
woman described by my friend must never be forced to have an abortion,
ever, no matter what goes wrong with the pregnancy--no matter what--if
she insists on going through with it and wanting to have that child.
Regardless of the risk to her health, she has the right to do it. That
is what being pro-choice is about. Being anti-choice means that
Government will dictate that situation.
What we have here today and why our side has decided we wanted to
have another debate on this is because, just as the other side has
said, the anti-choice side has said this is a historic day, we agree.
This is, indeed, a historic day because, for the first time in history,
Congress will be banning a medical procedure that is considered
medically necessary by physicians, physicians who know. And we will put
those statements in the Record once again.
My colleague, Senator DeWine, very eloquently said this debate is
about what kind of a country we are. That is true. What kind of a
country would say to half of its population, ``We don't trust you; We
think you would choose murder''? What kind of a country would say to
its doctors, who take the Hippocratic oath, ``Do no harm. We don't
trust you. You are going to jail''? In this bill, they will go to jail
if they use this technique and it was not to save the life of a mother.
Imagine the circumstance where a doctor is making this decision: I
think my patient might die if I don't use this. My God, I have to read
the law. Oh, my God, she might live. How could I be sure? I am not
positive. I think she might die.
That woman lying in front of that doctor is in great danger. That is
why so many medical organizations and OB/GYNs are saying: Please,
Senators, stop playing doctor. When we were kids, we had a doctor's
set. We put on the white coat. If we want to do that, we should go get
our medical degree. But don't stand here and talk about the fact that
we can just make this a better country by outlawing medical procedures
without an exception for the health of the woman. What kind of country
does that? What kind of country says to half of its population: Yes,
you are important, but if you are lying on the table and you could wind
up being paralyzed or getting a stroke, you are just not that
important. What kind of country says that to women? That is why I am
here today. This bill is going to pass overwhelmingly. We know the
drill. This President is going to sign it. There is going to be a big
signing ceremony. There is going to be an immediate court suit. The
bill will be stayed. The debate will occur across the street in the
Supreme Court. This bill is the same bill essentially that was declared
unconstitutional before because the judges understand--maybe better
than my colleagues over here understand--the life and the health of a
woman is very important, and it must be protected in accordance with
the law.
We have been told by physicians--we have the statements in the
Record--that by banning this procedure, a woman might get a hemorrhage.
She might rupture her uterus. She could get very serious blood clots.
She could get a stroke, an embolism. She could have damage to nearby
organs. She could be paralyzed for life. Do you want to vote that way?
You have a chance. If you don't make a health exception, then you are
essentially saying women are just not that important.
If you love your mother, don't vote for this bill. If you love your
daughter, don't vote for this bill. Because if she finds herself in
this horrific circumstance of a pregnancy gone desperately wrong, where
the doctor informs her, perhaps, that the baby's brain is outside of
the skull, that there would be excruciating pain if the baby is born,
that she could lose her fertility, that she could perhaps suffer a
stroke, she won't be able to do anything about it. Is that what we want
to do here in the Senate?
In many ways this is an exercise in politics, because we believe very
strongly this bill will be overturned when it gets across the street.
It is not an exercise I take lightly when colleagues think so little of
the women of this country, of the mothers of this country, of the
daughters of this country that they would pass a bill with no health
exception.
I don't think that is what Americans want. When they really
understand this, they turn against it. If you hear it without the full
explanation, of course we say: Let's not do this procedure. But if you
say, but it may be necessary to save the life or health of a woman,
people say: OK, then at least allow it in those circumstances.
[[Page S12931]]
There isn't a Democrat on this side of the aisle who wouldn't have
voted for a health exception along with a life exception, and this
procedure would be banned. As a matter of fact, we have proposed--and I
have written legislation--banning all late-term abortions except for a
health exception and a life exception.
We all come here and say we know what Americans want. It is
interesting because, of course, we are trying to determine that.
Senator Sessions had a poll that said women in this country no longer
want the right to choose. That is what he said. I have a poll that
shows everyone in this country believes Roe is a fair balance and
should continue. But let me tell you what I think Americans want. Let
me tell you what I know Californians want. I don't speak for every
Californian. I couldn't. There are 35 million of us. But the vast
majority of us--and we have had amazing polls on this point--want
American women protected. They want children protected. They want
privacy protected. They want women respected. They trust women more
than they trust Senators. They want us to do the right thing, and they
know what the right thing is.
They understand Roe v. Wade took a very difficult decision and
explained it in a way that is a balance between all the rights
involved.
Here is what Roe v. Wade essentially says: In the first 3 months
after pregnancy, a woman has the right to choose and the Government
cannot get involved. After that, the Government can get involved. As a
matter of fact, after viability, the Government could ban all abortion,
which I support, except for the life or health of a woman. I happen to
believe that was a Solomon-like decision. It balanced all the concerns.
But the most important thing it did is it respected women for the first
time.
This was a struggle. Women died. The Senator from Pennsylvania says
it was only 85 women a year who died before Roe. We have evidence and
we have articles to put in the Record today that will show you we
believe the 5,000-a-year figure is more on the mark, because the 85 is
only a report to the CDC from States where abortion was legal and in
many States abortion was illegal in those years. Thousands of women
died.
As I said before, let's face it, that is what the underlying tension
is in the debate, because this particular procedure is done very
rarely. What is really at stake here is Roe v. Wade.
How do I know that? I know it because of the language used on the
other side over and over again: Killing children, killing children,
killing children. My God, as someone who wrote the Violence Against
Children Act, I have to hear people talk about the fact that women are
out there every day killing children, that doctors are out there
killing children.
Roe v. Wade is not about killing children. Roe v. Wade is about
respecting women to say this is a moral issue. This is a religious
issue. This is a family issue. This is a privacy issue. Government
should stay out in the early stages. In the later stages, government
can in fact legislate.
If you take the rhetoric used in the Chamber today and you
extrapolated it in a logical fashion, it means the other side thinks
all abortion is murder from the minute of conception. If there is a
murder committed, there is a murderer, and you have to say that is the
woman because, if you listen to their rhetoric, that is what it is
about. The doctor is an accomplice in this act. Frankly, I would have
more, shall we say, legislative respect for my colleagues--I have
personal respect for them, but I would have more legislative respect
for them--if they just came out and said, call it what it is: Abortion
is murder. That is why we threw out the Harkin amendment that was in
this bill supporting Roe. We think abortion is murder. We want women in
jail. We want doctors in jail. Maybe they even want the death penalty
for a woman. I don't know. I haven't probed them on it.
That is really what this debate is about. It is why it is important
to take the debate to the American people. The beauty of being pro-
choice is you totally respect the woman regardless of her view.
If she is 18 years old, or 17, or 19, and she wants to have that
child, a pro-choice American says: What can we do to help you make it
easier? But if she doesn't and it is something she wants to deal with
very early in the pregnancy, then just the same way, we say it is your
choice; we respect that choice.
This debate is a very important one, a very historic debate. It is
true that this bill has passed several times. We expect it to pass
today. But this is the first President who will ever sign a bill
outlawing a medically necessary procedure.
Now, I am going to prove it is a medically necessary procedure
because I am going to put in the Record a series of letters. First is
the ACOG statement, the American College of Obstetricians and
Gynecologists. We can play doctor all we want here. These are the folks
who are out there birthing our children, out there telling us month
after month, as we go back for our checkup when we are pregnant, how
important it is to have good nutrition, not to smoke, not to have
alcohol, how to protect that fetus and have a healthy baby. These are
the people who want healthy babies born. What do they say? They say:
The intervention of legislative bodies into medical
decisionmaking is inappropriate, ill-advised, and dangerous.
I will repeat that. The obstetricians and gynecologists from all over
this country told us that:
The intervention of legislative bodies into medical
decisionmaking is inappropriate, ill-advised, and--
The last word is powerful--
dangerous.
This bill, if it is upheld by the Court--which I don't believe it
will be--is putting women's lives in danger. Don't ask me; ask the
doctors. The testimony of Anne Davis is clear. She is a physician. She
is very eloquent on the point. She even says that the life exception in
the bill is very narrow, which is something I agree with, but I hope
the Court will look at that. She says this procedure that is about to
be banned by this bill may well be the safest procedure for women in
certain circumstances. She was very clear in her testimony.
I commend to my colleagues her testimony on March 25, 2003, before
the House Subcommittee on the Constitution.
Mr. President, the American Public Health Association writes:
We are opposed to [this bill] because we believe this and
other legislative and judicial restrictions to safe,
medically accepted abortion procedures severely jeopardize
women's health and well-being.
You are going to hear my colleagues on the other side say: This bill
doesn't hurt women's health--not a problem, not an issue. This bill
doesn't conflict with Roe. Why? Because they wrote in the findings that
this bill has nothing to do with the health of a woman. Please. Give
women just a little bit of credit here.
So here is the American Public Health Association clearly telling us
why they believe this is a jeopardy to women's health and their well-
being.
Then we have the American Medical Women's Association in a letter
they wrote to us. They strongly oppose this ban, and this is what they
say, because I think it is a very important thing they say here:
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 [this bill] is unconscionable.
Doctors are telling us this bill is ``dangerous.'' These doctors are
telling us that this bill puts women's health ``in jeopardy.'' Doctors
are telling us loudly and clearly that this bill is ``unconscionable.''
But it is going to be passed and it will get the signature of the
President and, if not overturned, it is going to hurt the women of our
country.
They go on to say:
Legislative bans for procedures that use recognized [OB/
GYN] techniques fail to protect the health and safety of
women and their children, nor will it improve the lives of
women and families.
I ask unanimous consent to have this letter printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S12932]]
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 Stenberg v. Carhart, a ruling that overturned a Nebraska
statute banning abortion because it contained no life and
health exception for the mother.
AMWA's position on this bill corresponds to the position
statement of the organization on abortion and reproductive
health services to women and their families.
AMWA believes that the prevention of unintended pregnancies
through access to contraception and education is the best
option available for reducing the abortion rate in the United
States. Legislative bans for procedures that use recognized
obstetrics and gynecological techniques fails to protect the
health and safety of women and their children, nor will it
improve the lives of women and their families. If you have
any questions please contact Meghan Kissell, at 703-838-0500.
Sincerely,
Lynn Epstein, MD,
President.
Mrs. BOXER. Then you have the Physicians for Reproductive Choice and
Health. They make a very good point--a point we have made over and over
again: 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 cannot even define it, which is one of
the things the Court said was too vague a definition. So why do you
think my colleagues are banning something called partial-birth abortion
when there is no such thing, according to physicians, as partial-birth
abortion? I will give you 10 seconds to think it over.
The PRESIDING OFFICER. The Senator has used 20 minutes.
Mrs. BOXER. I ask unanimous consent for 10 additional minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. I gave you 10 seconds to think about why we are banning
something called partial-birth abortion when there is no such medical
procedure. The answer is, it is a highly charged bunch of words. There
is no such thing as partial-birth abortion in the medical literature;
you either have a birth or an abortion. But it charges people up. It
gives you a picture that is not accurate.
This is what the Physicians for Reproductive Choice and Health tell
us:
Physicians need to have all medical options available in
order to provide the best medical care possible. It is
unethical and dangerous--
There is the word again ``dangerous''--
for legislators to dictate the details of specific surgical
procedures. Banning procedures puts women's health at risk.
``Risk,'' ``danger,'' ``jeopardy,'' and ``unconscionable'' are the
words that go along with this bill. They are not my words. They are
words of physicians who have lived their life to help women have
babies. That is what they are about.
Politicians should not legislate decisionmaking by doctors.
They call it medical decisionmaking.
To do so would violate the sanctity and legality of the
physician-patient relationship. To falsify scientific
evidence in an attempt to deny women their right is
unconscionable.
There it is. ``Unconscionable,'' ``dangerous,'' ``jeopardy,'' and
``at risk'' are the words we are being told. But we are going to vote
for this bill because it is about politics. It is easy to say I cannot
buy this procedure. We could have banned it completely. We could have
banned all late-term abortion completely with a life exception, health
exception. But, oh, no, I think the other side would rather have an
issue than make progress. That is not just me talking, that is very
anti-choice people who have said this is going to be overturned across
the street in 5 minutes.
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.
Hon. Jerrold Nadler,
House of Representatives,
Washington, DC.
Dear Congressman Nadler: We are writing to urge you to
stand in defense of women's reproductive health and vote
against H.R. 760, legislation regarding so-called ``partial
birth'' abortion.
We are practicing family physicians; obstetrician-
gynecologists; academics in obstetrics, gynecology and
women's health; and a variety of other specialties in
medicine. 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
decision-making in 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 refine
surgical techniques, it is always for the best interest of
the patient. The risk of death associated with childbirth is
about 11 times as high as that associated with abortion.
Abortion is proven to be one of the safest procedures in
medicine, significantly safer than childbirth, and in fact
saves 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 nay abortion 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 the details of 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 medical decision-
making.
To do so would violate the sanctity and legality of the
physician-patient relationship. The right to have an abortion
is constitutionally protected. To falsify scientific evidence
in an attempt to deny women that right is unconscionable and
dangerous.
The American College of Obstetricians and Gynecologists,
representing 45,000 ob-gyns, agrees: ``The intervention of
legislation 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
[[Page S12933]]
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 after the
first trimester, we will address those: dilation and
evacuation (D&E), dilation and extraction (D&X),
instillation, hysterectomy and hysterotomy (commonly known as
a c-section).
Dilation and evacuation (D&E) is the standard approach for
second-trimester abortions. The D&E is similar to first-
trimester vacuum aspiration exception that the cervix must be
further dilated because surgical instruments are used.
Morbidity and mortality studies indicate D&E is preferable to
labor induction methods (instillation), hysterotomy and
hysterectomy because of issues regarding complications and
safety.
From the years 1972-76, labor induction procedures carried
a maternal mortality rate of 16.5 (note: all numbers listed
are out of 100,000); the corresponding rate for D&E was 10.4.
From 1977-82, labor induction fell to 6.8, but D&E dropped to
3.3. From 1983-87, induction methods had a 3.5 mortality
rate, while D&E fell to 2.9. Although the difference between
the methods shrank by the mid-1980s, the use of D&E had
already quickly outpaced induction.
Morbidity trends indicate that dilation and evacuation is
much safer than labor induction procedures and for women with
certain medical conditions, labor induction can pose serious
risks. Rates of major complications from labor induction,
including bleeding, infections, and unnecessary surgery, were
at least twice as high as those from D&E. There are instances
of women who, after having failed inductions, acquired
infections necessitating emergency D&Es as a last resort.
Hysterotomy and hysterectomy, moreover, carry a mortality
rate seven times that of induction techniques and ten times
that of D&E.
There is a psychological component which makes D&E
preferable to labor induction, undergoing difficult,
expensive and painful labor for up to two days can be
extremely emotionally and psychologically difficult, much
more so than a surgical procedure that can be done in less
than an hour under general or local anesthesia. Furthermore,
labor induction does not always work: Between 15 and 30
percent or more of cases require surgery to complete the
procedure. There is no question that D&E is the safest method
of second-trimester abortion.
There is also a technique known as dilation and extraction
(D&X). There is a limited medical literature on D&X because
it is an uncommonly used variant of D&E. However, it is
sometimes a physician's preferred method of termination for a
number of reasons: It offers a woman the chance to see the
intact outcome of a desired pregnancy, to speed up the
grieving process; it provides a greater chance of acquiring
valuable information regarding hereditary illness or fetal
anomaly; and D&E provides 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 decreased chance of uterine perforations or tears
and cervical lacerations. The American College of
Obstetricians and Gynecologists addressed this in their
statement in opposition to so-called ``partial birth''
abortion when they said that D&X ``may be the best or most
appropriate procedure in a particular circumstances to save
the life or preserve the health of a woman, and only the
doctor, in consultation with the patient, based on the
woman's particular circumstances, can make this decision.''
It is important to note that these procedures are used at
varying gestational ages. Both D&E and D&X are options for
surgical abortion prior to viability. 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 damage to thousands of
women and families. We can safely assert that without D&E and
D&X, that is, an enactment of H.R. 760, 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,
Member Physicians.
Mrs. BOXER. Mr. President, I am going to read you the story of Viki
Wilson. Viki is a pediatric nurse. She lives in California. Her husband
Bill is an emergency room physician. The Wilsons were expecting their
third child when they received a devastating diagnosis at 36 weeks of
pregnancy.
I hope every colleague will listen to this story and, for a moment,
think about this couple and what they faced.
Viki was married to an emergency room physician. They were told after
36 weeks of pregnancy, of looking forward to this baby, that a large
portion of the brain was formed outside the skull and most of the
baby's tissue was abnormal. They were told by several physicians,
including geneticists and perinatologists that their daughter they
named Abigail could never survive outside her mother's womb, and that
the so-called healthy baby kicks that Viki had thought for sure she was
feeling were, in fact, seizures caused by the pressure as the baby's
head had lodged in her pelvis.
Think about how you would feel if you were that father, if you were
that mother, if you were that grandma, if you were that grandpa, if you
were the mother of Viki or the mother-in-law or the father or the
father-in-law or you were the brother of Viki or you were the brother-
in-law or you were the sister or you were the aunt. They learned this
pregnancy was doomed. They learned the baby they wanted so much could
never live outside the womb. They learned the risks of this continued
pregnancy to Viki, the very severe risks she faced.
They decided this procedure that is being banned today was the safest
and best procedure for Viki. They talked about it; they prayed on it;
they discussed it with their family; they discussed it among themselves
with their physicians. They brought in every specialist one can think
about, and they decided this was the best thing for Viki's family and
for her children and for her children she hoped to have in the future.
The Wilsons held a funeral for Abigail, and a playground at their
children's Catholic school is named in her honor. And then, very soon
after, the Wilson family welcomed a baby son, actually through
adoption. Is this the kind of person you want to harm? Is this the kind
of woman you want to put at risk? Is this the kind of couple to which
you are saying: Sorry, even if your doctors say Viki might have a
stroke, Viki might be paralyzed, no can do; we can't help you because
Senators playing doctor decided this procedure should no longer be a
choice, an option for a woman in a severe and tragic circumstance.
I have to tell you, I have looked inside my heart up and down. I do
not understand how we move forward as a society, how we move forward as
a compassionate country when we do something that can conceivably hurt
thousands and thousands of women and thousands and thousands of
families. We could have passed this bill in a nanosecond. Just make a
health exception. It would have met the objections of the Court with
the health exception and a little bit less vagueness on the procedure,
and we would have done something that would have been important. But,
oh, no, I guess in the end the women of this country just don't matter
that much.
I think this record is very clear. The physicians who know what they
are talking about, who deal with these pregnancies every day don't want
us to do this. The women, many of them very religious, who have been
faced with this crisis tell us: Please, please make a health exception
because if we didn't have this procedure, A, we might have died; B, we
might have been paralyzed; C, we might have been made infertile; D, we
might have had a stroke or embolism or damaged our nearby organs.
Why are we doing this? There is no such procedure called ``partial-
birth abortion.'' It is in every letter from the physicians. There is
no such procedure. It is a made-up term to make this debate what it
really is not about. It is a very sad day for us that we are banning a
procedure that I have proven, by putting into the Record letter after
letter from physicians, is necessary sometimes to save the life and
health of a woman. We are banning this with no health exception. This
is not the right thing to do.
This bill was stripped of the supportive language of Roe v. Wade that
this Senate passed twice--not once but twice--saying that Roe v. Wade
should remain the law of the land. Oh, no,
[[Page S12934]]
they were so radical in that conference committee, they kicked out that
very simple statement where most Americans agree that Roe v. Wade,
making this decision in the early stages of a pregnancy in private--
Government stay out of it; Senator Boxer, I might think you are really
a good gal, but stay out of my private life. They are right. I don't
deserve to be in it.
Senator Harkin has just come to the Chamber. He is the one who had
that amendment which was adopted by this Senate twice, and how proud I
was to stand with him. I wonder if it is OK with my colleagues, since
Senator Harkin has arrived, if I give him 10 minutes.
Mr. President, can Senator Harkin take about 10 minutes? Does the
Senator want more time?
Mr. HARKIN. Yes, if I can have a couple minutes.
Mrs. BOXER. Fifteen minutes, 20? I yield up to 20 minutes to the
Senator from Iowa.
The PRESIDING OFFICER. The Senator from Iowa is recognized for up to
20 minutes.
Mr. HARKIN. Parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state his inquiry.
Mr. HARKIN. Mr. President, are we under time constraints on this
measure?
The PRESIDING OFFICER. Yes, we are.
Mr. HARKIN. Will the Chair please state for the Senator what the
situation is right now in terms of this conference report?
The PRESIDING OFFICER. The Senator from California has 27\1/2\
minutes. The Senator from Pennsylvania has 37, almost 38 minutes.
Mr. HARKIN. I thank the Presiding Officer.
Mr. President, I wish to take a few minutes to talk about this
pending measure. First and foremost, I applaud the Senator from
California, Mrs. Boxer, for her unwavering leadership and commitment in
protecting a woman's right to privacy and to choose. No one has fought
harder and longer, both in the House and in the Senate and in all of
their public life, to protect a woman's right to choose than Senator
Boxer of California.
Senator Boxer has my highest esteem for all the work she has done to
make sure that the women of this country are not controlled by
ideology, by one religious belief, or by the actions of a male-
dominated Senate and House of Representatives and, I might add, now a
male-dominated Supreme Court.
We are going to vote this afternoon on this so-called late-term
abortion bill. I have serious questions about whether it will pass
constitutional muster. I don't believe it will. So what we are doing is
really a political exercise. This is what I call something to go out
and get the vote for, by exciting passions, arousing fears, and by
trying to state in overblown terms what this is all about.
The bottom line and what it really comes down to is whether or not
the health of the mother is a constitutionally protected right of women
in this country.
In 2000, the U.S. Supreme Court said similar State legislation was
not constitutional because it lacked a health exception. It was not
constitutional because there was no protection for the health of the
mother. So what does the Senate and the House do? Pass legislation that
still lacks the health exception. That is why it is unconstitutional.
I am also very disappointed that the conferees stripped from the bill
my sense-of-the-Senate resolution about a woman's right to privacy. I
had offered, as I had before, a simple statement that it was the sense
of the Senate that we supported the Roe v. Wade Supreme Court decision
and it should not be overturned. It passed 52 to 46. It was attached to
this late-term abortion bill which also passed the Senate. The Senator
from California said the conference took less than 5 minutes to drop my
resolution, without discussion.
Roe v. Wade is the moderate, mainstream policy American women have
come to rely on, and it took the conferees less than 5 minutes, without
discussion, to drop it. What that says to me is very startling.
Congress has turned its back on America's women--their right to
privacy, their right to choose. America's women are now second-class
citizens.
Let me again give a brief review of what I am talking about. On
January 22, 1973, the U.S. Supreme Court announced its decision in Roe
v. Wade, a challenge to a Texas statute that made it a crime to perform
an abortion unless a woman's life was at stake. That was the Texas law.
The case had been filed by Jane Roe, an unmarried woman who wanted to
safely and legally end her pregnancy. Siding with Roe, the Court struck
down the Texas law. In its ruling, the Court recognized for the first
time the constitutional right to privacy ``is broad enough to encompass
a woman's decision whether or not to terminate her pregnancy.''
It also set some rules. The Court recognized the right to privacy is
not absolute and that a State has a valid interest in safeguarding
maternal health, maintaining medical standards, and protecting
potential life. A State's interest in ``potential life'' is not
compelling, the Court said, until viability, the point in pregnancy at
which there is a reasonable possibility for the sustained survival of
the fetus outside of the womb.
A State may but is not required to prohibit abortion after viability,
except when it is necessary to protect a woman's life or health.
That is what my resolution was all about, to say we agree that Roe v.
Wade was an appropriate decision and should not be overturned.
Before the 1973 landmark ruling of Roe v. Wade, it is estimated that
each year 1.2 million women resorted to illegal abortions, despite the
known hazards of frightening trips to dangerous locations in strange
parts of town, of whiskey as an anesthetic, of ``doctors'' who were
often marginal or unlicensed practitioners, sometimes alcoholic,
sometimes sexually abusive, unsanitary conditions, incompetent
treatment, infection, hemorrhages, disfiguration, and death. By
invalidating laws that forced women to resort to back-alley abortions,
Roe was directly responsible for saving women's lives.
It is estimated as many as 5,000 women died yearly from illegal
abortions before Roe. Only 10 pieces of legislation were introduced in
either the House or the Senate before the Roe decision, but in the 30
years since the ruling more than 1,000 separate legislative proposals
have been introduced. The majority of these bills have sought to
restrict a woman's right to choose.
Unfortunately, what is often lost in the rhetoric and in some of
those proposals is the real significance of the Roe decision. The Roe
decision recognized the right of women to make their own decisions
about their own reproductive health.
The decision whether to bear a child is profoundly private and life
altering. As the Roe Court understood, without the right to make
autonomous decisions about pregnancy, a woman could not participate
freely and equally in society. Roe not only established a woman's
reproductive freedom, it was also central to women's continued progress
toward full and equal participation in American life.
In the 30 years since Roe, the variety and level of women's
achievements have reached a higher level. As the Supreme Court observed
in 1992:
The ability of women to participate equally in the economic
and social life of the Nation has been facilitated by their
ability to control their reproductive lives.
As I have often said, the freedom to choose on the part of women is
no more negotiable than the freedom to speak or the freedom to worship
in our Constitution.
I do not believe any abortion is desirable. I do not think anybody
does. I have struggled with this issue all my adult life as a father.
However, I do not believe it is appropriate to insist my personal views
be the law of the land and that I impose those on anyone else. So I
urge my colleagues to vote against the final bill, first because it is
unconstitutional, but also because by dropping the resolution we
adopted saying Roe v. Wade should continue to be the law of the land,
it sends the wrong message to American women. What it says is they are
not equal to men. They cannot make decisions for themselves. We men
will make those decisions for them. They do not have the same
protections under the Constitution in this bill. Somehow they are
second-class citizens.
[[Page S12935]]
I say to the women of this country, as I have said before on the
floor, they must be concerned about this.
We passed the resolution on Roe v. Wade 52 to 46. Well, that was a
win, I guess one might say, for upholding the belief that Roe v. Wade
continue to be the law of the land, but 46 Senators basically voted to
say Roe v. Wade ought to be overturned, that it should not be the law
of the land, that we need to go back in time to prohibit all abortions,
regardless.
I say to those who may think this is just one particular procedure
that we are somehow prohibiting here--and again I want to point out, as
the Senator from California so eloquently pointed out time after time,
this is the first time in the history of this Senate that Senators have
decided against a medical procedure, the only time we have somehow put
on the cloak of knowing better than doctors, professionals, and women
that somehow we politicians know better.
Aside from that, if my colleagues think this is all this is about,
they are sadly mistaken. That is not what this is about. I say to the
women of America, this is step one. I say especially to young women,
who sort of take it for granted--I mean, Roe v. Wade was 30 years ago,
ancient history in the United States of America--especially young women
who believe, as they have grown up, having this freedom to choose,
having the right to control their own reproductive health, if they
think this is something that inures to them because they were born in
America, they have another think coming. There are people who do not
want them to have that right. There are people in this Senate who want
to turn the clock back and say women have no right to make any decision
on their reproductive health. But, then again, isn't that what we had
in Texas before Roe v. Wade? That is what this country was like before
that.
The Supreme Court said no, there is something else that has to do
with the health of a woman, too, and a woman's right to control her own
body and a woman's right to privacy.
Again, I see where this is going with 46 votes in the Senate. Just
think, a couple of votes here or there in the next election, you can
kiss Roe v. Wade goodbye, because that is what will happen. And with
one or two Justices on the Supreme Court who feel this way, that will
be the end of Roe v. Wade. That will be the end for women who think
they have the right to control their own reproductive health in this
country--to make their own decisions. That is where this is headed.
I know Senators, many Senators have personal feelings about that.
Fine. There are Senators who believe very deeply that Roe v. Wade
should not be the law of the land, who believe it never should have
been decided that way, who believe that women should not have a right
over their reproductive health. There are people who believe that.
Fine, if they want to believe that for themselves, that's their
belief structure. But in this pluralistic society in which we live, in
which we respect each other's rights but do not try to impose our own
personal religious or moral beliefs on others, the Supreme Court really
did, in fact, reach a logical and I think fair and balanced approach.
Yet there are those who want to strip that away--that no matter
what--a woman does not have the right to make her own decisions and the
right to privacy. And what does that mean? Well, it will mean we're
going back to the back alley.
This, really, to me is more than just an issue about some narrow
procedure, I say to my friend from California. This is about whether or
not the women of this country are going to be treated as equals with
men or as second-class citizens. I ask the Senator from California,
rhetorically, what other times has the Senate said there are certain
medical procedures which applied to men that cannot be conducted? What
is next? Is there something else coming down the pike we don't know
about? I don't think it will affect men but it will affect women. It is
a holdover from mediaeval times, a holdover from the days in which
women did not have the right to participate fully in society. That is
what this is about more than anything else.
I thank the Senator from California for her courage, for her wisdom,
for her judgment, and for being so stalwart, making sure we know what
this battle is about. I think we see the writing on the wall here. It
is going to pass. It is going to pass. If the Supreme Court adheres to
its previous decisions, it will throw it out because there is no
exception for the health of the mother. I guess then there will be a
political issue to whip up emotions around the countryside.
I wish we could take emotions out of this and just talk about it on
the basis of what women want. I will close on this. I have often asked,
think to yourself, what would happen if we had 100 women sitting here?
I mean a cross section of America, liberal, conservative, moderate,
different religions, different ethnic backgrounds--just a good cross
section of women in America. Do you really think, down deep in your
heart, this would be passed before the Senate? No way. No way would
this ever pass. Or, if you had a majority of the women in the House of
Representatives? Absolutely not.
Women do make up more than half of our society. I forget, how many
women Senators do we have now?
Mrs. BOXER. Fourteen.
Mr. HARKIN. There are 14 out of 100. So women are drastically
underrepresented in the body. They are underrepresented on the Supreme
Court.
Women have made great strides. Fourteen is more than there were when
I came here--there were only one or two at the time I came here. They
are making strides.
What this says is we are going to turn the clock back. I don't want
to turn the clock back and neither does the Senator from California. We
have to make sure women in America have their constitutional right to
privacy, just like men. That is what this is really about.
I thank the Senator. I am proud to be on her side.
I retain the remainder of our time. I yield the floor and retain the
remainder of my time.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. I yield 10 minutes to the chairman of the Judiciary
Committee who has done incredible work on this legislation now for a
fourth Congress that he has been involved in moving this forward. This
moment of accomplishment here would not have happened except for the
great work of the Senator from Utah.
The PRESIDING OFFICER. The Senator from Utah is recognized for 10
minutes.
Mr. SANTORUM. I ask unanimous consent that following the remarks of
the Senator from Utah, the Senator from California be recognized under
Senator Boxer's time for 15 minutes.
The PRESIDING OFFICER. The Senator should be advised----
Mr. SANTORUM. Mr. President, while I have the floor, let me ask
unanimous consent that the vote on adoption of the conference report to
accompany S. 3, the partial-birth abortion ban bill, occur at 5 p.m.
today, provided that the time between the expiration of the current
time allocation and 5 p.m. be equally divided between Senators Santorum
and Boxer or their designees.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Utah is recognized for 10 minutes.
Mr. HATCH. Mr. President, I rise today because it is difficult for me
to understand how anybody could support this barbaric, heinous approach
toward abortion. The Senate passed S. 3, the partial-birth abortion ban
of 2003, with strong bipartisan support, 64 to 33, back in March of
this year. The legislation passed the House in June with similarly
strong bipartisan support, 282 to 139. We were then forced to debate
the motion to go to conference in September.
We completed the conference in September. Now we are finally able to
vote on passage of the conference report. Let's get on with it. This
has taken a long time in this Congress, but it also has taken 7 years
to get to this point. Even though the Congress has passed similar
legislation before, finally we will be able to send it to President
Bush, who will sign it into law.
I know the people of my home State of Utah recognize the importance
of this effort. The vast majority of people in Utah and, I believe, in
our country, recognize that the practice of partial-birth abortion is
immoral, offensive,
[[Page S12936]]
and impossible to justify. This procedure is so heinous that even many
who consider themselves pro-choice cannot defend it.
Senator Santorum should be applauded for his tireless efforts to
achieve this goal. His leadership has been essential and very much
appreciated. I admire his efforts to protect innocent human life,
especially here, where it is so graphically obvious this procedure
cannot be defended.
By now we have all seen Dr. B. Benoit's film of the 3-dimensional
ultrasound of the baby in utero, yawning and even smiling. This
appeared in the Evening Standard in London. It is a picture of an
unborn baby smiling inside the womb. It says: ``Picture Exclusive,
Proof Babies Smile in Womb.'' It is truly amazing and enlightening what
advancing technology has enabled us to see. This truly is an incredible
window into the mother's womb, where it has to be clear to all who view
it that this is a living human being, a living baby.
Yet there are those who want to protect the ability to violently
crush this young life. In the case of the procedure we seek to ban with
this legislation, it is a baby just inches away from being born. Yes,
inches away from being born.
For those who may not have a clear understanding of this procedure,
let me describe it. This is a little graphic, I agree, but we need to
ensure that the American people understand what is going on. How anyone
can justify this barbaric procedure is beyond me. A baby is almost
fully delivered with only her head remaining inside the birth canal
when the doctor stabs scissors into the base of the baby's skull to
open a hole into which he then inserts a suction tube and sucks out the
brain so the skull collapses. Then they pull the baby out and say it is
not a living human being even though just seconds before this was a
full human being, a living human being with legs dangling and kicking.
I honestly do not know how anyone can avoid being truly sickened when
they see a baby being killed in this gruesome manner. It is not done on
a mass of tissue but to a living baby capable of living outside the
womb, capable of feeling pain, and at the time this procedure is
typically performed, capable of living outside the womb.
All this legislation does is ban the one procedure. As the testimony
in the House made clear, the fact is, there is no medical need to allow
this type of procedure. It is never medically necessary, it is never
the safest procedure available, and it is morally reprehensible and
unconscionable.
As I mentioned when we debated the bill in the spring, we have all
heard in recent years about teenage girls giving birth and dumping
their newborns into the trash can. One woman was criminally charged
after giving birth to a child in a bathroom stall during the prom and
strangling and suffocating the baby before leaving the body in the
trash. Tragically, there have been several incidents around the country
in the past few years. This should not surprise us. This is what
happens when we continue, as some would do here, to devalue human
life--those who would like to stop this bill by and large.
William Raspberry argued in a column in the Washington Post:
. . . only a short distance [exists] between what [these
teenagers] have been sentenced for doing and what doctors get
paid to do.
He got it right. When you think about it, it is incredible that there
is a mere 3 inches separating a partial-birth abortion from murder.
Partial-birth abortion simply has no place in our society and rightly
should be banned. President Bush has described partial-birth abortion
as ``an abhorrent procedure that offends human dignity.'' With that, I
wholeheartedly agree.
Basic human decency, I hope, will prevail. I pray that never again
will it be legal in this country to perform this barbaric procedure.
Unfortunately, I am sure the opponents of this measure will seek to
challenge the law in court where I hope good judgment will ultimately
prevail.
In Stenberg v. Carhart, the Supreme Court confirmed:
. . . by no means must physicians [be granted] unfettered
discretion in their selection of abortion methods.
The House has already passed this conference report. It is time for
this Congress to finish its work and send this bill to the President
for his signature.
Oddly enough, young girls out there, young women, are becoming more
and more opposed to abortion. I believe it has been this debate, this
barbaric procedure that is the cause for them to think it through and
to acknowledge that inside that womb of the mother is a living human
being, a living baby, and especially one capable of living outside the
mother's womb.
This is a serious debate. This is as serious a bill as we can have
before the Senate. I hope our colleagues will vote overwhelmingly to
pass the conference report as we simply have to get rid of this
barbaric and inhumane procedure.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I yield myself 20 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. I rise in opposition to the conference report
accompanying S. 3 which some, I think inaccurately, call the partial-
birth abortion bill. In fact, this bill, originally introduced by
Senator Santorum, is more accurately called the unconstitutional anti-
choice bill, given the fact that it is flagrantly unconstitutional and
its primary result will be to chill second-trimester abortion
procedures.
I voted against this conference report in the recent House-Senate
conference on this bill and also on the floor of the Senate last March.
This is the first bill since Roe v. Wade in 1973 that outlaws safe
medical procedures and recriminalizes abortion. It is a major step
forward in the march to obliterate a woman's right to control her own
reproductive system and to eviscerate the entire choice movement in
this country.
This bill is unconstitutional, I believe, for two reasons. First, it
uses a vague definition of dilation and extraction abortion, or D&X
abortion. This technique is also called intact dilation and evacuation,
or intact D&E. It is also sometimes called, inaccurately, partial-birth
abortion.
The sponsors of the bill have refused to use a definition of D&X that
I suggested and that tracks the medical definition submitted by the
American College of Obstetricians and Gynecologists. Why? Why would
they refuse to use a definition suggested by the elite medical group of
obstetricians and gynecologists who deal with this issue--a definition
that would enable those obstetricians and gynecologists to know exactly
what this legislation makes a crime?
I believe there is a reason. I believe that this bill deliberately
uses a vague definition of D&X in order to affect other kinds of
second-trimester abortions and thus impact the right to choose. Because
its definition is so loose, the bill would ban and otherwise interfere
with perfectly legal, permissible abortion techniques. It will also
have a chilling effect on doctors, who will be afraid to perform
abortions other than D&X for fear they will be subject to investigation
and prosecution. Why? Because the bill does not use an accepted medical
definition of D&X.
Second, the bill lacks any health exception. This has been spoken
about before, and I will do it again. The Supreme Court ruled in
Stenberg v. Carhart that any ban must have a health exception. This
bill has no health exception. Why are we bothering to pass a bill that
is so clearly unconstitutional?
The only reason I can think of is the proponents of the bill do not
believe the health of a mother is sufficient reason to interrupt a
pregnancy.
In fact, the supporters of the bill are not trying to remedy its
constitutional defects. Rather, they are just making minor alterations
to the findings in the bill.
I also oppose the bill because it omits language a majority of the
Senate added last March recognizing the importance of Roe v. Wade and
stating that this important opinion should not be overturned.
Unfortunately, as has been said, this language was stripped out in
conference over the strenuous opposition of Senator Boxer, Congressman
Nadler, Congresswoman Lofgren, and myself.
As an initial matter, I want to lay one myth to rest; that is the
myth that
[[Page S12937]]
most Americans support this bill. Supporters of the bill have
repeatedly and erroneously argued that a majority of the country
supports banning D&X abortion.
For example, in introducing this bill, Senator Santorum stated on the
floor that ``the American people clearly believe this is a procedure
that should be prohibited.''
However, such statements are not borne out by recent polls. For
example, last July, ABC News released a nationwide poll which showed 61
percent of Americans oppose bans on so-called partial-birth abortion
procedures if a woman's health is threatened. The bill now before us
contains no health exception. That means a substantial majority of
Americans think this bill is wrong.
I also want to mention a poll taken by Greenberg, Quinlan, Rosner
Research, Inc. between June 5, 2003, and June 12, 2003, of 1,200 likely
voters. The poll found a majority of Americans--56 percent--believe
abortion should be legal in all or most cases.
In addition, this poll found the country does not want the Government
involved in a woman's private medical decisions. Eighty percent of
voters believe abortion is a decision that should be made between a
woman and her doctor. In fact, even a majority of those who identified
themselves as pro-life said a woman and her doctor should make the
decision.
In stark contrast, this bill criminalizes safe abortion procedures,
and it puts the abortion decision in the hands of the Government and in
the hands of politicians, not the woman and her doctor.
I would now like to mention Randall Terry, the founder of Operation
Rescue, and the man who the New York Times called ``an 'icon' of the
pro-life movement.'' Mr. Terry is one of the staunchest foes of the
right to choose in the entire Nation. He is known for harboring views
so strong on the abortion issue that he has been jailed dozens of times
for blocking clinics and for having a human fetus delivered to former
President Bill Clinton. He is also known for speaking his mind.
Let me read some quotes from Mr. Terry in a press release issued
through the Christian Communication Network, dated just a month ago,
September 15, 2003. This press release is entitled: ``Randall Terry,
Founder of Operation Rescue Says, `Partial-Birth Abortion Ban is a
Political Scam but a Public Relations Goldmine.''
Let me repeat that: ``Partial-Birth Abortion is a Political Scam but
a Public Relations Goldmine.''
Mr. Terry says the bill before us is a ``Political Scam.''
Specifically, he states:
This bill, if it becomes law, may not save one child's
life. The Federal courts are likely to strike it down. . .
.The bill provides political cover in an election season to
cowardly ``pro-life'' political leaders who have done little
for the pro-life cause.
That is not me. I am quoting Randall Terry, the founder of Operation
Rescue.
Let me repeat: ``This bill, if it becomes law, may not save one
child's life. The Federal courts are likely to strike it down. . . .''
And he is right.
Mr. Terry then goes on to say:
If the President and Congress want to accomplish a small,
but real, step they should outlaw all abortions after 20
weeks--the age when a baby can live outside the womb.
Interestingly enough, his suggestion is similar to an amendment I
offered on the floor of the Senate and in the joint House-Senate
conference on this bill. This amendment would have banned all
postviability abortions except and unless a doctor determines such an
abortion is necessary to protect the life and health of the woman.
This is the way to go. If someone truly believes these abortions,
which are not medically defined in the bill, should not take place, and
if one believes the child is capable of life, then ban postviability
abortions. I was prepared to see that enacted into law. But it was
voted down twice, on the floor and in the conference committee.
I would like to take a moment to explain in detail why I think this
bill is poorly drafted and is virtually certain to be struck down by
the courts.
The conference report bill is unconstitutional for two reasons.
First, it attempts to ban the specific medical procedure it calls
``partial-birth abortion,'' but it fails to use the accepted medical
definition of what surgical procedure constitutes partial-birth
abortion. The refusal of the sponsors of the bill to accept the medical
definition of intact D&E is revealing. It makes it clear they are not
really intent or interested in banning intact D&E or D&X, but, rather,
they seek to muddy the waters to make it harder for women to get legal
abortion using other legal and acceptable techniques. That, in my view,
is the underlying purpose of the bill.
The Supreme Court ruled in Stenberg v. Carhart that any ban must have
a health exception. This bill clearly, despite many attempts by this
senator and others to put one in, has no health exception. The other
side has repeatedly opposed a health exception.
Here is what Justice O'Connor said in her deciding opinion in
Stenberg v. Carhart:
[B]ecause even a post-viability proscription of abortion
would be invalid absent a health exception, Nebraska's ban on
pre-viability partial birth abortions, under the
circumstances presented here, must include a health exception
as well. . . .The statute at issue here, however, only
excepts those procedures necessary to save the life of the
mother whose life is endangered by a physical disorder,
physical illness or physical injury. This lack of a health
exception necessarily renders the statute unconstitutional.
Now, I must ask you, why would anybody, after this case, with the
swing judge making that statement, draft a bill that so clearly
violates the Supreme Court's decision? Justice O'Connor has very
clearly said the ``lack of a health exception necessarily renders the
statute unconstitutional.''
The fact the sponsors are ignoring the clear words of the Supreme
Court is suspect to me. It is even more suspect given the fact that
just last year the U.S. Government took the position in court that any
ban on D&X must include a health exception. The Santorum bill, then,
not only contravenes the Supreme Court but also flies in the face of
the position taken by the U.S. Department of Justice.
Let me read from a brief filed by the United States in February of
2002 in Women's Medical Professional Corporation v. Bob Taft, a case in
the Sixth Circuit involving an Ohio statute prohibiting late-term
abortion including D&X. According to this brief:
the Court [in Carhart] stressed that the Nebraska statute
prohibited the partial birth method of abortion except where
that procedure was ``necessary to save the life of the
mother,'' . . . in violation of the Court's prior holdings in
Roe v. Wade . . . and Planned Parenthood of Southeastern
Pennsylvania v. Casey . . . that a State must permit
abortions, ``necessary in appropriate medical judgment, for
the preservation of the life or health of the mother . . . ''
The original brief even has the words ``or health'' underlined.
In other words, according to a brief filed by the United States
Government last year, under Carhart, Roe, and Planned Parenthood, a
State ``must'' provide a health exception for the woman. Yet we fly
merrily in the face of that. It is ridiculous.
Supporters of the Santorum bill argue that they can ignore this
language by throwing into the bill some questionable factual findings
that a health exception is unnecessary. Baloney. They argue that these
so-called findings make irrelevant the Supreme Court's constitutional
determination in Carhart that a health exception is necessary.
The Framers of the Constitution did not intend that Congress be able
to evade Supreme Court precedent and effectively amend the Constitution
just by holding a hearing and generating questionable testimony from
handpicked witnesses. In fact, the Supreme Court has made crystal clear
that Congress cannot simply ignore a constitutional ruling they dislike
by adopting a contrary legislative finding and telling the Court that
they have to defer to it. That is just what is being done here.
Let me quote Chief Justice Burger on this point:
A legislature appropriately inquires into and may declare
the reasons impelling legislative action but the judicial
function commands analysis of whether the specific conduct
charged falls within the reach of the statute and if so
whether the legislation is consonant with the Constitution.
So make no mistake about it. You can say anything you want in the
findings, and it isn't going to be dispositive
[[Page S12938]]
as to whether the statute meets the test of the Constitution of the
United States.
I also want to quote from U.S. v. Morrison, 529 U.S. 598 (2000), a
decision that struck down part of the Violence Against Women Act. I
personally disagree with this decision, but it is controlling law. In
that case, the Supreme Court held that ``the existence of congressional
findings is not sufficient, by itself, to sustain the
constitutionality'' of the challenged provision of the Violence Against
Women Act. That is on page 614.
So why are these findings in the bill? I believe the other side is
well aware of U.S. v. Morrison and other cases. Why are they doing it
this way then? There has to be a reason.
Here the sponsors of S. 3 are trying to do exactly what the Supreme
Court said the Congress cannot do: Use congressional findings to do
something that is clearly unconstitutional. The sponsors of this bill
are effectively trying to overturn binding Supreme Court precedent and
rewrite the Constitution by enacting a bill that on its face violates
Stenberg v. Carhart. They have clearly overstepped their bounds.
Mr. President, one of the most disappointing aspects of this debate
is that a majority of the House-Senate conference on this bill decided
to thwart the will of the Senate and strip out language recognizing the
importance of Roe v. Wade. This decision clearly unmasked the sponsor's
clear intention in introducing this bill: to strike at Roe. The
provision stripped out of the bill was a simple sense-of-the-Senate
resolution. Let me read its exact language:
One, the decision of the Supreme Court in Roe v. Wade, 410 U.S. 113,
1973, was appropriate and secures an important constitutional right.
Two, such decision should not be overturned.
They struck this language out. Why? Because they want Roe overturned.
That is the reason.
I am pleased that the Roe v. Wade amendment was added to the bill
last March on a bipartisan vote of 52 to 46. Unfortunately, the House-
passed late-term abortion bill lacked the language. The House refused
to agree to it.
While I oppose the criminalization of safe abortion techniques in S.
3, I strongly support the Roe v. Wade language we added to that
legislation.
The PRESIDING OFFICER (Mr. Chafee). The Senator has used 20 minutes.
Mrs. BOXER. Mr. President, I yield 4 additional minutes and retain
the remainder of my time.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. I thank the Senator from California.
In the past 30 years, since the Supreme Court upheld a woman's right
to choose, a great deal has changed for women in America. But now, in
2003, we are about to push women back to where they were in the 1950s,
a generation that I remember well, a generation of passing the plate to
raise money for abortions in Mexico, a generation of back alley
abortions, a generation of tremendous mortality and morbidity for
women, a generation of fear. It makes no sense.
The fact that a majority of the House-Senate conference stripped out
sense-of-the-Senate language that merely summarized Federal abortion
law should be exhibit A for anyone who doubts that this bill is really
a frontal political attack on choice in America.
I am also disappointed that the conference refused to accept a
commonsense amendment I offered to the bill before us today. That
amendment, as I said, would have banned all postviability abortions
except if determined by the doctor that such an abortion was necessary
to protect the life and health of the woman.
With that amendment, the sponsors of this bill could have gotten what
they wanted legally. Why didn't they take it? The reason they didn't
take it is because if you have an anti-choice bill with a nebulous,
vague definition, you can chill all legal second trimester abortions.
Let me tell you one more thing about the amendment I offered. To
ensure compliance with the amendment, we even provided that a doctor
who would perform a postviability abortion on a woman whose health or
life is not at risk could be fined up to $100,000. That amendment would
have put medical decisions back into the hands of doctors but, at the
same time, prevented abuses. In my view, if a doctor believes such a
procedure is necessary to protect a woman's life or health, then he or
she should be able to perform that procedure.
Why do some Senators believe that the Federal Government even needs
to be involved in this issue?
Why is this legislation even necessary? Roe v. Wade clearly allows
States to ban all postviability abortions unless it is necessary to
protect a woman's life or health, and 41 States already have bans on
the books. All States are free today to do so if their State
legislatures so choose.
The fact is, abortions this late in the pregnancy are rare and
usually performed under tragic circumstances, such as a brain outside
of a child's skull or vital inner workings outside of the body that
cannot be connected.
Mr. President, the whole focus of many in this Congress and in the
conservative movement has been to give power and control back to the
States and eliminate the Federal Government from people's lives. So
anyone who believes in States' rights must now question the logic of
imposing a new Federal regulation on States in a case such as this,
where States already have the authority to ban postviability abortions
and where a dominant majority of States--41--have already enacted such
a law.
Is Federal legislation really necessary? No. I say to my colleagues
that this clearly is a political bill designed to fan the flames and
invade Roe v. Wade and weaken it substantially. It attempts to ban a
medical procedure without properly identifying that procedure in
medical terms.
Mr. President, I ask unanimous consent that a number of letters
demonstrating that this legislation poses a serious threat to women's
health be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Association of Reproductive
Health Professionals,
Washington, DC, October 20, 2003.
U.S. Senate,
Washington, DC.
Dear Senator: We are writing on behalf of thousands of
health care providers to urge you and your colleagues to
oppose federal legislation criminalizing safe abortion
procedures (S. 3, the so-called ``Partial Birth Abortion Ban
Act of 2003'').
This bill is deceptive, is based on a number of flawed
assumptions, and is unnecessary. First, ``partial-birth
abortion'' is not a medical term but a non-scientific and
politically biased rhetorical expression invented by
activists to convey misrepresentations about safe and
medically necessary abortion procedures. The term ``partial-
birth abortion'' is not used by any of the major national
medical organizations, including the American College of
Obstetricians and Gynecologists, the American Medical Women's
Association, the American Public Health Association, and the
Association of Reproductive Health Professionals (ARHP).
Second, the bill is deceptive because it does not specify
any particular stage of pregnancy--contrary to assurances by
its sponsors that the bill's intent is to focus only on third
trimester abortions.
Finally, abortions during the third-term are already
illegal in almost every state except to save the woman's life
or health, and are rarely performed. This legislation is
unnecessary and is an example of political ideology trumping
science and appropriate medical decision-making.
Published literature attests to the fact that placing
restrictions on abortion services is harmful to the health of
women and that medical decisions should be left to health
care providers. ARHP is concerned because S. 3 dictates
health care methodology to the clinicians who must provide
medical care under the most difficult of circumstances.
Restrictions imposed by the government on abortion services
will not reduce the need for abortion or the quantity of
abortions performed, it will only make abortion less safe.
If you or members of your staff have any questions or would
like additional information, please contact Wayne C. Shields
at the ARHP office at (202) 466-3825 or [email protected].
Sincerely,
Felicia H. Stewart, MD,
Chair, ARHP Board of Directors.
Wayne C. Shields,
President and CEO.
____
October 17, 2003.
U.S. Senate,
Washington, DC.
Dear Senator Feinstein: The National Latina Institute for
Reproductive Health (NLIRH) strongly opposes S. 3, the
``Partial-Birth Abortion Ban Act of 2003''. As an
organization that is dedicated to ensuring the
[[Page S12939]]
fundamental human right to reproductive health care for
Latinas, their families, and their communities, we cannot
support the proposed legislation which would drastically
inhibit a woman's right to choose, as well as prohibit
medically safe procedures which are often necessary to
protect and save the life of the woman.
NLIRH supports the right of every Latina to be in charge of
her own life, to determine if and when to have children, and,
to seek the full range of reproductive health options
available. These health options include access to quality
gynecological care, family planning and contraception,
fertility treatment, and all abortion services. Contrary to
popular belief, Latinas do access abortion services, and 51%
of Latinas actively identify as pro-choice. While abortion
may not be an option for every Latina, we support the right
of every Latina to make her own personal and private decision
about abortion and we also support efforts to restore public
funding for abortion. For Latinas, accessing abortion
services is often difficult already, due to cultural,
linguistic, legal, and economic barriers, and banning safe
abortion procedures would only further impede upon our rights
to choose what is medically and personally appropriate for
us.
Restricting and criminalizing any abortion procedure would
undermine the fundamental human right to self-determination,
and would endanger the lives of women for whom abortion may
be medically necessary. Decisions regarding when to have
children are often difficult, personal, and morally
complicated, and should be made only by the woman.
We appreciate your attention to our concerns, and strongly
urge you to vote against the so-called ``Partial-Birth
Abortion Ban of 2003.''
Sincerely,
------.
____
Medical Students for Choice,
Oakland, CA, October 19, 2003.
Hon. Dianne Feinstein,
U.S. Senate,
Washington, DC.
Dear Senator Feinstein: On behalf of Medical Students for
Choice, a national organization representing more than 7,000
medical students and residents, I write to urge your
opposition to H.R. 760/S. 3, the (so-called) Partial-Birth
Abortion Ban Act of 2003.
Medical Students for Choice is dedicated to ensuring that
woman's right to choose from a full range of reproductive
health options is preserved. We believe that a physician, in
consultation with the patient, should make the decision
regarding what method should be used to terminate a
pregnancy. Physicians need to have all medical options
available in order to provide women with the best medical
care possible.
We are opposed to H.R. 760/S. 3 because we believe this and
other legislative and judicial restrictions to safe,
medically accepted abortion procedures severely jeopardize
women's health and well-being. We also oppose 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. This bill ties the hands
of physicians and endangers the health of women. Further, we
believe that this bill is deceptive and represents a thinly
veiled attempt to restrict women's access to all abortion
procedures. ``Partial birth'' is a political term, not a
medical term. Despite the anti-choice political rhetoric,
this bill is neither designed nor written to ban only one
procedure. The bill's prohibitions would apply well before
viability and could ban more than one procedure. These so-
called ``partial birth'' abortion bans are deliberately
designed to erode the protections of Roe v. Wade.
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,
Angel M. Foster, D.Phil.,
President.
____
Mexican American Legal
Defense and Educational Fund,
Washington, DC, October 14, 2003.
Re Conference Report H. Rept. 108-288--The Partial Birth
Abortion Act of 2003.
Dear Senator: I am writing on behalf of the Mexican
American Legal Defense and Educational Fund (MALDEF) to urge
you to oppose Conference Report H. Rept. 108-228, the so-
called Partial Birth Abortion Act of 2003 (the Act). MALDEF,
a national non-profit organization whose mission is to
protect and promote the civil rights of the over 35 million
Latinos living in the United States, believes this
legislation is unconstitutional and harmful to women's
health.
The Act is unconstitutional for at least three reasons.
First, the legislation does not include a health exception.
The Supreme Court has held that laws regulating abortion must
adequately safeguard a woman's health. This legislation does
not include such an exception. Contrary to the legislative
findings indicating that a health exception to the ban is
never necessary, many physicians have stated that this
legislation would prevent them from performing procedures
that are necessary to protect a woman's health. Second, the
legislation is unconstitutional because the language of the
ban is overly broad. The ban is not limited to specific
medical procedures and actually could prohibit the safest
abortion techniques in certain cases, thereby unduly
burdening a woman's right to choose. Finally, determining
which procedure is medically necessary is a medical decision
that should be made by a physician and his or her patient,
not by the federal government. The Supreme Court has
emphasized the need for physicians to have adequate
discretion to make these types of medical decisions.
The Supreme Court directly addressed this type of ban in
Stenberg v. Carhart, 530 U.S. 914 (2000). In Stenberg, the
Court found Nebraska's ban on so-called partial birth
abortion unconstitutional because the legislation's language
was overly broad and it lacked a health exception. The
federal version of the ban now pending before you contains
the same flaws and is similarly unconstitutional.
This legislation is an unprecedented attempt by the federal
government to restrict women's access to abortion that
ultimately jeopardizes the health of women. MALDEF strongly
opposes this legislation and urges you to do so as well. If
you have any questions please contact Angela Hooton at (202)
293-2828.
Sincerely,
Antonia Hernandez,
President and General Counsel.
____
National Latina Institute
for Reproductive Health,
Brooklyn, NY, October 17, 2003.
U.S. Senate,
Washington, DC.
Dear Senator Feinstein: The National Latina Institute for
Reproductive Health (NLIRH) strongly opposes S. 3, the
``Partial-Birth Abortion Ban Act of 2003''. As an
organization that is dedicated to ensuring the fundamental
human right to reproductive health care for Latinas, their
families, and their communities, we cannot support the
proposed legislation which would drastically inhibit a
woman's right to choose, as well as prohibit medically safe
procedures which are often necessary to protect and save the
life of the woman.
NLIRH supports the right of every Latina to be in charge of
her own life, to determine if and when to have children, and
to seek the full range of reproductive health options
available. These health options include access to quality
gynecological care, family planning and contraception,
fertility treatment, and all abortion services. Contrary to
popular belief, Latinas do access abortion services, and 51%
of Latinas actively identify as pro-choice. While abortion
may not be an option for every Latina, we support the right
of every Latina to make her own personal and private decision
about abortion and we also support efforts to restore public
funding for abortion. For Latinas, accessing abortion
services is often difficult already, due to cultural,
linguistic, legal, and economic barriers, and banning safe
abortion procedures would only further impede upon our rights
to choose what is medically and personally appropriate for
us.
Restricting and criminalizing any abortion procedure would
undermine the fundamental human right to self-determination,
and would endanger the lives of women for whom abortion may
be medically necessary. Decisions regarding when to have
children are often difficult, personal, and morally
complicated, and should be made only by the woman.
We appreciate your attention to our concerns, and strongly
urge you to vote against the so-called ``Partial-Birth
Abortion Ban of 2003.''
Sincerely,
Silvia Henriquez,
Executive Director.
____
National Black Women's
Health Project, Inc.,
October 20, 2003.
Hon. Dianne Feinstein,
U.S. Senate, Hart Senate Office Building,
Washington, DC.
Dear Senator Feinstein: On behalf of the Black Women's
Health Imperative (formerly National Black Women's health
Project), I am writing to convey our opposition to H.R. 760,
the Partial-Birth Abortion Ban Act of 2003.
As the only national organization that is solely dedicated
to the health of the nation's 19 million Black women and
girls, the Black Women's Health Imperative (the Imperative),
has focused on issues that disproportionately affect Black
women from access to healthcare, inclusive of reproductive
health care. The Imperative has been in the forefront
advocating for a comprehensive agenda that includes the full
range of medical and socially available technologies and
services for fertility management.
We believe that H.R. 760 would restrict safe, medically
acceptable abortion procedures that would severely endanger
women's health and well-being, disproportionately affecting
low-income African American women. Moreover, we feel that
this legislation fails to include adequate health exception
language in instances where certain procedures may be
determined by a physician to be the most appropriate to
preserve the health of the woman.
For the past 20 years, the Black Women's Health Imperative
has been instrumental in highlighting disparities in health
and will continue to play an essential role in helping to
shape policies that seek to improve African American women's
overall health. On behalf of our constituency, we urge the
United
[[Page S12940]]
States Senate to oppose H.R. 760, the Partial-Birth Abortion
Ban Act of 2003.
Sincerely,
Lorraine Cole, PhD.
____
[From Medscape General Medicine, June 25, 2003]
The Federal Ban on So-called ``Partial-Birth Abortion'' Is a Dangerous
Intrusion Into Medical Practice
(By Paul D. Blumenthal, MD, MPH)
Congress has passed the ``Partial-Birth Abortion Ban Act of
2003,'' the first federal legislation ever enacted that bans
abortion procedures. This unprecedented intrusion by Congress
into medical practice will reduce access to second-trimester
abortions and defines the doctors who perform them as
criminals. Moreover, by undermining a woman's right to select
the reproductive healthcare most appropriate for her and
interfering with a physician's ability to make medical
decisions, Congress derogates the physician-patient
relationship.
Proponents of this law claim that it bans only a particular
procedure. However, the legislation does not define what is
being banned in such a way that a physician can know exactly
what is prohibited. There is no formally recognized medical
procedure to which the term ``partial-birth abortion'' used
in this legislation applies; it is therefore vague and
medically incorrect. None of my colleagues know or could
state whether the abortion procedures they now perform are
covered under this law. Indeed, as I read the definition of
the banned procedures, any of the safest, most common
abortion methods used throughout the second trimester of
pregnancy could proceed in such a manner as to be outlawed.
One can only assume that by intimidating medical providers
with the constant threat of criminal accusations, the intent
of this law is to frighten the medical community--the same
community that swears an ancient oath to use its knowledge
and skills to serve and protect the lives of its patients--
from performing pregnancy terminations at all.
The practice of high-quality medicine requires that
physicians be knowledgeable about and able to perform variety
of procedures to accomplish a given treatment or therapy.
Planning any procedure is done in consultation with the
patient, and it is based on the medical judgment, experience,
and training of the provider, and the individual
circumstances of the patient's condition. Sometimes, as a
result of developments during a surgery or in a patient's
condition, it becomes necessary to adapt and choose a
different course or modify the procedure as it progresses.
These decisions are often quite complex and mandate that
physicians use their best professional and clinical judgment,
most often right on the spot. These are decisions that should
be made by physicians and their patients stone. Indeed, when
performing surgery, there is not time for a call to Congress,
the Supreme Court, or anyone else in order to obtain
clarification of the statutory intent or to request a waiver.
This law evokes a preposterous image of physicians with their
attorneys present in the operating room advising and
counseling them at each step, and perhaps even in the middle
of surgery suggesting a physician alter a technique deemed
best for the patient to avoid committing a federal crime.
Physicians and surgeons should be allowed to practice their
art in accordance with time-honored peer-reviewed standards
and with only the interests of the patient at . . . .
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SANTORUM. I yield myself such time as I may consume.
Mr. President, I have listened to this debate on both sides, and I
continue to hear a lot of the same things. I just think it is important
to set the record straight with respect to what many have heard today.
First, the Senator from California, Mrs. Boxer, has objected to my
using the term ``killing'' the child when describing the diagrams of
the partial-birth abortion. So I wanted to make sure I was not using
terms that were inflammatory or inaccurate. She said I was referring to
the fetus as a child instead of the fetus. I looked up the definition
of fetus: ``An unborn child.'' So I don't think referring to a fetus as
a child is incorrect when the definition of a fetus is ``an unborn
child, from the third month until birth.'' This child is obviously in
excess of 3 months into gestation, so it is obvious I am using a
correct term.
She objected to me using the term ``killing.'' I will quote some
people in the abortion movement to justify my using of this term. This
is from Faye Wattleton, former president of Planned Parenthood:
I think we have deluded ourselves into believing that
people don't know that abortion is killing. So any pretense
that abortion is not killing is a signal of our ambivalence,
a signal that we cannot say, yes, it kills a fetus, but it is
a woman's body and ultimately her choice.
So say even those in the abortion movement.
Judy Arcana, a pro-choice author and educator, said:
Sometimes a woman has to decide to kill her baby. That is
what abortion is.
I understand how people want to avoid talking about the baby, the
child, the fetus, or whatever term you feel most comfortable using. It
is what it is. It is a human being. I understand we like to use terms
that don't refer to the human being. In fact, in all the debate we have
heard today on the other side, we hear this concentration and talk
about the woman and the right to choose. We hear very little discussion
about what the choice is all about. I know most Americans like choices
and they like the right to choose. But I think it is important that
people know what the choice is all about, what we are choosing.
What we are choosing here is to kill a human being. Yet many on the
other side just don't want to consider what is being chosen here. What
many on that side like to think is that we are choosing a medical
procedure. The Senator from New Jersey earlier referred to it being
similar to the removal of a cancerous intestine. Maybe some people look
at babies as this sort of cancer or this thing that they don't want
anymore, that somehow affects them in some way. But I think it is
important for us, if we are going to make decisions that impact
millions of lives, to face up to what we are doing and we don't try to
couch it in terms that sound nice, that sound American--words such as
``freedom'' and ``choice'' and words such as that.
What we are choosing is to take away a fundamental right of every
person in America, and that is the right to life. So, yes, I will use
the term ``killing'' because that is exactly what it is, the
extinguishing of a life. It is a child, it is a baby, an infant, a
fetus, a living human being.
Second, the Senator from California has suggested that this is not a
medical term. Well, I had my staff run and look it up in Webster's
Medical Dictionary. In Webster's, the term ``partial-birth abortion''
is in fact defined:
Abortion in the second or third trimester in which the
death of the fetus is induced after it is passed part way
through the birth canal.
As to this idea that it is not a term used, it is in the dictionary.
It is interesting that the Senator from California would say that this
is not a medical term, that this doesn't exist. Yet she has repeated
many times that this thing that doesn't exist is a great threat to
women. If we abolish something that doesn't exist, somehow or another
this is a horrible thing we are doing to women. That doesn't
necessarily make sense to me. Then she goes on and says this thing that
doesn't exist--she claims it doesn't exist--is medically necessary at
times. I have a hard time grappling with this argument in the
alternative. First you argue it doesn't exist, and then it does exist
and it is medically necessary.
The Senator from California, last month, put in the Record statements
from Physicians for Reproductive Choice and Health, and in this letter
in the Congressional Record, they say:
So-called partial-birth abortion does not exist. There is
no mention of the term partial-birth abortion in any medical
literature.
That is not true.
Physicians are never taught a technique called partial-
birth abortion; therefore, they are medically unable to
define the procedure. We know that there is no such technique
as partial-birth abortion.
She makes the argument that it doesn't exist, and then she argues
that it is necessary. I don't know how you can have it both ways. It
either does exist and it is necessary or it doesn't exist and it is not
necessary. We find interesting arguments that don't seem to hold up
upon closer examination.
Another thing that doesn't hold up under examination is the repeated
attempts by those who oppose this legislation to misinform the public
as to what it does. I am not only going to go through the most recent
example of this, but the chronology of events around this legislation,
which started with Charles Canady in the House of Representatives and
Bob Smith in the Senate, who did an outstanding job.
I remember when Bob first came to the Senate floor. He was ridiculed
as being this extreme person who would bring this medical procedure to
the floor and it was an outrageous thing for a Senator to do. He had
the courage to stand up for his convictions and follow through. But I
remember at hearings, they were saying this procedure
[[Page S12941]]
didn't exist, first, and, second, the anesthesia given to the mother
would kill the baby, and that this was only done on mothers who were in
a position where the baby was badly deformed or the mother's health was
in danger, and it was only done a few dozen times a year.
Every one of those things I have mentioned has been debunked. They
are simply not true. Yet here we are just days away from passing this
bill again in the Senate for the third time, but the fourth time we
have debated, and we see a statement by Planned Parenthood last month
that says:
S. 3 is a bill to outlaw the medical procedure used
primarily in emergency abortions.
``Primarily in emergency abortions.'' Let me, again, without reading
the comment below, state this is a 3-day procedure. This is a procedure
where the woman presents herself to the abortionist, and I say
abortionist because this procedure is only done in abortion clinics. It
is not done in hospitals, as this organization that Senator Boxer
submitted for the Record said. They don't teach this procedure in
medical school. It was designed by an abortionist for the convenience
of the abortionist.
She presents herself to an abortionist who gives her something to
help dilate her cervix and tells her to return 2 days later.
Can you possibly imagine someone in an emergency situation presenting
themselves to a health care professional who is in an emergency
situation because of her pregnancy, who is given something to dilate
her cervix and sent home for 2 days?
On the face of it, it makes no sense. But yet they persist in spite
of the fact that Ron Fitzsimmons, the executive director of the
National Coalition of Abortion Providers, is quoted in the New York
Times on February 26, 1997--1997, not February 26, 2003, 2002--6\1/2\
years ago:
Mr. Fitzsimmons recalled the night in November 1995, when
he appeared on ``Nightline'' on ABC and ``lied through my
teeth'' when he said the procedure was used rarely and only
on women whose lives were in danger or whose fetuses were
damaged.
``Lied through my teeth'' in 1995, he said, on ``Nightline.'' But in
1997, he came clean. He said:
In the vast majority of cases, the procedure is performed
on a healthy mother with a healthy fetus that is 20 weeks or
more along, Mr. Fitzsimmons said. The abortion rights folks
know it, the antiabortion folks know it, and so probably does
everyone else, he said in the article in the Medical News, an
American Medical Association publication.
They knew it. In 1997, they knew this. A month ago they were still
saying it.
I don't mind having a good honest debate, and the Senator from
California, Mrs. Feinstein, brought up legitimate legal issues, a
proper, good debate, but when the organization that is principally
behind the stopping of this bill a month before this bill gets
presented continues to try to misinform the American public, I think
you have to ask yourself a question as to the credibility of that
organization and the credibility of their case.
There are a couple other comments that were made on which I have to
set the record straight. The Senator from California, Mrs. Boxer, said
this abortion procedure needs to remain legal out of respect for women
and ``because it gives the fetus dignity.''
Anyone who looks at this abortion procedure and suggests that pulling
a child feet first through the birth canal at 20 weeks of gestation,
who otherwise would have been born alive, and have a pair of scissors
thrust in the base of their skull and have their brains suctioned out
is an act of dignity I think has to rethink what the word ``dignity''
means. To treat any human being, to treat any living thing in that
fashion is insulting to that life. It certainly is not an act that I
would call a dignified act or an act that shows respect for that child.
A lot has been made by both Senators from California and others about
the need for a health exception. This gets in to the meat of this
debate with respect to its constitutionality. The Court did state that
there were two reasons for the Nebraska law on partial-birth abortion
to be overturned. One was that it did not have a health exception that
was required by Roe v. Wade.
Step back and think about this debate in a larger context. I don't
think most Americans, if I can put up the last chart of the diagram of
the procedure--I don't think most Americans contemplate that Roe v.
Wade covers abortions done late in pregnancy by healthy mothers with
healthy babies who would otherwise be born alive being treated in such
a brutal and barbaric fashion. I don't think most Americans see the
scope of Roe v. Wade as including that type of abortion but it does.
That is really the wake-up call for America here: That Roe v. Wade is
not what they claim it to be. If it is later in pregnancy, it is
mothers who have health issues or the child has health issues. No, that
is not what we are talking about here. We are talking about there needs
to be a health exception, according to this court, for a procedure done
late in pregnancy on healthy mothers with healthy babies treated in a
brutal fashion such as this. I don't think most Americans would have
said: Gee, we need a health exception here or Roe v. Wade covers this
issue, but that is what they say; that based on the evidence they
compiled in the Federal district court in Nebraska, the court examined
the evidence and determined that a health exception was necessary,
based on the evidence that was submitted at trial.
We believe strongly the evidence submitted at trial was incomplete;
that there has been a lot of evidence submitted to the Congress and in
publications that is counter to what the Nebraska district court found,
and that the overwhelming weight, and I would argue the dispositive
weight, of evidence presented to this Congress, which is a finder of
fact just as the district court is, is that it is never medically
necessary.
The Senator from California has said the American College of
Obstetrics and Gynecology has written a letter saying that it may be
medically--that is the term, ``may be medically necessary.'' Yet in the
letter she has entered into the Record, which she has entered many
times before, they do not present one example of a case in which it
would be medically necessary.
For 8 years I have stood on the floor of the Senate and have asked
for such a case from the American College. To date, the American
College has never replied to my request. They have not sent one case to
be submitted into this Record as to where this may be medically
necessary actually is medically necessary.
One has to wonder the validity of the statement that it may be
medically necessary if they can't find a case in fact where it is.
Cases have been submitted by both Senators from California where some
obstetricians have said this was medically indicated in this case. For
every 1 letter that has been submitted, we have had 6, 7, 8, 9, 10
letters from maternal fetal medicine specialists--they are specialists
in high-risk pregnancies--perinatologists who say not only aren't those
cases good cases but they are contraindicated.
It is bad medicine. So we do not really have any uncontrovertible
case where it is medically necessary. I think that is important for the
Court to consider. I think it is also important for the Court to
consider that the Congress, which has had multiple hearings of fact,
unlike the Court, was able to make a determination and have a vote
overwhelmingly in both the House and Senate that these facts are as we
say they are. I believe we have a right as a body to make that
determination.
We hope, just as we listen to the Court in matters of law because
that is their responsibility, that as finders of fact they would listen
to what we come up with. I know many on the Court think it is a one-way
street. They just tell us what they think and we have to do whatever
they tell us and we have no input into what the Court decision is.
That is not the way our Framers envisioned it. I found it sort of
humorous that the Senator from California said the Framers did not
envision the Congress amending the Constitution by legislative
findings. I will assure the Senator from California that our Framers
did not envision the Supreme Court amending the Constitution by
judicial fiat but they do. Roe v. Wade is a case in point.
So there are lots of things our Framers did not envision, I say the
most
[[Page S12942]]
grotesque of which is the Court activism that we have seen across the
street.
With respect to this health exception, it is overwhelmingly clear
that it is never medically necessary.
Why do we go to such length in saying that a health exception is not
medically necessary? Well, because if we had a health exception to this
bill--and many have suggested, just put in a health exception. I mean,
are you not concerned about women's health?
Well, I do not think anyone is not concerned about women's health. In
fact, the evidence presented is overwhelming that this procedure is a
riskier procedure than other abortion procedures and is never medically
indicated. So if one looks at the overwhelming body of evidence and
they are concerned about women's health, they would be for banning this
procedure because it is never medically indicated. It is done only for
the convenience of abortionists and is, in fact, unhealthy. So if one's
concern is women's health, then they would be for banning this
procedure.
The interesting point is, why are they pushing so hard for this
health exception and why are we resisting it so much? Well, what does
the health exception mean? This is the little secret that to those who
have not followed the abortion debate may say, what is the big deal?
Why do you not put in a health exception? That sounds reasonable.
The problem with the health exception is that it is so broad an
exception it swallows up the bill because a health exception--when Roe
v. Wade was decided, there was a companion case decided called Doe v.
Bolton, and in that case health was defined as: Medical judgment may be
exercised in the light of all factors: physical, emotional,
psychological, familial, and the woman's age relevant to the well-being
of the patient. All of these factors may relate to health. This allows
the attending physician the room he needs to make the best medical
judgment.
So over time what this has been interpreted to mean is health means
anything: emotional, physical, spiritual, psychological, whatever it
is, stress, anxiety. Some have even brought it to economic concerns.
Health is an exception that swallows the rule. So as long as the
doctor says the woman obviously exhibited anxiety, stress, discomfort,
she had a headache or whatever, it does not matter. It does not say
severe. It just says anything. So what this provision did, and that is
what the Court wanted to do, was to give absolute latitude to the
doctor to do whatever the doctor wanted to do in consultation with the
patient. So the health exception is no exception at all. It is a barred
antiprohibition. So understand that the health exception bars the bill,
stops the bill from having any effect. So that is why we resist.
In our case, we think we are outside this health exception because it
is actually unhealthy for the woman and it is never medically
necessary.
Before I move on to the next topic, I want to go through some of the
health risks as outlined--we have a series of letters which I will
submit for the Record--that partial-birth abortion poses serious health
risks for women.
First, as I mentioned before, the physician has to dilate the cervix
a couple of days before the abortion is performed, creating a risk,
according to several physicians, to an incompetent cervix, a leading
cause of future premature deliveries or infection, and is the main
cause of subsequent infertility.
As we can see, the baby is brought in feet first through the birth
canal. When they reach in to pull the baby out of the uterus--reaching
into the uterus to pull the baby's feet through the cervix is a
dangerous procedure, risking the tearing of the uterus. It poses an
increased risk of uterine rupture, abruption, amniotic fluid embolus
and trauma to the uterus as a result of converting the child into a
footling breech position. Grabbing the baby's legs could perforate the
uterus, which could result in severe hemorrhage and possibly a
hysterectomy. Then the procedure that follows where the Metzenbaum
scissors are placed in the base of the baby's skull to kill the baby
and puncture the baby's skull, putting the scissors into the baby's
brain is a partially blind procedure. As we can see, the physician has
no way of seeing where those scissors are entering the baby or if they
are even entering the baby.
This blind procedure with a sharp instrument may expose the uterus to
sharp bone shards, bone shards from the baby's skull upon the puncture.
They may lacerate different parts of the woman's body and cause
hemorrhaging and could necessitate a hysterectomy to save the mother's
life. This is not a riskless procedure. This is a risky procedure.
I reiterate, this is not taught in medical schools. There are no peer
review journals published that suggest this is a superior way, much
less an appropriate way, to deal with an abortion. There are no studies
that have been done, that are controlled in nature, to show that this
is a proper procedure. This is a rogue procedure. It is medically
unhealthy and it is medically unnecessary.
Both Senators from California talked about their recollection of the
pre-Roe v. Wade days. The Senator from California, Mrs. Boxer,
suggested the debate we had a month ago with respect to the number of
maternal deaths as a result of abortion prior to Roe v. Wade were women
in all States--in some States, abortion was legal, not in all States--
that women as a result of that had higher incidents of maternal death.
The Senator from California continued to indicate that there were some
5,000 deaths per year as a result of abortion not being legal
everywhere in the United States.
I entered information in the Record from the Bureau of Vital
Statistics, including more recently the Centers for Disease Control,
suggesting at the time of 1972, prior to the decision being made, there
were 83 maternal deaths. The Senator from California suggested that is
only because the only reported deaths were States in which abortion was
legal.
That is not the case from the statistics. Had that been the case--it
is not, according to the information we have gathered, but had it been
the case, then why were there 1,231 reported deaths from abortion in
1942, where abortion was not legal in any State in the country?
So if her information was correct, if they were only reporting cases
in States in which abortion was legal in 1942, there would have been no
deaths because there were no States in which abortion was legal. But in
fact they were reporting from States where abortion was legal and
illegal.
What you saw from 1942 down to 1972 was a decrease, from 1,231,
almost straight line down to 83 deaths in 1972. Why? Because medicine
improved. Antibiotics, first and foremost, is probably the principal
reason, because of infection, but there were a whole variety of
reasons. The improvement of medical science is why those numbers
continued to decrease. So the idea that somehow or another there were
thousands of women dying prior to Roe v. Wade is just not backed up by
the facts.
We have an obligation; as much as we would like to paint a picture
for the eyes particularly of young people who didn't live then, as much
as we would like to paint this picture to young people to convince them
of the justice or righteousness of the right to abortion, that things
were really bad, that women were dying in droves, there was a horrible
situation prior to Roe v. Wade, we cannot. You have to deal with the
fact that was not the case with respect to the amount of maternal
deaths.
There may be other factors that you consider and you are welcome to
make the arguments about how people felt at the time. That is fine. But
you cannot play with the facts to present a case that is not true.
I want to quote Bernard Nathanson who was, at the time of 1972, an
abortionist. He says:
How many deaths were we talking about when abortion was
illegal? In N.A.R.A.L.--
A group he helped found, the National Abortion Rights Action League--
we generally emphasized the drama of the individual case, not
the mass statistics, but when we spoke of the latter it was
always ``5,000 to 10,000 deaths a year.'' I confess that I
knew the 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?
This is a very serious issue. I would argue it is the greatest moral
issue of
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our time. I think we have an obligation to use honest statistics, at
least honest statistics--honest statistics, honest cases. The Senator
from California brought up the case of Vicki Wilson, as she has
repeatedly throughout this debate over the past several years. She said
Vicki Wilson needed a partial-birth abortion because of a medical
condition she and the baby had. Let me quote from Vicki Wilson's own
testimony to Congress.
My daughter died with dignity inside my womb, after which
the baby's body was delivered head first.
Not feet first. Vicky Wilson did not have a partial-birth abortion.
Yet it is a case that is continually used here to justify a partial-
birth abortion being kept legal.
The case was also made she needed to have one done. Quoting Vicki
Wilson:
I knew I could go ahead and carry the baby until full term
but knowing, you know, that this was futile, you know, that
she was going to die, I felt like I needed to be a little bit
more in control in terms of her life and my life.
Vicki Wilson did not have a medical emergency or a health need, from
the standpoint of what most people would consider to be a health need,
which is physical health.
I caution, when people listen to this debate, that they listen to the
debate of what is real, what the facts are, and what the consequences
are. There is no question in my mind that the consequences of this
debate are the most profound consequences we face as a country and more
specifically as a culture as to who we are. Because ultimately what
this is about, banning this procedure, is about who we are going to
accept in our human family. Do we accept this little baby? You can pull
out the photo Senator Brownback showed earlier. If we can accept this
little baby at 20 weeks or 21 weeks into our human family, or do we say
no, no, you may look like us, you may have hands and feet and you may
have a heartbeat, you may be perfectly normal, you may have looked like
us when we were that age, but we are not going to include you in the
human family. We are not going to call you an American. We are not
going to give you the rights provided to you under the Constitution.
It really is about who we accept. I would argue it is about who we
are going to love, who we are going to nurture, who we are going to
support.
Today in the Senate we have a chance to say in some very small way--
and I admit, I will agree with the Senators from California and others
that this will do very little to limit the number of abortions. I agree
with that. But in some small way we are acknowledging this little
child, this little child is a member of our family.
The Senator from Iowa, Senator Harkin, as well as the Senator from
California, Senator Feinstein, talked at length about the striking of
the Roe v. Wade language from this bill that passed the Senate. The
language stated Roe v. Wade was the law of the land and should continue
to be the law of the land. It passed by a couple of votes here in the
Senate.
I think many of us found that to be somewhat in contrast with the
underlying purpose of this bill, in the sense that this was a very
small tip of the hat, recognition of the humanity of this child, we
were not going to treat this child in this grotesque fashion. That is
all.
It doesn't say that child couldn't be killed in some other fashion
that was medically safer for the woman. But it says when it comes to
delivering a child and having that child just inches away from being
born, we were not going to go that far. This, really, was too close. So
we gave a small nod, a small nod to the humanity of that child in the
process of being born.
So many of us thought, sort of restating this sense of the Senate
about the primacy of Roe v. Wade was an insult to even this little nod
that I would argue is outside of Roe v. Wade. Unnecessary, is what it
is. Roe v. Wade is, according to the Court, how they will decide
abortion cases.
I vehemently disagree with them and I will continue to fight on this
floor and anywhere else I can to make sure that law, that Court
decision taking the decision away from the American public--which is
where it was prior to Roe v. Wade--taking the decision of great moral
import away from the American public, is returned to the people.
We just saw an election in California where the people rose up and
said they wanted to take back control of their State. We don't have
such a process here. The Court is insulated from the public rising up
and saying no, we don't like your decision--or even from the Congress.
It takes a huge amount of effort. It is a very difficult process to
amend the Constitution, pass both Houses of Congress by a
constitutional majority, 67 percent; plus get three-quarters of the
States to ratify a constitutional amendment. Yet this Court by a whim
can amend the Constitution with five votes, and did so. They amended
the Constitution like that.
I don't think that is the way the Framers wanted it. I think they set
forth a constitutional amendment process because that is the way they
wanted to create new rights or change the Constitution, not to allow
the Court to do it.
I have likened the Roe v. Wade decision--I was fortunate enough
Sunday to be in St. Louis, MO and had the opportunity to walk by the
courthouse, which is right in downtown St. Louis, where the Dred Scott
case was initially decided. That is where the district court was.
You look back, and people in St. Louis have great pride in the fact
that case was there, and many Missourians stood up and fought against
what that case was all about. I would argue that Roe v. Wade is exact
in kind as the Dred Scott decision. Like the Dred Scott decision, Roe
v. Wade--unlike, if you think back, and think of any other major
Supreme Court decision, where rights, individual rights were dealt
with--almost every other Supreme Court decision in which individual
constitutional rights were dealt with, over time the public grew to
accept. That is because over time, the public grew to understand the
justice of that decision.
The most recent one is civil rights decisions. But in Dred Scott the
abolitionist and so many others knew of the injustice--yes, it was the
law; that is what the court said. They decided the case. There were too
many in this country who said, no, I don't believe that is right.
It is amazing if you see the polling of young people in America,
there is actually a higher pro-life sentiment among young people than
older people, but you would think people who grew up, knowing this was
the law--because when people hear the law they think, if it is the law,
it must be right; it must be just; it must be ethical; it must be
moral; otherwise, it would not be the law. The law is a great teacher.
It is the greatest teacher to young people as to what is right and what
is wrong. Young people, knowing the law, still say there is something
inside me that says this is not right. Just like young people in the
1850s and 1860s, who said there is something inside me that tells me
this is not right.
Abraham Lincoln said a house divided against itself cannot stand. So
here we are today, with the American public deeply divided on this
issue, deeply divided because so many people for 30 years have only
known the law and the popular culture. Does the popular culture depart
at all from what the law is? Is there anything you see coming out of
Hollywood or New York that at all disagrees with this, the Supreme
Court notion of what the law should be? Of course not. Yet this feeling
is out there, this sentiment, like the abolitionists of the 1860s who
said it may be the law, but in this case that does not make it right.
That does not make it just. So while we had a great debate on Roe v.
Wade, this will have no impact. It is just a debate that will continue
to go on.
The final point I make about this is one I have made before. Why are
Dred Scott and Roe v. Wade alike? Because the Dred Scott decision put
the rights, the property rights, the liberty rights of the slaveholder
above the life rights of the slave. In our founding document, the
Declaration of Independence, Thomas Jefferson wrote: We are endowed by
our creator with certain inalienable rights. Then he listed them: The
right to life, liberty, the pursuit of happiness. In that order--life,
liberty, pursuit of happiness.
In Dred Scott, we took the fundamental right, life--for without life
you cannot have liberty; without liberty you cannot pursue happiness.
So they are put in order for a reason. What
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Dred Scott did was take the life rights of a slave and put them under
the liberty rights of someone else.
And Roe v. Wade, the reason I compare it to Dred Scott, does the same
thing. It puts the life right of this little human being that we have
decided not to accept in our society as a person and subjugates them to
the liberty rights, the choice of someone else, in this case the baby's
mother.
The Senator from California says why don't we trust women more? I do.
But you cannot ignore the fact that one-third of all pregnancies in
America end in abortion. This is a very small piece of legislation, I
will admit that. But it is important just for a brief moment, just for
some rather small piece of legislation that affects, if you consider
1.3 million abortions, less than 1 percent of all abortions, far less,
.1 of all abortions, but in some small way it begins to recognize the
humanity that we have to display toward this child and not treat this
child in such a brutal fashion.
I conclude by thanking my colleague from California and all those who
have been involved in this debate over the years. We have had a
vigorous debate. That is important in the Senate that we debate these
very important issues. I thank all those on both sides of the aisle who
have engaged in that. I thank Senator Smith for his courage in bringing
this bill up; Senator DeWine, in particular, who has been a tremendous
champion on this issue; along with Senator Brownback, Senator Ensign,
Senator Voinovich, and so many others who have come to the Senate and
taken on this issue.
I thank my staff: Heather MacLean, for the tremendous work she has
done in supporting me in every way possible in getting the information
I need when I need it, to carry this debate forward; and Michelle
Kitchen; prior to her, Wayne Palmer, my legislative director; and all
the members of my staff.
Finally, I thank all who have been sending your prayers to
Washington, DC, through this debate. They have made a difference.
Mr. DOMENICI. Madam President, I rise today to support adoption of
the conference report to accompany the ``Partial-Birth Abortion Ban Act
of 2003.'' I compliment the distinguished Senator from Pennsylvania,
Mr. Santorum. He has carried this bill and I offer him my
congratulations for his efforts in this regard.
I have always been a supporter of the rights of the unborn. And,
after many years of debate on this issue, I am very pleased that this
body is going to pass this measure, and that the President has said he
will sign it.
In March, I came to the floor and I discussed this very issue. At
that time, I quoted one of our very distinguished former colleagues,
Mr. Daniel Patrick Moynihan. Senator Moynihan described the Partial
Birth Abortion procedure as follows:
I think this is just too close to infanticide. A child has
been born and it has exited the uterus. What on Earth is this
procedure?
That is what the distinguished Senator from New York said.
And, the Senator was right. This debate is not about Roe v. Wade;
this is not a pro-life or pro-choice vote. This debate is about
humanity and necessity. The procedure of partial- birth abortion, to
put it candidly, is cruel and inhumane. The issue here today is whether
we should prohibit a form of abortion that borders on infanticide. As
Senator Moynihan said, ``what on Earth is this procedure?''
By now, many Americans are uncomfortably aware of the details of a
partial-birth abortion. They have heard the testimony of doctors who
perform this procedure and nurses who witness it. They have also most
likely seen information ads or read descriptions of the procedure.
Maybe they have even watched us debate the issue on prior occasions. I
will not go through the details of the procedure. I will only say that
at a minimum it is cruel and inhumane, and when this debate is
completed, I hope that the Senate will take a stand and ban a procedure
that diminishes the life of a child that has been born and has exited
the uterus.
This debate today is about protecting a fetus, a baby, a life that is
now destroyed in a cruel and inhumane way. It is about a life that is
unnecessarily destroyed and it need not happen. We are not really
talking about banning abortion here, we are talking about banning a
form of infanticide and it is for this reason that I will gladly vote
in favor of the ``Partial Birth Abortion Act of 2003.''
Mr. VOINOVICH. Madam President, today is a glorious day. Today is the
day that we finally send the Partial-Birth Abortion Ban Act to the
President for his signature, and we can now begin to save human lives.
Today's vote is only marred by the fact that it took us so long to get
here. Just imagine the number of lives we could have saved if we had
sent this bill to the President 8 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. I am
overjoyed that we finally got this done in the 108th Congress!
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. Well, 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.
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.
I would like to thank all of my colleagues who voted for this very
important legislation. We can certainly be proud of what we have
accomplished today!
Mr. BUNNING. Madam President, today I come to the floor with joy in
my heart knowing we will finally put an end to the death of unborn
children through partial-birth abortions. I am joyful that our efforts
will not go in vain this year because President Bush is eager to sign
this bill.
But my heart is also heavy knowing that this procedure has gone on
too long. Too many children have died in this horrific way. The vast
majority of Congress has been trying for the better part of a decade to
ban partial-birth abortions but has been stymied by President Clinton
and the current minority party in the Senate. I am glad the days of
obstruction and vetoes have come to an end and this bill will become
law.
I can think of no more clear-cut case between right and wrong. All
one needs to know is a description of the process to understand how
wrong partial-birth abortions are. First, an abortionist induces
dilation of the mother so the baby can be almost fully delivered. Next,
the baby is delivered to the point that only its head remains inside
the mother. Third, the child is stabbed in the back of the skull with
scissors or some other sharp object. Finally, a tube is used to suck
the child's brains out of the hole left by the stabbing.
There is no gray area or middle ground when it comes to this
procedure and there are no justifications for it. The child is
delivered to within inches of breathing its first breath. If the doctor
lets the head of the baby slip just an inch or two, the child would be
born and the doctor would be prosecuted for murder. Nevertheless, some
abortion supporters cannot see through the fog of their fervor to
realize just how wrong that is.
I do not mean to suggest that there is widespread support for
partial-birth abortions. There is not. The vast majority of the
American people want the procedure to end. Congress has voted
overwhelmingly many times in the last few years to enact a ban like the
one before the Senate today. Most doctors oppose the procedure
including quite a few who perform other forms of abortion.
There is no evidence that this procedure is ever necessary to
preserve the health of the mother. In fact, it is quite dangerous.
Babies being killed in this manner can feel the pain of its skull being
pierced and have been seen
[[Page S12945]]
writhing in pain, flailing tiny arms and legs until its skull collapses
after its brains have been vacuumed out. I do not understand how anyone
can believe this should go on.
Doctors and medical researchers have made great progress in fetal
health care. Babies can be operated on while still in the womb.
Premature babies can survive outside their mother at younger and
younger ages. With those and other advancements Americans are
continually placing a greater value of life. By passing this law
Congress will further advance the cause of life and send an
unmistakable message that ours is a just society that values every
human being and believes in the sanctity of life.
I look forward to President Bush signing this bill into law. I am
proud of his support of this bill and for life.
Mr. NICKLES. Madam President, as I am sure all of my colleagues know
by now, the procedure banned by this bill--the partial-birth abortion
procedure--defies description. I am not going to go into the terrible
details of this procedure which is performed on a living child late in
pregnancy.
This is a truly shocking procedure--absolutely indefensible. The term
``partial-birth'' is perfectly accurate. Some prominent defenders of
partial-birth abortions insist that anesthesia kills the babies before
they are removed from the womb. This myth has been refuted by
professional societies of anesthesiologists. In reality, the babies are
alive and experience great pain when subjected to a partial-birth
abortion.
It has been asserted that this procedure is the only way to prevent
serious health damage. However, partial-birth abortions are performed
thousands of times annually on healthy babies of healthy mothers.
Hundreds of ob-gyns and fetal/maternal specialists, along with former
Surgeon General Koop have come forward to unequivocally state that
``partial-birth abortion is never medically necessary to protect
another's health or her future fertility.'' Thus, the first section of
S. 3 contains Congress' factual findings that, based upon extensive
medical evidence compiled during congressional hearings, a partial-
birth abortion is never necessary to preserve the health of a woman.
In January 2003, even the Alan Guttmacher Institute--an affiliate of
Planned Parenthood--published a survey of abortion providers that
estimated that 2,200 abortions were performed by the method in the year
2000. While that figure is surely low, it is more than triple the
number that AGI estimated in its most recent previous survey, for 1996.
The stark fact is that unless this bill becomes law, more innocent
unborn children will have their lives brutally ended by the inhumane
partial-birth procedure.
It is unbelievable to me that this unspeakable abortion procedure
even exists in this country, much less that we are having to take
legislative action to ban such a procedure. It is further unbelievable
to me that anyone in good conscience can even defend the partial-birth
abortion procedure. It is a fiction to believe that it is all right to
end the life of a baby whose body, except the head, is fully delivered.
In order to engage in such a fiction, one has to take the position that
curling fingers and kicking legs have no life in them. Those who
subscribe to such a fiction, are at best, terribly misguided.
As Former Surgeon General C. Everett Koop stated: ``. . . in no way
can I twist my mind to see that the late-term abortion as described--
you know, partial birth and then destruction of the unborn child before
the head is born--is a medical necessity for the mother. It certainly
can't be a necessity for the baby.'' American Medical News, August 19,
1996.
Now it is time for the Senate to approve a ban on partial-birth
abortions. It is time to end this injustice and the practice of this
inhumane procedure. I urge my colleagues to join me in ending this
atrocity.
Mr. BOND. Madam President, I rise today in support of the conference
report to the Partial-Birth Abortion Ban Act. I am pleased to be a
cosponsor of this legislation, and I look forward to the day when
partial-birth abortion is banned once and for all.
Medical experts agree, partial-birth abortion is not good medicine.
The Physicians Ad Hoc Coalition for Truth, PHACT, a group of over 500
doctors, mostly specialists in OB/GYN, maternal and fetal medicine, and
pediatrics, have stated that partial-birth abortion is never medically
necessary to protect a woman's health or her fertility. In fact, the
exact opposite is true; the procedure can pose a significant threat to
both the pregnant woman's health and her fertility.
Today we move one step closer to putting an end to this brutal
procedure. One of life's greatest gifts is our children, and we cannot
allow them to be victims of this heinous and cruel procedure.
I have cosponsored this legislation in the past three Congresses, and
I am a cosponsor of the bill before us today. I am pleased to rise once
again in support of protecting human life. I hope that Congress will
deliver this bill to the President, who is eager to sign this bill into
law.
Ms. MIKULSKI. Madam President, I rise today in support of the Roe v.
Wade decision that was made by the Supreme Court over 30 years ago, and
in opposition to the late term abortion conference report before the
Senate.
The Supreme Court's acknowledgement 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. However, Congress is on the brink of turning back
the clock.
Last month, my colleague from California, Senator Boxer, led a fight
on the Senate floor to keep Senate passed language in support of Roe v.
Wade in the late term abortion bill, S. 3. I was disheartened to hear
that the conference committee stripped the Senate passed Roe v. Wade
language. The Roe v. Wade decision is important to women's rights,
women's health, and public health.
I believe that this bill is the first step in a plan by the
leadership of this Congress to overturn Roe v. Wade. When President
Bush signs this bill, he will become the first President since Roe V.
Wade to recriminalize abortion procedures.
As I have stated previously on the Senate floor, the bill before us
is unconstitutional. Just 3 years ago the Supreme Court ruled in
Stenberg v. Carhart that a Nebraska State law that bans certain
abortion procedures is unconstitutional. The Supreme Court ruled it was
unconstitutional for two reasons. First, it did not include an
exception for a woman's health. Second, it does not clearly define the
procedure it aims to prohibit and would ban other procedures, sometimes
used early in pregnancy.
S. 3 is nearly identical to the Nebraska law the Supreme Court struck
down. The proponents of this legislation say they have made changes to
the bill to address the Supreme Court's ruling. They have not. It still
does not include an exception to protect the health of the woman. It
still does not clearly define the procedure it claims to prohibit. Let
me be clear about this. S. 3 is unconstitutional. That is why I
supported the Durbin substitute when the Senate considered this
legislation.
I supported the Durbin amendment because it was consistent with my
four principles. These are my principles: It respects the
constitutional underpinnings of Roe v. Wade. It prohibits all post-
viability abortions, regardless of the procedure used. It provides an
exception for the life and health of a woman, which is both
intellectually rigorous and compassionate. And it leaves medical
decisions in the hands of physicians--not politicians. The Durbin
alternative addressed this difficult issue with the intellectual rigor
and seriousness of purpose it deserves.
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.
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 vote against the conference report for the late term
abortion bill.
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Mr. NELSON of Florida. Madam President, today the Senate considers
the conference report to accompany S. 3, the Partial-Birth Abortion Ban
Act, and I want to take this opportunity to explain my vote. I am
opposed to the procedure known as partial-birth abortion, except in
cases where the life or physical health of the mother is in jeopardy.
This legislation does not include an exception to provide for the
physical health. That means that a physician could determine that a
woman could be paralyzed for life, and it would not be considered an
adequate exception under this legislation. Therefore, I must
respectfully vote against this bill.
(At the request of Mr. Daschle, the following statement was ordered
to be printed in the Record)
Mr. EDWARDS. Madam President, I rise today to express my
opposition to the conference report to accompany S. 3, the late term
abortion ban bill.
As we know, the Supreme Court has ruled on this issue. The Court said
that a ban on later-term abortion procedures must protect a woman's
health. In Stenberg V. Carhart, the Court ruled that an abortion ban
must include a health exception when ``necessary, in appropriate
medical judgment, for the preservation of the life or health of the
mother.''
The bill before us today does not include an exception for a woman's
health. If this bill becomes law, a woman would be refused this
procedure even if other procedures would cause her grave harm. While
late-term abortions should occur only in rare circumstances, this bill
bans them in all circumstances. That is not constitutional and it is
not fair to the women who are in the rare circumstances where this
procedure is required. For this reason, I cannot support this
bill.
Mr. FEINGOLD. Madam 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 at 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
views. I respect those who oppose abortion on principle. 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.
Unfortunately, the conference report fails to cure the flaws in the
bill that make it unconstitutional on its face. The conference report's
description of the procedure that it would ban is so vague and
overbroad that it could place an undue burden on a women's right to
choose by encompassing safe and common abortion procedures used prior
to viability.
I am also disappointed that the conference report failed to adopt the
Senate's 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 this language, which was offered by my
colleague Senator Harkin. A majority of the Senate agreed to support
the Harkin amendment. The House was wrong to remove this language
during its consideration of the bill, and I am disappointed that the
conference report failed to adopt the Senate's position on this issue.
The Senate should only legislate in this area in a way that is
constitutionally sound. This conference report does not meet that test
and I cannot support it.
Ms. CANTWELL. Madam. President, I rise today to express my opposition
to the conference report to S. 3 the so-called Partial-Birth Abortion
Ban Act of 2003. This is an unconstitutional piece of legislation that
puts women's lives in jeopardy.
Supporters of this bill will argue that this legislation bans only
one procedure but this is not the case. Make no mistake about it. This
bill puts us on a path outlawing abortion. The language in this bill is
vague, and this law could be used to ban other safe and legal
procedures. 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.
In 1973, in Roe v. Wade, the Supreme Court found 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 abortions as long as they allow exceptions when a woman's life
or health is in danger. The bill before us, however, restricts
abortions before viability and it does not include a health exception.
Let me repeat that. This bill is fundamentally flawed because it does
not protect the women when her health is in danger.
In June 2000, the U.S. Supreme Court reinforced the importance of
this health exception in Stenberg v. Carhart, which determined that a
Nebraska law banning the performance of so-called ``partial birth''
abortions was unconstitutional under Roe v. Wade.
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.
I am very disappointed that this conference report does not include
language passed by the Senate that abortion has been a legal and
constitutionally protected medical procedure throughout the United
States since the Supreme Court decision in Roe v. Wade; and that 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.
I fundamentally believe that private medical decisions 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. This bill, however, 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.
During the course of this debate we heard painful stories about women
who were anxiously awaiting the birth of a child when something went
horribly wrong. We heard true stories of women who were devastated when
they discovered that their child had severe health problems and would
not survive. We heard stories about women who wanted to complete their
pregnancy and were told by their physicians that, should they do so,
they would put their health at risk. The truth is that this is a
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heartbreaking, painful, personal decision that should be made by solely
a woman with the advice of her doctor.
I trust the health care providers and organizations like the American
College of Obstetricians and Gynecologists, and the American Medical
Women's Association who oppose this ban. These physicians know their
patients, they know their stories, and the painful choices that many
make, and they know that this ban is wrong. Most importantly, I trust
the women in my State and around this country to make the decision that
is right for them. During such a difficult, private time, women should
be surrounded by those who love and support them. Women should not have
to listen to rhetoric that demonizes their heartbreak, but should be
able to receive medically accurate information from a trusted health
care professional.
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 women of America have the right to privacy and receive the best
medical attention available.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. I understand I have a minute, 51 seconds remaining.
The PRESIDING OFFICER. The Senator is correct.
Mrs. BOXER. I understand Senator Frist will take some leader time and
Senator Daschle has given me 4 minutes of his leadership time, so I
will speak for about 6 minutes if that is all right.
The PRESIDING OFFICER (Mrs. Dole). Without objection, the Senator may
use the leader's time.
Mrs. BOXER. Madam President, I, too, thank everyone involved in this
debate on both sides because I think it has been a very enlightening
debate. I have been on the Senate floor about this bill many times.
This particular debate brought out so many issues.
I also thank the many women who experienced this procedure, who were
able to come to Washington on many occasions to tell us what their
world was like when they found out late in the pregnancy that something
had gone horribly wrong and the doctor told them that their baby could
never live outside of their womb and the doctor told them if they did
not have the procedure that is being banned in this bill, they could
suffer a stroke, they could suffer paralysis, they could lose their
fertility. These women came out and put a face on this issue, a real,
human face; many of them very religious, many anti-choice, who said
this was an excruciatingly difficult choice, but they knew it was right
for themselves and their baby.
What we are about to do today--and I have no illusions; I know this
bill will pass--we are about to ban a procedure that doctors say is
needed to save the life and health of a woman. If I went up to you on
the street and I said, I know there is a medical procedure that is
sometimes necessary to save the life and health of a woman, would you
want to ban it or would you be willing to ban it except for those
occasions when it is necessary. I think and I know most Americans would
do the humane thing and say absolutely, we want to make an exception
for life and health. That is not what is done in this bill.
The doctors tell us this is a dangerous piece of legislation. The
doctors tell us this is an unconscionable piece of legislation. The
doctors tell us that women's lives and health will be put at risk if we
pass this. I happen to believe, on issues such as these, we have to
turn to the women themselves who have faced this agonizing decision,
and to the doctors, the OB/GYMs whose job it is to bring life into the
world.
Well, when we have done that, they have told us not to go this route,
that if we are going to ban the procedure, always to have an exception,
always for the life and health of the woman. Yet this Senate is going
to turn its back on the women of this country, turn its collective back
on the doctors of this country, and basically outlaw a procedure they
say is necessary.
When the President signs this bill--and he will do so--it will be the
first time in history any President of either party has banned a
medical procedure that is necessary to save the life and health of the
people of this country. I think that is a historic moment, and I think
the people of this country will understand all of the ramifications.
There is no question about that.
To make it clear, I will reiterate what many of my colleagues who are
pro-choice have said. We believe Roe v. Wade was rightly decided. We
believe it balanced all the interests that were before the Court. We
believe when the Court said, in the very early stages of a pregnancy,
Senators, Congress people, stay out of this decision, they were right.
When the Court said, in the late stages of a pregnancy, the State can
control what occurs in an abortion, but always with an exception for
the life and health of a woman, we believe that is right.
Now the other side tells us: Oh, well, this bill has nothing to do
with Roe v. Wade. It does not in any way challenge Roe v. Wade. Well,
that is just untrue on its face. The Court has already ruled in the
Nebraska case that when you do not make an exception for health, when
you have vague definitions, that is violative of Roe.
What we are doing is passing a piece of legislation that will be
signed with great fanfare, and it will be declared unconstitutional
across the street. Instead, we could have joined hands across party
lines, we could have joined hands across ideological lines, we could
have banned every single late-term abortion with an exception for life
and health, but the other side refuses to do this--refuses to do this.
I do not understand how you can stand here and say you are doing the
right thing by the women in this country and not make an exception to
protect the health of a mother.
I hope many of us will vote this down. I have no illusions in the
final vote, but it has been an excellent debate. I hope America was
listening.
I thank you very much.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Madam President, I know I just have a few seconds, but
I do want to recognize the tremendous effort and work the majority
leader has made over the years on this issue. His presentation, when he
first came to the Senate, as the only physician in the Senate, was
compelling, persuasive, and I think one of the things that allowed us
to get the 60-plus votes we needed to have this bill passed on previous
occasions and now gives us the margin we have today. He is to share a
significant amount of credit for today's victory.
Thank you, Madam President.
The PRESIDING OFFICER. The majority leader.
Mr. FRIST. Madam President, on leader time, I will use just a
remaining few minutes.
The partial-birth abortion ban is finally at the finishing line. I
expect today the Senate will vote for the last time to end this morally
reprehensible procedure. We will have a bill on the President's desk,
and this President will sign the ban into law.
As a physician and as a board-certified surgeon, I can say without
equivocation that partial-birth abortion is brutal, it is barbaric, it
is morally offensive, and it is outside of the mainstream practice of
medicine.
Contrary to the claims of its supporters, partial-birth abortion is a
fringe procedure outside of the mainstream. It is not performed by
people who are board-certified surgeons. It is not found in common
medical textbooks. It is not taught in our surgical residency programs.
The sole purpose of this partial-birth abortion is to deliver a dead
baby. It is not, as some insist, to protect the life of the mother. In
fact, partial-birth
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abortion, as we have heard again and again, is dangerous to the health
of the mother, more dangerous than other alternatives. We could go on
and on with these undeniable medical facts in greater detail, but
something larger is at stake, and we speak to that powerfully with this
vote today.
Beyond even the ethical practice of medicine, our Nation's charter,
the Declaration of Independence, asserts our Creator has blessed us
with certain rights--rights from which we, as beings made in God's
image and likeness, cannot be alienated.
In destroying the body of a mature, unborn child, we are alienating
that child from his or her most essential right; and that is, the right
to life.
In doing so, we are violating the very premise of our Republic--that
our rights are enduring gifts of God, not privileges to be revoked by
human whim.
In Evangelium vitae, Pope John Paul II tells us true human freedom is
rooted in a ``culture of life.''
We will reaffirm in this Chamber that human personhood is precious,
that doing no harm is still the bedrock of medical morality, and that
we have the will to stop a practice we know is evil and morally
reprehensible.
I yield back the remainder of the time.
Mrs. BOXER. Madam President, I ask unanimous consent that I be
allowed to speak for 2 minutes from Senator Daschle's leader time.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from California.
Mrs. BOXER. Thank you.
Madam President, I want to reply to what the good Senator has said,
with great respect, when he says this procedure is outside the
mainstream. I want to point out, I respect his opinion, but I think
doctors who have gone into OB/GYN, if that is their field--I do not
believe the American College of OB/GYNs--45,000 doctors--are out of the
mainstream. I do not believe the American Medical Women's Association--
10,000 female doctors--are outside the mainstream. Nor do I believe the
American Public Health Association--thousands of doctors--are outside
the mainstream.
So although I totally respect the opinion of my colleague, and I
would fight for his right to have it, and his right to believe what he
does, I think it is a bit dismissive of the mainstream OB/GYN doctors
in this country, all of whom have told us, please do not pass this ban
that they have said is dangerous to women. They have said, to use their
words, it is risky to women, and they are very upset about it.
I did not want the Senate to believe these organizations back this
bill, because they do not. We have put those letters into the Record.
I thank you very much.
The PRESIDING OFFICER. The majority leader.
Mr. FRIST. Madam President, obviously we have a strong disagreement
in the statements that were just made. Let me finally close by saying
this is a brutal procedure. It is a barbaric procedure. It offends the
sensibilities of 90 percent or more of Americans. It is outside of
mainstream medicine as practiced in the United States of America today.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the conference report. The clerk will
call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from Texas (Mrs.
Hutchison) is necessarily absent.
Mr. REID. I announce that the Senator from North Carolina (Mr.
Edwards) is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 64, nays 34, as follows:
[Rollcall Vote No. 402 Leg.]
YEAS--64
Alexander
Allard
Allen
Bayh
Bennett
Biden
Bond
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Carper
Chambliss
Cochran
Coleman
Conrad
Cornyn
Craig
Crapo
Daschle
DeWine
Dole
Domenici
Dorgan
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hollings
Inhofe
Johnson
Kyl
Landrieu
Leahy
Lincoln
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (NE)
Nickles
Pryor
Reid
Roberts
Santorum
Sessions
Shelby
Smith
Specter
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
NAYS--34
Akaka
Baucus
Bingaman
Boxer
Cantwell
Chafee
Clinton
Collins
Corzine
Dayton
Dodd
Durbin
Feingold
Feinstein
Graham (FL)
Harkin
Inouye
Jeffords
Kennedy
Kerry
Kohl
Lautenberg
Levin
Lieberman
Mikulski
Murray
Nelson (FL)
Reed
Rockefeller
Sarbanes
Schumer
Snowe
Stabenow
Wyden
NOT VOTING--2
Edwards
Hutchison
The conference report was agreed to.
Mr. McCONNELL. I move to reconsider the vote, and I move to lay that
motion on the table.
The motion to lay on the table was agreed to.
____________________