[Congressional Record Volume 150, Number 49 (Thursday, April 8, 2004)]
[Senate]
[Pages S4013-S4014]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            THE PARTIAL BIRTH ABORTION BAN ACT COURT TRIALS

  Mr. SANTORUM. Mr. President, I rise today to draw the attention of my 
colleagues to an issue that is currently being debated in Federal 
district courts in New York, Nebraska, and San Francisco. Today, the 
Partial Birth Abortion Ban Act, which we overwhelmingly passed and saw 
signed into law last year, is being challenged in three Federal courts 
across the country. This law bans the gruesome procedure known as 
partial birth abortion, which is performed over a three-day period in 
the second or third trimester of pregnancy. In this particular abortion 
technique, the physician delivers all but the baby's head through the 
birth canal, stabs the baby in the base of the skull with curved 
scissors, and then uses a suction catheter to remove the child's brain.
  As we have seen these trials go forward, I have been disturbed at 
some of the testimony that has been given in opposition to this 
legislation, and I wanted to ensure that my colleagues were aware of 
it.
  In particular, in the testimony of these doctors who are challenging 
this law, we see a complete disregard for any consideration of the pain 
a child experiences during a late-term abortion. On March 30, in the 
New York case, the judge asked the doctor testifying whether the fetus 
having pain ever crossed his mind. The witness, who does not perform 
partial birth abortions, but who has been present when they were done, 
replied, ``No.'' The judge further questioned the witness as to whether 
the mother of the child was informed as to the specifics of the 
procedure in terms that the patient can understand.

       The Witness: I guess I would say that whenever we describe 
     medical procedures we try to do so in a way that's not 
     offensive or gruesome or overly graphic for patients.
       The Court: Can they fully comprehend unless you do? Not all 
     of these mothers are Rhodes scholars or highly educated, are 
     they?
       The Witness: No, that's true. But I'm also not exactly sure 
     what using terminology like sucking the brains out would . . 
     .
       The Court: That's what happens, doesn't it?
       The Witness: Well, in some situations that might happen. 
     There are different ways it could be dealt with, but that is 
     one way of describing it.

  This witness further testified that up until the last steps of a 
partial birth abortion, the feet of the child could be moving.
  On April 5, another doctor testifying for the plaintiffs in New York 
showed similar callous disregard for the pain the fetus might feel.

       The Court: Do you ever tell them (the women) that after 
     that is done you are going to suction or suck the brain out 
     of the skull?
       The Witness: I don't use suction.
       The Court: Then how do you remove the brain from the skull?
       The Witness: I use my finger to disrupt the central nervous 
     system, thereby the skull collapses and I can easily deliver 
     the remainder of the fetus through the cervix.

[[Page S4014]]

       The Court: Do you tell them you are going to collapse the 
     skull?
       The Witness: No.
       The Court: The mother?
       The Witness: No.
       The Court: Do you tell them whether or not that hurts the 
     fetus?
       The Witness: I have never talked to a fetus about whether 
     or not they experience pain.
       The Court: I didn't say that, Doctor. Do you tell the 
     mother whether or not it hurts the fetus?
       The Witness: I don't believe the fetus does feel pain at 
     the gestational ages that we do, but I have no evidence to 
     say one way or the other so I can't answer that question.

  Yet even this week, Dr. Kanwaljeet Anand, a pediatrician at the 
University of Arkansas for Medical Sciences and a witness in the 
Nebraska case, testified that the procedure would cause ``severe and 
excruciating'' pain to the fetus. He said, ``What we have noted from 
studies of premature infants is that they have a much lower threshold 
for pain, meaning they are more sensitive to pain than the full term 
infant. In fact, some types of pain are three times greater sensitivity 
in the pre-term baby as compared to the full term neonate.'' He went on 
to say, ``I would say between 20 and 30 weeks of gestation is the 
greatest sensitivity to pain.'' ``The threshold for pain is very low. 
The fetus is very likely extremely sensitive to pain during the 
gestation of 20 to 30 weeks. And so the procedures associated with the 
partial-birth abortion that I just described would be likely to cause 
severe pain, right from the time the fetus is being manipulated and 
being handled to the time that the incision is made, and the brain or 
the contents, intracranial contents, are sucked out.''
  Another aspect of the current court challenges to this law centers 
around whether partial birth abortions are ever medically necessary. 
Those arguing against the law have expressed their opinion that the 
procedure is a medical necessity. The Department of Justice is 
defending the law by supporting the extensive congressional findings 
included in the Partial Birth Abortion Ban Act that indicate that 
partial birth abortions are never medically necessary. For this reason 
the Department of Justice has sought the release of abortion records in 
order to demonstrate that partial birth abortions are never medically 
necessary. In order to ensure patient privacy, any personal information 
on these records which could identify a patient would be deleted prior 
to being submitted for review. Since those arguing against this law 
have done so claiming the ``medical necessity of this procedure,'' it 
seems reasonable that they be required to show evidence which backs up 
their claims.
  Those testifying in opposition of banning the use of this inhumane 
procedure have continued to state its medical necessity. However, under 
questioning from Department of Justice attorneys and Judge Casey in New 
York, these abortionists have conceded that there are no studies which 
show this procedure to be less risky for the mother than other types of 
late-term abortions. They have also not been able to deliver any 
records showing its medical necessity, though this claim is at the core 
of their case. Some witnesses have indicated that this information 
would be found in the patient's medical chart--the ones which they have 
refused to release.
  On April 6, Judge Casey in New York had this to say on April 6 
regarding these medical records:

       I have no comprehension why there is such resistance from 
     doctors maintaining as they argue as to the appropriateness, 
     the safety, etc., of these procedures, why the records, in 
     this case that book, should not be opened for examination. To 
     not have it turned over to the government continues not in a 
     fashion of a level playing field and I don't think was what 
     was envisioned as to how we should administer trials of this 
     nature or any trials in this court.
       I would hope that the hospital would rethink their 
     position. I would also urge any of the plaintiffs, if they 
     have any records that are personal to them, that they don't 
     wait until, shall we say, by accident or whatever means they 
     are uncovered or stumbled upon; that they produce them, as 
     well they should know through their counsel that our system 
     believes in full discovery and disclosure, and concealing 
     facts or things in this context in our courts, in federal 
     court, is not something that is encouraged, just as the Court 
     has expressed a strong feeling that lawyers should be open 
     and completely candid in their statements to the Court.

  I came to the floor today about this because I want my colleagues to 
be aware of these cases as they go forward, and especially to point out 
examples of some of the blatant disrespect being shown for the lives of 
these partially-born children and their mothers.

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