[Congressional Record Volume 150, Number 76 (Thursday, June 3, 2004)]
[Senate]
[Pages S6443-S6444]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     PARTIAL-BIRTH ABORTION RULING

  Mr. BROWNBACK. Mr. President, I rise to address the alarming decision 
handed down earlier this week by a District Court in California on 
partial birth abortion.
  The judge's decision was wrong on many fronts. It is wrong on the 
medical facts, and it is wrong in its blatant disregard of 
Congressional findings. Most importantly, the decision is also wrong on 
the law. This ruling is unconstitutional, as well as violative of 
fundamental human rights, because it drives a wedge between biological 
humanity which prenatal human offspring undeniably have, and legal 
personhood i.e., the right to the equal protection of the law. The 
repellant notion underlying Roe v. Wade--that there are ``subhuman'' 
members of the human species--conflicts directly with the very purposes 
of the thirteenth, fourteenth, and fifteenth amendments, which undid 
the great injustice of treating black Americans as slaves and property 
instead of as human beings entitled at law to full respect. I realize 
that the Supreme Court has not yet repudiated this holding of Roe, 
which it imposed upon the Nation in 1973, but this case decided by one 
district court in California is clearly going in a direction that 
contradicts everything we value about the Constitution and the 
principles under which this Nation and its people operate.
  First, Judge Phyllis Hamilton dismisses the overwhelming medical 
evidence that it is never medically necessary--to save the life of the 
mother or any other reason--to perform the gruesome partial-birth 
abortion procedure--in which a young human is partially born, so that 
only the head remains in her mother, and then a sharp object pierces 
the back of the child's head and sucks the child's brain out, killing 
the child.
  Think about that, a baby--a young human baby--is partially born, so 
that only her head remains in her mother's birth canal. Then an 
abortion-provider punctures the back of the child's head with a 
surgical instrument. Then the abortion provider suctions the young 
human's brains out, leaving the child dead, dead, dead.
  There is no recourse for the young human. This is a cold-blooded 
murder. And if this District Court has its way, the young child will 
never receive justice for her gruesome murder.
  Before I address Judge Hamilton's disregard of Congressional 
findings, I want to talk in particular about the issue of fetal pain, 
which Judge Hamilton alleges is ``irrelevant.''
  I would submit that were we to see a puppy have its head punctured 
and brains sucked out, we would not consider it irrelevant. We would be 
moved to protect the puppy.
  Yet, we are not talking about a dog; we are talking about a young 
human. And the judge in California says that pain is irrelevant when we 
are talking about a young human.
  We are elected representatives. We have an obligation to defend the 
Constitution. This includes defending the right to life, liberty and 
the pursuit of happiness. First among these 3 is life. We have an 
obligation to defend the right to life for the most defenseless and 
helpless among us. Our laws should protect the sanctity and dignity of 
every innocent human life from the moment of conception.
  Judge Hamilton notes that there is some debate within the medical 
community on the issue of fetal pain. Then she acknowledges that: ``the 
position that Congress has taken [on pain experienced by unborn 
children] is neither incorrect nor entirely unsupported.''
  But then she disregards the Congressional finding that partial-birth 
abortion is never medically necessary and writes something incredibly 
callous: ``[Pain experienced by unborn children] is, however, 
irrelevant to the question of whether the Act requires a health 
exception, as discussed in this court's conclusions of law.''
  Irrelevant? First, partial-birth abortion is never medically 
necessary, and since the gruesome partial-birth abortion procedure is 
never medically necessary, an essential reason for abolishing this 
dreadful form of death is the terrible pain inflicted on the unborn 
child.
  Pain experienced by an unborn child is very relevant.
  Just before the recess, I introduced the Unborn Child Pain Awareness 
Act, S. 2466, with nearly a quarter of the Members of this chamber as 
original cosponsors.
  This legislation would require those who perform abortions on unborn 
children 20 weeks after fertilization to inform the woman seeking an 
abortion of the medical evidence that the unborn child feels pain.
  The bill would also ensure that the woman, if she chooses to continue 
with the abortion procedure after being given the medical information, 
has the option of choosing anesthesia for the child, so that the unborn 
child's pain is less severe.
  Women should not be kept in the dark; women have the right to know 
what their unborn child experiences during an abortion. Unborn children 
should be spared needless, deliberately-inflicted pain.
  Many among us are unaware of the scientific, medical fact that unborn 
children can feel, but it is true. Not only can they feel, but their 
ability to experience pain is heightened. The highest density of pain 
receptors per square inch of skin in human development occurs in utero 
from 20 to 30 weeks gestation.
  An expert report on fetal development, prepared for the partial birth 
abortion ban trials, notes that while unborn children are obviously 
incapable of verbal expressions, we know that they can experience pain 
based upon anatomical, functional, physiological and behavioral 
indicators that are correlated with pain in children and adults.

  Unborn children can experience pain. This is why unborn children are 
often

[[Page S6444]]

administered anesthesia during in utero surgeries.
  Think about the pain that unborn children can experience, and then 
think about the more gruesome abortion procedures. Of course, we have 
heard about partial birth abortion, but also consider the D&E abortion. 
During this procedure, commonly performed after 20 weeks--when there is 
medical evidence that the child can experience severe pain--the child 
is torn apart limb-from-limb. Think about how that must feel to a young 
human.
  Pain is absolutely relevant to the subject at hand.
  Oddly, one of Judge Hamilton's reasons for ruling against the 
partial-birth abortion ban is that: ``[Fetal pain] appears to be 
irrelevant to the question of whether [partial-birth abortions] should 
be banned, because it is undisputed that if a fetus feels pain, the 
amount is no less and in fact might be greater in D&E by 
disarticulation than with the [partial-birth abortion] method.''
  Apparently, Judge Hamilton believes that fetal pain is irrelevant to 
the issue at hand because other abortions might be more painful. 
Clearly, Judge Hamilton's logic is flawed.
  Judge Hamilton's decision crosses the line. What we have seen in this 
week's District Court decision is judicial bias and judicial activism 
at its extreme. Judge Hamilton egregiously reveals her own bias in 
favor of abortion when she writes: ``The court found all of the 
plaintiffs' experts not only qualified to testify as experts, but 
credible witnesses based largely on their vast experience in abortion 
practice. However, of the four government witnesses who were qualified 
as experts in ob/gyn, all revealed a strong objection either to 
abortion in general or, at a minimum, to the D&E method of abortion. 
The court finds that their objections to entirely legal and acceptable 
abortion procedures color, to some extent, their opinions on the 
contested intact D&E procedure.''
  By her logic, those with moral objections to abortion are biased--or 
``colored''--in their views against abortion, but those who perform 
abortions for money are not at all biased--or ``colored''--in their 
views favoring abortions.
  Sadly, the action of this California District Court is simply the 
latest instance of arrogant judges riding roughshod over the democratic 
process and constitutional law alike in a quest to impose a radical 
social agenda on America--in this case abortion on demand for any 
reason or no reason.
  We are a democracy, not a people ruled by judicial dictate.
  This district court decision is yet another example of why we need to 
reign in an increasingly reckless judiciary one, by means of stripping 
courts of authority they have usurped from the people and their 
legislative representatives, and two, through impeachment, when 
necessary at both the Federal and State level.
  Policy-making decisions--particularly those that have such sweeping 
social implications--must be made by the representatives of the people 
in a way that is respectful of long-established traditions and 
principles of our social order. When activist judges use their 
positions to achieve policy goals, they must be resolutely opposed.
  As the partial-birth abortion ban litigation continues in Nebraska 
and New York, I remain hopeful that we will see much more restraint and 
reasonable rulings coming forth from the judiciary.

                          ____________________