[Congressional Record Volume 151, Number 51 (Monday, April 25, 2005)]
[Senate]
[Pages S4219-S4223]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               FILIBUSTER

  Mrs. BOXER. Mr. President, there has been so much misinformation on 
the filibuster I want to make sure I put my thoughts into the record. 
We hear Republican Senators actually get up and say they never 
filibustered any judges. I was stunned, so we went back into history 
and we have a chart for that.
  The first filibuster in modern times was started by the Republicans 
in 1968 against Abe Fortas for the Supreme Court. We know there have 
been 11 in recent times, 11 filibusters. Here is one in 1971, probably 
started by the Democrats, William Rehnquist to be a Supreme Court 
justice. Here is one in 1980, probably started by the Republicans, 
Stephen Breyer, to be a judge on the First Circuit Court of Appeals. 
Then in 1984 Harvie Wilkinson, Fourth Circuit Court of Appeals. In 
1986, Sydney Fitzwater, to be a judge for the Northern District of 
Texas. 1992, Edward Earle Carnes to be judge on the Eleventh Circuit. 
1994, Lee Sarokin to be a judge on the Third Circuit Court of Appeals. 
In 1999, Brian Theodore Stewart, to be a judge for the District

[[Page S4220]]

of Utah. In the year 2000--and this is my State--there was a major 
filibuster; we fought hard and we beat the filibuster. We got the votes 
needed, Richard Paez to be a judge on the Ninth Circuit Court of 
Appeals and Marsha Berzon to be a judge on the Ninth Circuit.
  When we hear Republicans say they never launched a filibuster, you 
can ask, what? Here is Bob Smith who led the filibuster, Republican, 
from New Hampshire. Here is what he said:

       . . . It is no secret that I have been the person who has 
     filibustered these two nominations, Judge Berzon and Judge 
     Paez.

  Here he is again:

       So don't tell me we haven't filibustered judges and that we 
     don't have the right to filibuster judges on the floor of the 
     Senate. Of course we do. That is our constitutional role.

  Here is a Republican Senator who started a filibuster against two 
judge nominees for the Ninth Circuit. He called this a ``constitutional 
role.'' Now we have other Republicans saying the constitutional option 
is no filibuster. Wrong. You are contradicting your own people here.
  Now, Orrin Hatch himself admitted there were filibusters on the 
floor:

       Indeed, I must confess to being somewhat baffled that, 
     after a filibuster is cut off by cloture, the Senate could 
     still delay a final vote on nomination.

  That is Orrin Hatch. This is the major point I want to make, Who is 
the real leader out there pushing to end the filibuster on judges? 
Pushing, pushing, pushing?
  And, by the way, it is unbelievable we have confirmed 205 of George 
W. Bush's nominees to the courts. We have stopped 10. Let me say it 
again: 205 have gotten through and we have stopped 10.
  Now, do the math, and I will say to you: In your life, if you get 95 
percent of what you want, wouldn't you go around with a smile on your 
face? I would. If I got 95 percent of what I wanted from the Senate, I 
would be so happy. If I got 95 percent of what I wanted from my 
family--if they sought my way 95 percent of the time--I would be happy; 
especially when they were teenagers, I would be really happy.
  But do you know what. If I were arrogant, and I wanted everything, 
and I thought I knew best all the time, and I wanted to grab all the 
power, I would be sunk. So these folks over here, who got 95 percent of 
what they wanted--205 judges, and then 10 whom we thought were out of 
the mainstream--and, by the way, wow, are they out of the mainstream--
they are unhappy. And now they are going to change the rules in the 
middle of the game.
  For 200 years of our Constitution we have been able to speak and 
express ourselves. I have to tell you, this is dangerous to our 
democracy. When one party wants its all, when one party wants to stop 
minority rights, that is dangerous. And that is where we are.
  But here is the best of all--and I hope people will know this--when 
we had this filibuster on Marsha Berzon, and when we had this 
filibuster of Richard Paez, guess who voted to keep the filibuster 
going on Richard Paez. I will give you a clue. He appeared on a big 
screen over the weekend. I will give you another clue. He was elected 
by the Republicans to be the majority leader of the Senate, Bill Frist. 
He says filibusters are terrible, filibusters are wrong. Yet he voted 
to continue the filibuster on Richard Paez.
  Mr. President, I ask unanimous consent that Executive vote No. 37 of 
March 8, 2000, on Richard Paez to cut off the filibuster be printed in 
the Record.
  There being no objection, the vote was ordered to be printed in the 
Record, as follows:

                                YEAS--85

     Abraham (R-MI)
     Akaka (D-HI)
     Ashcroft (R-MO)
     Baucus (D-MT)
     Bayh (D-IN)
     Bennett (R-UT)
     Biden (D-DE)
     Bingaman (D-NM)
     Bond (R-MO)
     Boxer (D-CA)
     Breaux (D-LA)
     Bryan (D-NV)
     Burns (R-MT)
     Byrd (D-WV)
     Campbell (R-CO)
     Chafee, L. (R-RI)
     Cleland (D-GA)
     Cochran (R-MS)
     Collins (R-ME)
     Conrad (D-ND)
     Coverdell (R-GA)
     Crapo (R-ID)
     Daschle (D-SD)
     Dodd (D-CT)
     Domenici (R-NM)
     Dorgan (D-ND)
     Durbin (D-IL)
     Edwards (D-NC)
     Feingold (D-WI)
     Feinstein (D-CA)
     Fitzgerald (R-IL)
     Gorton (R-WA)
     Graham (D-FL)
     Grams (R-MN)
     Grassley (R-IA)
     Gregg (R-NH)
     Hagel (R-NE)
     Harkin (D-IA)
     Hatch (R-UT)
     Hollings (D-SC)
     Hutchison (R-TX)
     Inouye (D-HI)
     Jeffords (R-VT)
     Johnson (D-SD)
     Kennedy (D-MA)
     Kerrey (D-NE)
     Kerry (D-MA)
     Kohl (D-WI)
     Kyl (R-AZ)
     Landrieu (D-LA)
     Lautenberg (D-NJ)
     Leahy (D-VT)
     Levin (D-MI)
     Lieberman (D-CT)
     Lincoln (D-AR)
     Lott (R-MS)
     Lugar (R-IN)
     Mack (R-FL)
     McConnell (R-KY)
     Mikulski (D-MD)
     Moynihan (D-NY)
     Murray (D-WA)
     Nickles (R-OK)
     Reed (D-RI)
     Reid (D-NV)
     Robb (D-VA)
     Roberts (R-KS)
     Rockefeller (D-WV)
     Roth (R-DE)
     Santorum (R-PA)
     Sarbanes (D-MD)
     Schumer (D-NY)
     Sessions (R-AL)
     Smith (R-OR)
     Snowe (R-ME)
     Specter (R-PA)
     Stevens (R-AK)
     Thomas (R-WY)
     Thompson (R-TN)
     Thurmond (R-SC)
     Torricelli (D-NJ)
     Voinovich (R-OH)
     Warner (R-VA)
     Wellstone (D-MN)
     Wyden (D-OR)

                                NAYS--14

     Allard (R-CO)
     Brownback (R-KS)
     Bunning (R-KY)
     Craig (R-ID)
     DeWine (R-OH)
     Enzi (R-WY)
     Frist (R-TN)
     Gramm (R-TX)
     Helms (R-NC)
     Hutchinson (R-AR)
     Inhofe (R-OK)
     Murkowski (R-AK)
     Shelby (R-AL)
     Smith (R-NH)

                             NOT VOTING--1

       
     McCain (R-AZ)
  Mrs. BOXER. So let's hold people accountable for what they do and 
say. I admit I was foolish on the filibuster when I was a freshman and 
I came in here. I also wanted everything to go my way. I was wrong. And 
it is hard for a Senator to say they are wrong. We do not like to admit 
it. But I was wrong. But how can Bill Frist lead the charge, say that 
filibusters are wrong, it is terrible, it is awful, it is against the 
Constitution, and everything else he says--which I do not agree with 
any of what he said--and then not address the fact that he voted to 
sustain a filibuster. It does not make sense.
  We have soldiers dying in Iraq, in Afghanistan. Lord knows where they 
are going to go in this very dangerous world. And the mission: to make 
sure democracy thrives. Do you know that when I was in Iraq, we were 
told one of the reasons the minority groups there, the Kurds, felt 
comfortable was they knew they were going to copy the model of this 
democracy, including the filibuster?
  They said: Oh, we know we are going to have our rights heard because 
we are going to have the right to filibuster. They even told that to a 
Republican Senator who went over there.
  By the way, when I was in the Palestinian territories--this is 
another interesting part of my trip--the first thing the Palestinians 
said they want to do is make sure their people get a monthly social 
security benefit that is guaranteed. I truly wanted to ask the Minister 
there--I think he was the Minister of the Interior--to please contact 
President Bush and tell him that a guaranteed social security benefit 
was their first priority, as the President tries to undo the guaranteed 
benefit for Social Security. That trip I went on was fascinating in so 
many different ways. But mostly, what I realized was, we need to be the 
model of freedom and democracy. If we start taking away minority 
rights, if we start saying we cannot stand to hear each other--by the 
way, I understand it. I know it is painful to hear me speak for some of 
my colleagues who do not agree with me. They say: Oh, I can't listen to 
one more word. And I feel the same way when they start talking about 
things with which I fundamentally disagree.
  But that is what it is about here because all of America has to be 
represented here, from the most liberal, to the most conservative, to 
everything in between. All of us have to feel represented. But if we 
stop the ability of the other to debate and discuss, especially on 
judges, where it is a lifetime appointment, at a very high salary--they 
never have to face the electorate. This is the only moment.
  So what if we say they have to meet a higher bar? That is a good 
thing on behalf of the people. Because--guess what--do you know what 
they rule on? They rule on everything to do with your life. They rule 
on whether there should be child labor. They rule on whether you should 
be harassed and exploited in the workplace. They rule on whether you 
have the right to clean air and safe drinking water. They rule on 
everybody's rights: voting rights, civil rights, human rights. They 
rule on whether your child can get a good education. They rule on 
whether corporate America must provide a safe workplace for you. They 
rule on whether the Federal Government can say that people who pollute 
have to clean up that pollution.
  Why do you think there are so many people who want to get every 
single judge? Because they want judges of a certain philosophy. That is 
wrong. We should work for mainstream, fair judges--that is what we need 
on the bench--who can see all sides. But when one side wants 
everything, when 95 percent is not enough, when 205 to 10 is not good 
enough, beware of what is coming down. Do not change the rules

[[Page S4221]]

in the middle of the game. That is not fair. That is not right. It is 
throwing a fit over something, when you have gotten 95 percent of what 
you want.
  You do not change the rules in the middle of the game, like they did 
in the House on the Ethics Committee. Do not do that. That is not 
right, it is not fair, and it is wrong. It is wrong for the American 
people.

  Everyone in the world looks to America--everyone in the world. When 
we start weakening our rules around here, and weakening the rights of 
the people to exercise the rights they have been given as Senators, we 
are in a lot of trouble.
  So, Mr. President, I have gone through a number of issues, starting 
off with the most solemn, which was reading the names of those in the 
military who have died, who were either from California or were based 
in California. I promised my constituents I would always come to the 
floor periodically to remember them. The saddest thing: 26 percent of 
the dead soldiers happened to be either from California or based in 
California. That is a huge number. So it is with a very heavy heart 
that I did that.
  But we have a lot to do, a lot on our agenda. I hope we will stay 
focused on the things that matter to the people--on the things that 
matter to the people. Let's not spend time changing the rules of the 
Senate that we have had for so many years. Let's not do that. Let's do 
the work. Let's get a success strategy for Iraq. Let's get health care 
for our people. Let's get education for our children. Let's make sure 
the air is clean and the water is safe, that we protect our beautiful 
places. Let's make sure we attack this issue of gas prices, which in my 
State we are seeing $3 a gallon. I wrote to the FTC, and I said: Please 
investigate what is going on with the refiners. Please look at these 
mergers that are coming at us now that will make it even worse.
  We have work to do. But, no, we have to have our leader go on a 
Sunday, or whatever, and--big publicity--address a group about changing 
the rules of the filibuster. This does not meet the test, it seems to 
me, of doing the job.
  We know there will be fallout. That is the nuclear option, and 
nuclear explosions have fallout. It doesn't mean shutting down the 
Senate, but I can assure you, it is going to mean working harder in the 
Senate, working really hard, working on some things that maybe we 
haven't worked on in a while, forcing that. But I have to tell you, 205 
to 10, you should be smiling, not frowning, not addressing people and 
saying how terrible you are doing. You should be happy. It is a heck of 
a lot better than a lot of Democratic Presidents have done. You should 
be happy.
  You should bring us judges that are mainstream, and there wouldn't be 
any filibusters. I have supported so many. You succeeded 205 times. You 
failed 10 times because you tried to put people on there who really 
were so far out of the mainstream it would be dangerous.
  Can't we compromise this thing and come together? Let's get back to 
work.
  I ask unanimous consent that my prepared text on the Weldon amendment 
be printed in the Record.
  There being no objection, the text was ordered to be printed in the 
Record, as follows:

                            Weldon Amendment

       Mr. President, I rise this evening to talk about the Weldon 
     amendment, a sweeping provision endangering women's health 
     that was slipped into the 2005 appropriations bill at the 
     last minute without any hearings, discussions, or votes.
       In November, Senator Frist promised me an up or down vote 
     on repealing the Weldon amendment by the end of April. Last 
     week, I decided to hold off on that vote for the time being.
       First, the Weldon amendment will expire in less than 6 
     months. I believe that the best way to defeat this provision 
     right now is to work with Senator Harkin and Members on both 
     sides of the aisle to remove or modify it in the next 
     spending bill.
       I have talked at length with Senator Harkin about this. He 
     has promised that he will work closely with Senator Specter 
     and me to underscore our commitment to a real conscience 
     clause for doctors and hospitals without undermining our 
     commitment to the health of women across our country.
       Second, two lawsuits have already been filed challenging 
     the constitutionality of Weldon. Their arguments are 
     compelling and I believe that the plaintiffs one of which is 
     the California attorney general--will prevail.
       There has been a lot of misinformation about Weldon. So I 
     thought it would help to show this provision in black and 
     white:
       Here is what Weldon says:
       (d)(1) None of the funds made available in this Act may be 
     made available to a Federal agency or program, or to a State 
     or local government, if such agency, program or government 
     subjects any institutional or individual health care entity 
     to discrimination on the basis that the health care entity 
     does not provide, pay for, provide coverage of, or refer for 
     abortions.
       (2) In this subsection, the term ``health care entity'' 
     includes an individual physician or other health care 
     professional, a hospital, a provider-sponsored organization, 
     a health maintenance organization, a health insurance plan, 
     or any other kind of health care facility, organization or 
     plan.
       I have read this language over and over again. And nowhere 
     do I find the words ``religion, morals, beliefs, or values.''
       That is because Weldon is not a conscience clause. It is a 
     denial clause because it could deny women emergency care when 
     their lives are in danger, deny low-income rape victims 
     reproductive health care, deny doctors the right to give 
     their patients vital information, and deny states the ability 
     to enforce critical laws ensuring the health of women.
       Some are saying that Weldon is needed to protect the 
     religious beliefs of doctors and hospitals that don't want to 
     perform abortions. But that is not true.
       No Federal law forces any doctor to perform an abortion. 
     And no Federal law forces any hospital to perform an 
     abortion, unless the woman will die without an emergency 
     procedure.
       In fact, we already have many Federal and State laws 
     protecting the conscience of our health care providers, 
     including the 1973 Church amendment.
       That conscience clause says that public authorities may not 
     require any individual or health care entity that receives 
     financial assistance under our federal health programs to 
     perform or assist in the performance of any sterilization 
     procedure or abortion if his performance or assistance in the 
     performance of such procedure or abortion would be contrary 
     to his religious beliefs or moral convictions make its 
     facilities available for the performance of any sterilization 
     procedure or abortion if the performance of such procedure or 
     abortion in such facilities is prohibited by the entity on 
     the basis of religious beliefs or moral convictions, or 
     provide any personnel for the performance or assistance in 
     the performance of any sterilization procedure or abortion if 
     the performance or assistance in the performance of such 
     procedures or abortion by such personnel would be contrary to 
     the religious beliefs or moral convictions of such personnel. 
     Or discriminate in the employment, promotion, or termination 
     of employment of any physician or other health care 
     personnel, or discriminate in the extension of staff or other 
     privileges to any physician or other health care personnel, 
     because he performed or assisted in the performance of a 
     lawful sterilization procedure or abortion, because he 
     refused to perform or assist in the performance of such a 
     procedure or abortion on the grounds that his performance or 
     assistance in the performance of the procedure or abortion 
     would be contrary to his religious beliefs or moral 
     convictions, or because of his religious beliefs or moral 
     convictions respecting sterilization procedures or abortions.
       It is not just the Federal law that offers protections. As 
     you can see on this chart, some 46 States--almost every one 
     of them--have enacted their own conscience clauses for 
     doctors and providers who don't want to provide abortions.
       Some are claiming that Weldon is simply a clarification of 
     current law. I find that amazing, given that it takes hours 
     for even the most seasoned attorneys and lawmakers to make 
     any sense of this provision. There is nothing clarifying 
     about it.
       Weldon is a giant loophole that effectively bars federal, 
     state, and local governments from enforcing laws protecting 
     the reproductive health of women.
       Most Americans, including most people of faith, believe 
     that we need to strike the right balance between honoring 
     personal beliefs and protecting the public at large.
       In one survey, 89 percent of people said they oppose 
     allowing insurance companies to refuse to pay for medical 
     services on religious grounds.
       Weldon takes it a step further, allowing any insurance 
     company, HMO, or other entity to refuse to provide services 
     or referrals on any grounds, and in any circumstances, even 
     if a woman's life is in danger.
       Late last week, Rev. Carlton Veazey, the president of the 
     Religious Coalition for Reproductive Choice, brought me 2,000 
     petitions from people of faith in all 50 States.
       These petitions said that, ``Weldon is not just bad law, it 
     is immoral law, dangerous law, and women will be hurt by it, 
     some perhaps even killed by it.''
       What do our consciences say about that?
       What do our consciences say about helping the thousands of 
     women who become pregnant as a result of rape each year? The 
     Weldon amendment makes no exceptions for them, or for women 
     whose lives are in serious danger.
       Weldon tells our State and local governments that they can 
     not ensure that any woman, including victims of rape and 
     incest, receive abortion referrals and services without 
     losing all their Federal health, education, and labor 
     funding.
       Weldon tells our State and local governments that their 
     title X clinics no longer

[[Page S4222]]

     have to refer a poor woman who asks about an abortion, even 
     if she has been raped or her life is in danger.
       Weldon tells our State and local governments that they 
     should no longer honor the Hyde amendment, which provides 
     Medicaid coverage for low-income women who are victims of 
     rape or incest, or whose lives are in danger.
       Here is what the Hyde amendment says:

       None of the funds appropriated under this Act, and none of 
     the funds in any trust fund to which funds are appropriated 
     under this Act, shall be expended for any abortion. . . .
       The limitations established in the preceding section shall 
     not apply to an abortion (1) if the pregnancy is the result 
     of an act of rape or incest; or (2) in the case where a woman 
     suffers from a physical disorder, physical injury, or 
     physical illness, including a life-endangering physical 
     condition caused by or arising from the pregnancy itself, 
     that would, as certified by a physician, place the woman in 
     danger of death unless an abortion is performed. . . .

       What if a poor woman is raped by her uncle? Say she does 
     not have a job. She relies on Medicaid for her health care. 
     She is not told about the option of emergency contraception 
     and becomes pregnant.
       What if she cannot emotionally bear to give birth to her 
     relative's child--her rapist's child?
       Under the Hyde amendment we say Medicaid must pay for her 
     abortion if she is the victim of rape or incest. But, under 
     Weldon, that is no longer the case.
       What if she goes to her regular Medicaid managed care 
     organization, but is never told that these services are 
     covered, and never referred anywhere else? The States can no 
     longer enforce the Hyde amendment, or even their own laws 
     helping rape and incest victims.
       What do our consciences say about helping women who will 
     die without emergency abortions?
       Weldon has no exceptions for women whose lives are in 
     danger.
       It tells States that they cannot enforce laws ensuring that 
     poor women who face life-threatening situations will receive 
     abortion referrals or services.
       It undermines the 1986 Federal Emergency Medical Treatment 
     and Active Labor Act, EMTALA, which says that if a pregnant 
     woman comes to a hospital with a life-threatening situation, 
     she will receive the treatment needed to be stabilized, even 
     if that includes an abortion.
       This law states:

       If any individual comes to a hospital and the hospital 
     determines that the individual has an emergency medical 
     condition, the hospital must provide . . .
       . . .within the staff and facilities available at the 
     hospital, for such further medical examination and such 
     treatment as may be required to stabilize the medical 
     condition, . . .

       A San Francisco doctor called my office to tell some of 
     these tragic stories. One of her patient's blood was not 
     clotting. She was bleeding for over an hour.
       If she had been sent home or encouraged to continue her 
     pregnancy, she would have likely died. Thankfully, she got 
     care.
       Another woman, a married mother, came to the hospital with 
     an ectopic pregnancy, which means the pregnancy was 
     developing in her cervix. If a woman grows a pregnancy in her 
     cervix, she can die.
       Again, this doctor was able to save her life.
       But, what if these woman had walked into a hospital that 
     refused to provide emergency abortions?
       The Congress passed the Emergency Treatment and Active 
     Labor Act to ensure that no one is ever turned away if their 
     lives are in danger.
       Now, Weldon tells a hospital or HMO to ignore this law. It 
     says they can let a woman die if they don't want to perform 
     an abortion.
       And there is nothing States can do about it without losing 
     all their Federal labor, health, and education funding.
       Weldon allows all health care companies to gag doctors, and 
     deny women vital information about their reproductive health 
     options.
       Weldon tells State and local governments they can no longer 
     protect the doctor-patient relationship through Federal or 
     State laws without losing all their Federal health, 
     education, and labor funding.
       Weldon conflicts with current title X Federal regulations, 
     which require family planning clinics to:

       Offer pregnant women the opportunity to be provided 
     information and counseling regarding each of the following 
     options:
       (A) Prenatal care and delivery;
       (B) Infant care, foster care, or adoption; and
       (C) Pregnancy termination.
       (ii) If requested to provide such information and 
     counseling, provide neutral, factual information and 
     nondirective counseling on each of the options, and referral 
     upon request, except with respect to any option(s) about 
     which the pregnant woman indicates she does not wish to 
     receive such information and counseling.
       Under Weldon, a title X clinic can take our funding, but 
     refuse to give women information. Think about what this could 
     mean for the poor women who rely on these clinics.
       Last year, a married Latina woman in her early 30s came to 
     one of our title X family planning clinics in Los Angeles. 
     She had two children under six.
       She had been to the clinic before because her husband is 
     unfaithful. He had infected her with severe STDs.
       When she became pregnant again, she was very scared about 
     having the baby. Her home life was extremely unstable, and 
     she was worried about the impact of STDs on the fetus.
       She made the extremely difficult decision to have an 
     abortion. She asked the clinic to refer her. It did. That was 
     the law.
       But now Weldon is in direct conflict with this Federal 
     regulation saying that title X family planning clinics that 
     serve poor women must give them a referral if asked.
       Now clinics can ignore this law. Women can be left without 
     information. And States have no power to act.
       The American College of Obstetricians and Gynecologists 
     says:
       The Federal refusal clause would jeopardize a physician's 
     ability to inform a patient of all her legal medical options 
     at federally funded Title X family planning clinics, and 
     would categorize the Title X referral requirement as 
     discriminatory--effectively gagging physicians across the 
     country.
       According to ACOG ethical guidelines, ``Under all 
     conditions of practice . . . consultation and referral should 
     be carried out in the patients' best interest.''
       Weldon is not in the patient's best interest. It allows 
     title X clinics, HMOs, and anyone else to deny our health 
     care professionals their right to free speech and their 
     patients the right to full information about their options.
       If States try to enforce their own laws, they could lose 
     billions of dollars in Federal labor, health, and education 
     funding. For example:
       All 50 States have the power to ensure that hospital 
     mergers don't undermine the public interest. In some cases, 
     an attorney general might determine that, for a merger to go 
     forward, the two parties must find some way to protect the 
     reproductive health care of women.
       The Indiana supreme court has held that limits on State 
     medical assistance for abortion in cases of life 
     endangerment, rape or incest are unconstitutional under the 
     State constitution because they do not include exceptions for 
     women's health.
       The New Mexico supreme court held that a regulation 
     limiting medical assistance for abortion in cases of life 
     endangerment, rape or incest is unconstitutional under the 
     New Mexico constitution.
       A court in Illinois has held that under a law limiting 
     State medical assistance for abortion to cases of life 
     endangerment is unconstitutional, under the constitution of 
     Illinois.
       Under Weldon, States face a Hobson's choice between denying 
     reproductive health services and information to women or 
     losing billions of dollars in Federal labor, health, and 
     education funding.
       They are told they have to ignore their constitutions, to 
     ignore Federal law and State law. They are told they no 
     longer can find creative ways to ensure women's health.
       In New Jersey, a court approved an arrangement that set 
     aside some of the assets of a secular hospital prior to its 
     acquisition by a Catholic hospital.
       The assets were meant to support the continuation of the 
     secular hospital's mission of providing reproductive health 
     services, which it would not be able to fulfill after the 
     merger.
       Now, New Jersey can no longer enforce this arrangement 
     without risking more than $7 billion in Federal funding.
       Now, some say that States are free to enforce laws 
     protecting reproductive health. They say States can do 
     whatever they want if they just give up Federal funds. Sure.
       Let's look at what States would lose. And, keep in mind: 
     these numbers are very conservative.
       This chart has California losing at least $37 billion in 
     Federal funding, but our Attorney General has put the number 
     at $49 billion.
       No State can afford to give up substantial resources that 
     help educate and care for its children, provide for and train 
     its workers, and bring health care to all its citizens.
       This is not about choice, it is about coercion.
       That is one of the many reasons why the California attorney 
     general has sued in Federal court, a lawsuit that I believe 
     will prevail.
       The suit says the Weldon amendment is unconstitutional 
     because it restricts a woman's right to abortion when 
     necessary to preserve her life or health.
       It says that Weldon exceeds Congress's spending power 
     because it is so vague.
       In South Dakota v. Dole, 1987, the court said that when 
     ``Congress desires to condition the States' receipt of 
     federal funds, `it must do so unambiguously , enable[ing] the 
     States to exercise their choice knowingly, cognizant of the 
     consequences of their participation.'''
       Another lawsuit filed in the District of Columbia on behalf 
     of health care clinics makes the same claim. It says: ``The 
     amendment `leaves Title X grantees to guess how to meet 
     Weldon's mandate while meeting the mandates of [Title X 
     regulations], and, indeed, whether this is even possible.'''
       If States aren't sure how to comply with Weldon, they 
     cannot make a knowing choice. And, with the amount of funding 
     at stake, they are bound to err on the side of extreme 
     caution, thereby creating a chilling effect.
       The California lawsuit says that Federal funding conditions 
     must be rationally related to the Federal interest in the 
     program receiving them.

[[Page S4223]]

       What does unemployment insurance or No Child Left Behind 
     funds have to do with reproductive health?
       Nothing. But the penalties under Weldon are so 
     unconstitutionally extreme and coercive that States have no 
     choice but to comply.
       This amendment is unconstitutional and dangerous.
       It is not a conscience clause. We already have that.
       It is a denial clause that will cause unnecessary hardship 
     for victims of rape, women whose lives are in danger, poor 
     women who rely on their doctors for information, and States 
     that will be forced to choose between protecting women and 
     losing billions of dollars in funds.
       If the Senate wants a new conscience clause, we can draft a 
     real conscience clause.
       I will work with my colleagues on both sides of the aisle 
     to do just that.
       But I will not back down until we alter or repeal the 
     Weldon language as written and do right by the women, 
     doctors, and States across America.

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