[Congressional Record Volume 161, Number 137 (Tuesday, September 22, 2015)]
[Senate]
[Pages S6860-S6864]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      PAIN-CAPABLE UNBORN CHILD PROTECTION ACT--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the motion to proceed to H.R. 36, which the 
clerk will report.
  The senior assistant legislative clerk read as follows:

       Motion to proceed to Calendar No. 230, H.R. 36, a bill to 
     amend title 18, United States Code, to protect pain-capable 
     unborn children, and for other purposes.

  The PRESIDING OFFICER. Under the previous order, the time until 11 
a.m. will be equally divided between the leaders or their designees.
  The assistant Democratic leader.
  Mr. DURBIN. Mr. President, I would like to address the issue before 
the Senate. It relates to the divisive and controversial issue of 
abortion. It comes at an unusual moment in the history of the Congress.
  This week, for the first time, the Pope will be addressing a joint 
session of Congress. It was 50 years ago when the first Pope visited 
the United States. The arrival of Pope Francis this week is a cause of 
great celebration to people from my State of Illinois and across this 
Nation because of their respect for his leadership of the Catholic 
Church. It calls to question, of course, the relationship between 
religion and our government.
  This summer I finished a book called ``Mayflower,'' which told the 
story of the Pilgrims coming to the United States, settling in in our 
country, looking for a new opportunity but looking more than anything 
for freedom of religious belief. They were followed by scores and 
thousands of others who came for the same reason.
  My mother was an immigrant to this country, brought here at the age 
of 2. Her mother brought her and her sister and brother to our shores 
for a variety of reasons. But there is one thing that sticks out in 
that journey. Up in my office I have something that my grandmother 
carried across the ocean from Lithuania to the United States. It was a 
Roman Catholic prayer book written in Lithuanian. It was contraband in 
1911 in Lithuania for her to possess it because the Russians were in 
control and the Russians were imposing the orthodox religion and making 
it difficult to practice the Catholic religion. I never knew my 
grandmother, but she was one brave lady to bring three kids across the 
ocean and stick in her bag that prayer book which meant so much to her, 
that prayer book which she could use in the United States of America 
without the government telling her she could not.
  We have tried to strike the right balance between religion and our 
democracy from the beginning. I believe our Founding Fathers got it 
right. They said three things in the Constitution about religion: 
first, that each of us would have the freedom to worship as we choose 
or to choose not to worship; second, that the government would not 
choose a religion and that we would not have an official government 
religion; and third, that there would be no religious test for public 
office in America.
  I thought those were settled principles, but this Presidential 
campaign suggests otherwise. We had the outrageous suggestion by a 
Republican Presidential candidate this last weekend that a Muslim 
should never serve as President of the United States. I would think 
that a man of his background and learning would at least take the time 
to understand our Constitution and the express provision which says 
that he is wrong, that there will never by a religious litmus test to 
serve in public office in the United States.

[[Page S6861]]

  And now, this week on the floor of the Senate, we will have two votes 
on the issue of abortion. There was a time when this issue came before 
us frequently--not so much lately. It is a divisive and controversial 
issue; that is for sure. But this week the Republican Senate leadership 
has allowed two of their Presidential candidates to raise this issue on 
the floor of the Senate. It is no coincidence this issue comes before 
us the same week the Pope, the leader of the Catholic Church, will be 
addressing a joint session of Congress. It is more than a coincidence.
  This particular bill relates to when a person can terminate a 
pregnancy. For 47 years, if I am not mistaken--maybe I have that 
calculation slightly wrong--we have had Supreme Court guidance on when 
the government can play a role in the decision about the termination of 
a pregnancy. Now there is an effort on the floor of the Senate to 
change that basic guidance from the Roe v. Wade decision. Each time we 
step into this question, into something which seems as clear as ``at 20 
weeks we will draw a line and after that there cannot be a legal 
termination of pregnancy,'' we find we are walking into an area of 
uncertainty.
  I remember meeting many years ago, when we were debating this issue, 
a woman from Illinois. She was from the town of Naperville. In 1996 she 
told me a harrowing story of how legislation such as the bill before us 
would have impacted her. She learned late in her pregnancy that the 
child she was carrying could not survive outside the womb. Her doctors 
diagnosed her baby with at least nine major anomalies, including a 
fluid-filled cranium with no brain tissue. Sadly, she also had 
underlying medical conditions--personal conditions--that complicated 
her pregnancy even more. Doctors were concerned that if she went 
through with the pregnancy at that point, she ran the risk of never 
having another baby. With tears in her eyes, she told me how she and 
her husband agonized over the news and eventually decided it was best 
for them and their other children to terminate that pregnancy.
  If the bill before us today--the 20-week abortion bill--had been the 
law of the land back then, sadly it would have jeopardized and 
endangered her health.
  Well, 18 years later she came back to see me. I learned she was able 
to do what was best for her family in terminating that pregnancy. That 
was her decision with her doctor and her husband. But she was given a 
second chance. Soon after, she became pregnant again. This time she was 
thankful to give birth to a healthy baby boy. When she came to see me, 
she told me about her son Nick. She said he had become a star football 
player and had a bright future ahead of him.
  If this bill had been the law of the land, this woman in Illinois--
and others like her--would not even have had the choice to terminate a 
pregnancy for her own health protection and for the opportunity to have 
another baby. That is the challenge we face when we try to spell out in 
law all of the medical possibilities, limiting opportunities and 
decisions to be made by individuals under the most heartbreaking 
circumstances.
  This bill has other issues. The fact that the rape and incest 
exceptions, which have largely been built into the law to this point, 
would be changed dramatically by this law raises questions as well. 
There is a requirement, as I understand it, in this law that victims of 
incest would have had to report to a law enforcement agency that crime 
of incest before they would even be able to terminate a pregnancy under 
these circumstances. That is not even realistic--to think some young 
child in a household, who has been exploited by another member of the 
family, would think to go to a law enforcement agency and report that 
other member of her family before they could qualify to terminate a 
pregnancy in this circumstance.
  That shows the extremes this bill goes to. I hope we will defeat this 
measure. I sincerely hope the other Republican Presidential candidate, 
who is going to try to shut down the government over the funding of 
Planned Parenthood later in the week, does not prevail either. We need 
to move on to find other issues--not divisive issues but issues we can 
build a bipartisan consensus on to make this a stronger country.
  We need to address the issue of funding our government and to accept 
the responsibilities to move forward in a bipartisan fashion. This bill 
does not do that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, before we vote on whether to proceed to 
H.R. 36, I want to respond to a couple of arguments made by a 
Democratic Senator yesterday.
  First, that Democratic Senator quoted Hal Lawrence of the American 
Congress of Obstetricians and Gynecologists for the proposition that a 
20-week fetus is not viable. The American Congress of Obstetricians and 
Gynecologists, the group Dr. Lawrence represents, has long opposed this 
legislation.
  According to the Senator I am confronting on this issue, Dr. Lawrence 
said the following on May 13, 2015:

       In no way, shape or form is a 20-week fetus viable. There 
     is no evidence anywhere of a 20-week fetus surviving, even 
     with intensive medical care.

  But as explained by the Washington Post Fact Checker of May 26 of 
this year, Dr. Lawrence's statement is simply incorrect when applied to 
H.R. 36. The bill uses a method of calculating fetal age that is based 
on the day that fertilization actually occurred. The legislation would 
protect the unborn beginning at 20 weeks after fertilization, which is 
the same as 22 weeks of pregnancy, also known as 22-week gestational 
age. Gestational age is a measure of calculating the unborn baby's age 
that relies on the date of the mother's last normal menstrual period.
  It is well established that babies can survive at 22-week gestational 
age. As noted in the Washington Post, for example: ``That babies can 
survive at 22 weeks gestational age has been known for 15 years.''
  Perhaps Dr. Lawrence was confused about what H.R. 36 would 
accomplish. The Washington Post Fact Checker article sets the record 
straight.
  Second, the Senator I am referring to said earlier that abortions 
past 20-week fetal age are extraordinarily rare. Some jurisdictions 
with the most lax abortion policies don't even collect data on the 
stage of pregnancy when an abortion is performed, while other 
jurisdictions may have reporting requirements but are not really 
enforcing those reporting requirements. Because data on late-term 
abortions is not widely available, it is hard to know what hard 
evidence really exists to support the claim. We do know that several 
hundred doctors, and well over 200 facilities across the United States, 
offer abortions after 20 weeks of fetal age.
  Mr. President, I ask unanimous consent to have printed in the Record 
the Washington Post article I earlier referred to.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, May 26, 2015]

  Setting the Record Straight on Measuring Fetal Age and the `20-Week 
                               Abortion'

                        (By Michelle Ye Hee Lee)

       ``In no way, shape or form is a 20-week fetus viable. 
     There's no evidence of a 20-week fetus surviving, even with 
     intensive medical care.''--American Congress of Obstetricians 
     and Gynecologists Executive Vice President Hal Lawrence, 
     quoted in a news article, May 13, 2015
       Several readers requested The Fact Checker to examine 
     claims related to the Pain Capable Unborn Child Protection 
     Act, recently passed by the House. This bill is commonly 
     referred to as the ``20-week abortion ban.''
       The abortion debate is fraught with rhetoric that cannot be 
     easily fact-checked. But a reader pointed us to the quote 
     above and asked whether a new study on the viability of 22-
     week fetuses can be applied to 20-week fetuses, when using a 
     different method to count gestational age. To add to the 
     confusion, states vary in their definitions for gestational 
     age. The quote above is one example of several instances in 
     recent media coverage that related to definitions of 
     gestational age.
       This is a technical, but important, part of the bill. The 
     little-known difference between two methods of counting 
     gestational age is contributing to inconsistent media 
     coverage, and could mislead the public, parents and providers 
     about the bill's provisions.
       So what exactly is going on?


                               The Facts

       The Pain Capable Unborn Child Protection Act bans late-term 
     abortions after the midpoint of a woman's pregnancy, and 
     before the fetus typically is considered viable to live 
     outside of the womb. The age of viability has

[[Page S6862]]

     been pegged at 24 to 28 weeks. Proponents argue an abortion 
     ban at younger than 24 weeks, saying fetuses can feel pain 
     before then--a claim based in complex science and disputed by 
     the Royal College of Obstetricians and Gynaecologists. 
     (Supporters point to various studies related to fetal 
     development, compiled here.)
       A new study published in the New England Journal of 
     Medicine on May 7 examined how hospitals differ in whether 
     and how they treat extremely premature babies, starting at 22 
     weeks. Proponents of the bill say this study, funded by the 
     National Institutes of Health, shows that the babies who 
     would be saved through the 20-week abortion ban could now be 
     considered viable. Some media reports also echoed the same 
     conclusions.
       Sound confusing? The distinction is this: The bill defines 
     the age of the fetus as ``post-fertilization age,'' 
     calculated from the moment of conception. This is different 
     from the widely-accepted definition used by medical 
     professionals and the Centers for Disease Control and 
     Prevention, counting the fetus age from the first day of the 
     pregnant woman's last menstrual period (``LMP'').
       Fertilization typically happens about two weeks after the 
     first day of LMP. The idea is that it is difficult to know 
     exactly when you became pregnant, but you know when you 
     started your last period. That is why the bill's supporters 
     say the 20-week age measured from fertilization essentially 
     is the LMP-measured age of 22 weeks.
       The bill's definition is a more technical and accurate 
     measure, said Michael Woeste, House Judiciary Committee 
     spokesman. He noted an excerpt in The Developing Human: 
     Clinically Oriented Embryology, arguing that the LMP method 
     is error prone partly because ``it depends on the mother's 
     memory of an event that occurred several weeks before she 
     realized she was pregnant'' and that ``the day fertilization 
     occurs is the most accurate reference point for estimating 
     age.''
       Lawrence's quote at the top of this fact check comes from a 
     statement during a recent media call. (The American Congress 
     of Obstetricians and Gynecologists, or ACOG, opposed the 
     bill.) He was referring to the 20-week LMP age, not the 20-
     week post-fertilization age.
       The rest of his statement during the call explains his 
     point further and how it ties in with the legislation (and 
     also wrote an op-ed about it in Time):
       ``Now, I'd like to talk a bit about why supporters of a 20-
     week abortion ban are, quite simply, wrong. There is no 
     medical milestone associated with 20 weeks. Gestation is a 
     gradual process, and it can vary depending on the 
     circumstances, such as the woman's health.
       ``But still, even accounting for this, the 20-week mark is 
     just not notable from a fetal development standpoint. More 
     than 40 years ago, the Supreme Court stipulated that abortion 
     is legal until a fetus is viable. Well, in no way, shape or 
     form is a 20-week fetus viable. There is no evidence anywhere 
     of a 20-week fetus surviving, even with intensive medical 
     care.
       ``Unfortunately, some advocates of abortion bans are 
     pointing to a new study, just published last week, that they 
     claim heralds 22 weeks as being the new point of viability. 
     They suggest that we might someday reach viability at 20 
     weeks. It is essential that we address that now, before this 
     becomes another myth about abortion that is accepted as 
     reality.''
       We spoke with the main authors of the study, Matthew Rysavy 
     and Dr. Edward Bell of University of Iowa. They collected 
     data for nearly 5,000 infants born between 22 and 27 weeks of 
     gestation (using LMP method) and did not have abnormalities 
     at birth. These babies are extremely pre-term, as full term 
     is considered at 39 to 40 weeks, according to ACOG 
     guidelines.
       Researchers found that 22 percent of the babies born at 22 
     weeks received active treatment, and hospitals varied in 
     their whether and how they gave treatment to babies born 
     between 22 and 27 weeks. There were 78 babies born at 22 
     weeks who received aggressive treatment. Among them, 18 of 
     them survived (23 percent) to toddler age. Seven (9 percent) 
     of them did not have severe or moderate impairment by the 
     time they were toddlers.
       That babies can survive at 22 weeks is not a new finding; 
     it has been known for 15 years, Rysavy said. The point of the 
     study was to highlight differences in practices and outcomes 
     between hospitals, he said. Many factors, including 
     gestational age, influence how well a baby does: ``Our paper 
     wasn't exactly intended for identifying which infants would 
     do well.''
       The Fact Checker asked if, using the ``post-fertilization'' 
     age definition in the bill, their findings can carry over to 
     babies at 20 weeks old from the point of conception. Bell and 
     Rysavy said that would be ``terribly confusing'' to the 
     public, pregnant women and even to politicians. Bell said the 
     LMP method is used around the world, and that the time of 
     conception accurately cannot be ascertained.
       ``You cannot redefine gestational age based on conception. 
     . . . The new terms are politician terms. They have no 
     relevance at all to medicine or biology. They're just going 
     to confuse everybody,'' Bell said. ``They have the right to 
     do that for the purpose of making laws, but to me, it just 
     looks like an attempt to obfuscate and create confusion. We 
     already have a well-established definition of the length of 
     pregnancy that has worked just fine, for generations, has 
     been used forever.''
       Rysavy also sent us this diagram, of the American Academy 
     of Pediatrics' terminology for age during the perinatal 
     period:
       ACOG recommends using LMP and updating the due date with 
     other measures, such as ultrasounds, since women may have 
     irregular cycles and there is variability in how long a 
     fertilized egg becomes implanted in the uterus (thus 
     beginning pregnancy). Lawrence, in a statement, said: ``The 
     fact that federal legislation is basing restrictions on 
     reproductive care based on a non-medical calculation of 
     pregnancy is evidence of what happens when lawmakers try to 
     legislate women's health.''


                            The Bottom Line

       New research confirmed that 22-week fetuses, measured from 
     the first day of the pregnant woman's last menstrual cycle, 
     can survive. Babies born before that age did not survive. So, 
     Lawrence is correct that 20-week fetuses, measured from the 
     first day of the pregnant woman's last menstrual cycle, are 
     not viable. He is incorrect when using the definition in the 
     Pain Capable Unborn Child Protection Act.
       The Fact Checker takes no stance on which definition should 
     be used. However, we want to set the record straight for the 
     public and the media. This is a technical point over how 
     gestational age is calculated. But it is important, as it has 
     contributed to some misleading headlines, lack of context in 
     news coverage and general confusion in the public debate. It 
     also has contributed to the rhetoric on both sides; the 
     difference between the two definitions has not been clear in 
     much of the news reporting.
       In many way, the debate is similar to how budget figures 
     can vary dramatically depending on the baseline that is used. 
     Reporters need to specify exactly what method of measuring 
     the pregnancy is being used, as the difference is not 
     trivial.

  Mr. GRASSLEY. I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I am opposed to late-term abortions and 
would support legislation to ban them except in unusual circumstances. 
A carefully drawn, short list of exceptions to apply in those rare 
cases should have been included in this bill. Regrettably, the bill 
before us provides no exception for when the physical health of the 
mother is at risk of serious harm, the most glaring deficiency in this 
legislation.
  Let me give just three examples of devastating conditions that could 
threaten the physical health of a pregnant woman. An extremely serious 
condition triggered by pregnancy in some women is preeclampsia, which 
tends to develop after the 20th week of pregnancy. This condition can 
lead to serious, long-term health consequences for a woman, including 
liver and kidney problems, vision disturbances, seizures and strokes.
  Another example would be a woman diagnosed with cancer who requires 
chemotherapy and radiation but cannot be treated while pregnant. A 
massive infection, such as severe sepsis, is yet another case of a 
grave illness that could cause grievous harm for a pregnant woman and 
to her physical health.
  Almost every country in Europe that limits late-term abortions allows 
for exceptions for the physical health of the mother. Like these 
European countries, States such as Alabama, Arkansas, Indiana, 
Louisiana, Mississippi, and others that ban late-term abortions provide 
an exception for the health as well as the life of the woman. But the 
bill before us does not.
  I have advocated that we add language that would provide an exception 
when the woman is at serious risk of grievous injury to her physical 
health. This is an appropriately high standard to meet, but one that 
would allow a woman to terminate her pregnancy when the alternative is 
serious harm to her physical health.
  Under this bill, a doctor who performs such an abortion after 20 
weeks to prevent grievous physical injury to the pregnant woman would 
be subject to criminal penalties of up to 5 years in prison.
  Do we really want to make a criminal out of a physician who is trying 
to prevent a woman with preeclampsia from suffering damage to her 
kidneys or liver or having a stroke or seizures? Do we want the threat 
of prison for a doctor who knows that his pregnant patient needs 
chemotherapy or radiation treatments? If a woman has the terrible 
misfortune to have a serious infection of amniotic fluid that threatens 
her physical health and her ability to have children in the future, do 
we want her doctor to be unable to perform an abortion because he faces 
the prospect of years in prison if he terminates her pregnancy?

[[Page S6863]]

  The way the rape and incest exceptions to this bill are drafted is 
also problematic. I do not question the good motives of the sponsors of 
this bill, as I share their goal of prohibiting late-term abortions. My 
point, however, is that all of these language problems could be solved, 
and then we might well be able to enact a law that would accomplish the 
goal of ending late-term abortions except in those unusual cases where 
an exception is warranted. Therefore, I shall cast my vote in 
opposition to this well-meaning but flawed bill.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. SCOTT. Mr. President, I am a proud pro-life Senator, and I stand 
on the floor of the Senate today with a gnawing feeling in the pit of 
my stomach. It is a feeling that comes with the knowledge that over the 
past 40 years more than 50 million Americans have not had the chance to 
have their feet touch the soil of our country. That is why I am 
thankful for the opportunity we have this week here in the Senate--an 
opportunity to celebrate life and to protect life, God's most amazing 
gift of all.
  I am proud to have joined my colleague and senior Senator from my 
State, Lindsey Graham, in introducing this version of the pain-capable 
legislation in the Senate.
  The studies are very, very clear that this legislation can save more 
than 18,000 lives each and every year. That is right, 18,000 lives each 
and every year. We aren't talking about anything other than the results 
of sound science. And because of that sound science, we know that at 
approximately 5 months babies can feel pain. We know that if a baby 
were to need prenatal surgery at that age, they would be given 
anesthesia. Why? Because that little life--that little life--feels 
pain.
  Yesterday, Senator Blunt gave name after name after name of babies 
born around 5 months who have gone on to live healthy and full lives. 
This is not about pro-choice or pro-life. It is simply about protecting 
ten fingers, ten toes, and one beating heart, and bringing the amazing 
gift of life.
  In our world, out of nearly 200 nations, only seven allow abortions 
on demand after 20 weeks--only seven out of 200 nations. Who is among 
the seven nations? China, North Korea, Vietnam, and the United States. 
Really?
  So while I may stand here today with a gnawing in my stomach, I also 
stand with hope--hope that we can take a massive step forward in 
protecting life--18,000 lives a year--by passing this important 
legislation.
  America is truly a great nation. So let's improve our reputation and 
not lower our expectations because, as John Winthrop said nearly 400 
years ago, ``We shall be as a city upon a hill, the eyes of all people 
are upon us.''
  Mr. President, I ask unanimous consent that all time spent in a 
quorum call before the 11 a.m. vote be equally charged to each side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCOTT. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, we are about a week away from the deadline 
to keep the Federal Government open. Our National Highway System, which 
at one time was a matter of great pride, will soon run out of money. 
The nominations of 16 consensus judicial nominees that came out of 
committee with bipartisan support are languishing on the Senate floor. 
We're not allowed to have a vote on the Senate floor about them even 
though, in many cases, they are courts with judicial emergencies. There 
is still strong support in the Senate for passing meaningful 
immigration reform as we did 2 years ago by a 2-to-1 margin, 
Republicans and Democrats. Now, those are just a few of the pressing 
issues that the Senate should have been working on this month. Instead, 
the Senate Republican leadership has wasted 2 weeks on political show 
votes. And with a government shutdown looming, Senate Republicans plan 
to use this week to continue their relentless attack on women's health 
care.
  Republicans brought us to this brink just 2 years ago, and, once 
again, they are trying to use Americans' access to health care as 
leverage in a fight over funding the Federal Government. This time, 
though, Republicans also seem intent on holding hostage the 
constitutional rights of women as part of this political exercise. 
Frankly, what I hear when I go home is the American people, including 
women across this country, have had enough.
  It is incredible to me that, in 2015, we are debating Federal funding 
for one of the Nation's largest and most trusted providers of basic 
health care. For nearly 100 years, Planned Parenthood has provided 
women's health care and has enjoyed the leadership and support of great 
Americans like the civil rights leader, Rosa Parks, who was a member of 
the organization's board of advocates.
  Over 90 percent of the services Planned Parenthood provides are 
preventative, including annual health exams, cervical and breast cancer 
screenings, and HIV screenings for millions of American women, men, and 
young people. It is these preventive services and only these preventive 
services that are paid for with Federal funds.
  Republicans are focused on abortion services that are not paid for 
with Federal dollars and are otherwise only a very small part of what 
Planned Parenthood does. Republicans say it is because of recently 
released videos that purport to show wrongdoing on the part of Planned 
Parenthood. But these surreptitiously recorded videos were heavily 
edited in a misleading way and generated by an organization formed with 
an agenda to end safe and legal abortion in our country.
  In reality, this partisan debate is nothing more than an opportunity 
for Senate Republicans to wage their personal opposition to a woman's 
decision to access safe and legal abortions in this country. They are 
entitled to their own beliefs. But missing from these arguments are the 
stories of women across this country whose health and lives are at 
stake when politicians play doctor and tell women they cannot make 
their own health care decisions. That is exactly the situation we face 
with the bill the Senate will vote on today, which puts women's health 
at risk by imposing a nationwide ban on abortions at 20 weeks or more 
and criminalizing the doctors who care for them.
  The bill before us is as unconstitutional as it is extreme. Federal 
courts have repeatedly struck down similar State 20-week bans as 
unconstitutional. Just last year, the U.S. Supreme Court refused to 
review a Ninth Circuit Court of Appeals decision permanently blocking 
Arizona's 20-week-ban law. And this bill makes no exception where the 
health of the woman is at risk. The exceptions it does include are 
severely limited. It is only if a woman's health has deteriorated to 
the point at which she might die is she allowed to have an abortion 
under the bill's exception for a woman's life.
  The bill's so-called rape exception is, in reality, an overwhelming 
bureaucracy requiring survivors to jump through hoop after hoop, such 
as filing police reports or going to mandatory counseling. We should 
not be forcing these survivors to relive their trauma again and again 
before they can access abortion services. How many incest victims do 
you think are going to be able to do that, going through all these 
bureaucratic hoops? Doctors providing safe abortion care who fail to 
comply with all of the bill's requirements would face up to 5 years of 
jail time.
  Now, it has all these dangerous provisions, but you know what is even 
more shocking? This bill has had no committee process in the Senate. 
There have been no Senate hearings on this bill, not one single 
Republican chairman of any committee in the Senate has held a hearing. 
There has been no debate in the Judiciary Committee. We've not had a 
chance to hear from women and doctors about the care this bill would 
criminalize. I know last Congress, the current majority leader, who is 
a friend of mine, repeatedly urged the Senate to follow ``regular 
order'' on all legislation. On this bill, there was no regular order. 
It was brought straight to the floor. This is not a political point; it 
is about what process in this body represents. It gives Senators the 
opportunity to grapple with

[[Page S6864]]

the real impact of legislation like this. That is what was lost here.
  In Vermont, I witnessed the devastating effect of restricting women's 
access to safe and legal abortion. I say this, Mr. President, because I 
am the only Member of the U.S. Senate who has ever prosecuted somebody 
in an abortion case. When I was a young prosecutor in Vermont, I was 
called to a hospital to see a young woman who nearly died from 
hemorrhaging caused by a botched abortion. She was unable to obtain a 
safe abortion in my state because it was illegal. I prosecuted the man 
who had arranged for her unsafe and illegal abortion that nearly killed 
her.
  Don't talk about hypotheticals. I saw the tragic impact that the lack 
of safe legal abortion care had on women and families in my state, and 
so I talked to doctors about challenging Vermont's law. In that case, 
Beecham v. Leahy, the conservative Vermont Supreme Court called out the 
hypocrisy of a statute whose stated purpose was to protect women's 
health, rightly asking, ``Where is that concern for the health of the 
pregnant woman when she is denied the advice and assistance of her 
doctor?'' One year before Roe v. Wade, the Vermont Supreme Court, all 
members of it were Republicans, ruled that protecting women's health 
required access to safe and legal abortion services, ensuring that 
women in our state would no longer be subjected to back alley 
abortions. We should not forget that this history was once reality for 
so many women in our Nation. That is why I supported our Vermont 
Supreme Court's decision that we should not deny women's health by 
denying access to safe and legal abortion services.
  As we consider the bill before us today, we should also remember what 
Beecham v. Leahy and, a year later, when Roe made clear which should be 
crystal clear for all of us here today in 2015, abortion is an 
extremely difficult and personal choice. And if we truly want to reduce 
abortions--as I do, and I suspect most of us do, maybe all of us do--we 
should be making sure that family planning services are universally 
available. We should support organizations like Planned Parenthood that 
can provide family planning services, especially in rural areas and 
elsewhere where they might not be available, because that, in itself, 
will lower the number of abortions.
  I oppose the bill pending before us. I hope that Senators on both 
sides of the aisle will do the same. And this Senate, which I love, 
ought to turn away from show votes and start leading responsibly so 
that we can avoid yet another government shutdown with billions upon 
billions of dollars that would be wasted.
  Now, some want a shutdown because they think it might help their 
campaigns or their press availability. None of them are going to tell 
the press when they have that shutdown how many billions of dollars of 
taxpayers' money they waste by doing it. So let us remember again, the 
Vermont Supreme Court, at that time a very conservative Supreme Court, 
in the case of Beecham v. Leahy, when they called out the hypocrisy of 
a statute whose stated purpose was to protect women's health, said, 
``Where is that concern for the health of the pregnant woman when she's 
denied the advice and assistance of her doctor?''
  Let's stop the show voting; let's stop playing for whatever group we 
want to raise money from for a campaign or for the Presidency by 
forcing a shutdown. And let's think about the taxpayers of this country 
which are going to try to force a shutdown, then let's put a dollar 
figure on it and say how much the grandstanding cost. It will cost into 
the billions and billions of dollars and makes this great nation look 
foolish around the world.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Cloture Motion

  The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before 
the Senate the pending cloture motion, which the clerk will state.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to Calendar No. 230, H.R. 36, to amend title 18, 
     United States Code, to protect pain-capable unborn children, 
     and for other purposes.
         Mitch McConnell, Joni Ernst, Mike Lee, Mike Rounds, Chuck 
           Grassley, Tim Scott, Patrick J. Toomey, John Boozman, 
           David Perdue, Johnny Isakson, James M. Inhofe, James E. 
           Risch, Steve Daines, Roy Blunt, Roger F. Wicker, John 
           Thune, James Lankford.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to H.R. 36, an act to amend title 18, United States 
Code, to protect pain-capable unborn children, and for other purposes, 
shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Alaska (Ms. Murkowski).
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Washington (Mrs. Murray), and the Senator from 
Virginia (Mr. Warner) are necessarily absent.
  The yeas and nays resulted--yeas 54, nays 42, as follows:

                      [Rollcall Vote No. 268 Leg.]

                                YEAS--54

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Casey
     Cassidy
     Coats
     Cochran
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Donnelly
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Lankford
     Lee
     Manchin
     McCain
     McConnell
     Moran
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Sessions
     Shelby
     Sullivan
     Thune
     Tillis
     Toomey
     Vitter
     Wicker

                                NAYS--42

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Collins
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Heinrich
     Heitkamp
     Hirono
     Kaine
     King
     Kirk
     Klobuchar
     Leahy
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murphy
     Nelson
     Peters
     Reed
     Reid
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Warren
     Whitehouse
     Wyden

                             NOT VOTING--4

     Boxer
     Murkowski
     Murray
     Warner
  The PRESIDING OFFICER (Mr. Flake). On this vote, the yeas are 54, the 
nays are 42.
  Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is not agreed to.


                            Vote Explanation

 Mr. WARNER. Mr. President, today the Senate voted on the Pain-
Capable Unborn Child Protection Act, H.R. 36. While I was unable to 
vote today, I would have opposed this bill, which would have amended 
the Criminal Code to prohibit any person from performing an abortion 
after 20 weeks. As the father of three daughters, I believe that a 
woman's health, not politicians in Washington, should drive important 
medical decisions. It is critical that we as a nation continue to have 
a meaningful and respectful dialogue about an issue we all care about 
deeply, and I do not believe that this bill would have advanced that 
dialogue.
  The PRESIDING OFFICER. The majority leader.

                          ____________________