[Congressional Record Volume 167, Number 170 (Wednesday, September 29, 2021)]
[Senate]
[Pages S6760-S6762]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Abortion
Mr. CORNYN. Mr. President, this morning, the Senate Judiciary
Committee had a hearing to discuss two of our Democratic colleagues'
biggest headaches: the Supreme Court of the United States and State
laws that protect the right to life.
This wasn't the first time we have seen an attack on both waged by
Members of the Senate. Last year, the majority leader, Senator Schumer,
walked across the street to the Supreme Court and threatened two
Supreme Court Justices by name based on an abortion case that they were
considering.
Sadly, it seems that our Democratic colleagues have simply given up
when it comes to protecting innocent life. In 2020, February 2020, the
Senate voted on a bill that would outlaw elective abortions after 20
weeks, when science tells us that a fetus can actually feel pain. Had
this bill become law, it would have put U.S. domestic policy in line
with that of most of the rest of the world.
Unfortunately, we happen to be in a small category, including North
Korea and communist China, when it comes to the ability to get an
abortion well into the period of gestation, including up to late-term
abortions. As it stands today, the United States is currently one of
only seven countries to allow elective abortions after 20 weeks. As I
said, those seven countries include the Communist Party China and North
Korea. But our Democratic colleagues filibustered that bill too.
Then came one more opportunity to protect the most vulnerable among
us. The Senate voted on legislation requiring doctors to provide
lifesaving care to infants who survive abortions, just like any other
newborn child would receive. That sounds like common sense, right?
Well, if you ask the American people, they say yes. More than three-
quarters of the American people, when it comes to polling, said they
support providing medical treatment for babies who survive abortions.
But there are no Federal laws requiring healthcare providers to care
for these children just as they would any other infant in their care.
And, yes, you guessed it--Democrats blocked that bill too.
The attack on innocent life has been years in the making, but we have
never seen anything quite like the latest endeavor that has come from
the House of Representatives. The so-called Women's Health Protection
Act is actually ``Nancy Pelosi's Abortion Protection Act.''
This isn't just about messaging. The Senate version of the bill is
cosponsored by all but two of our Democratic colleagues. Clearly, the
provisions included in this bill don't represent the beliefs of just
some small subset of the Democratic Party. Apparently, it is mainstream
within the Democratic Party.
But it is clear that this is a no-holds-barred attack on the right to
life. One of the most outrageous and unprecedented aspects of the bill
is it limits State laws limiting abortion even after viability. This
goes far beyond where the Supreme Court went in Roe v. Wade. It also
undermines another landmark abortion case, Planned Parenthood v. Casey.
In Casey, the Supreme Court abandoned the trimester framework of Roe,
replacing it with a viability standard to determine a State law's
constitutionality. Even the author of Roe v. Wade and of Casey agreed
that this viability standard was largely arbitrary. But this decision
came in 1992, when a baby was considered viable after 23 or 24 weeks.
But the marvels of modern medicine continue to challenge this estimate.
Last June, a baby was born at 21 weeks and 2 days, and this past
summer, he celebrated his first birthday.
The extreme legislation attacking the right to life coming out of the
House and now embraced by Senate Democrats would undercut the Supreme
Court's ruling in Casey v. Planned Parenthood and would invalidate
State laws that limit abortions after 20 weeks, which is now the
consensus period of viability.
A number of States have passed laws to restrict access for different
gestational periods--for example, in Massachusetts and Nevada, for
example, abortions are restricted after 24 weeks. In California,
Washington, and Illinois--they are among the many States that restrict
abortions after viability. But the Democratic proposal is so extreme,
it would invalidate the laws passed in each of these blue States.
If this proposal, the Pelosi abortion bill, became law, it would
allow healthcare providers to perform abortions at any point so long as
it is done to preserve the mother's health. This actually undermines
the decision of the Supreme Court of the United States that said it is
constitutional to limit so-called partial birth abortions as a barbaric
practice that does not have constitutional protection.
But the provision that would allow abortion at any point in the
pregnancy so long as it is done to preserve the mother's health--that
doesn't mean the pregnancy actually threatens the life of the mother.
Let's be clear on that point. If a single healthcare provider
determines that the birth of the baby would impact on the mother's
mental health, an abortion would be legal at any point in the pregnancy
up to birth.
This is way out of step with where most Americans are. A poll this
last summer found that 65 percent of Americans believe that abortion
should be illegal during the second trimester, the second 3-month
period of pregnancy. An abortion opposition, I should say, to a third-
trimester abortion is even stronger. These are the so-called late-term
abortions where the fetus is fully formed and even viable outside of
the mother's womb. Eighty percent of Americans oppose third-trimester
abortions but not Pelosi's abortion act, embraced by all but two of the
Democrats here in the U.S. Senate.
The American people clearly do not want abortion laws that put us in
the same league as China and North Korea--two of the world's most
aggressive human rights abusers. Until 2016, China had a strict one-
child policy. Families who didn't comply with that policy could be
fined, lose their jobs, and the baby would even be the subject of a
forced abortion. And it became common in China, as a result of this
limitation on pregnancy, for families to prefer a son and undergo
gender-selection abortions. If you are pregnant with a female child,
well, abortion is fair game because they preferred to use abortion as a
means to select the gender of their child.
Democrats' legislation doesn't simply remain silent on gender-
selective abortions; it goes so far as to prohibit States from
outlawing abortion as a method of gender selection. Not only that, it
undermines State efforts to protect unborn babies with disabilities or
Down syndrome. Unborn children being killed solely on gender or
disabilities is a devastating problem in other countries. We cannot
allow such a grotesque practice to become mainstream here in the United
States. We are better than that.
The list of atrocities included in this legislation is a long one. It
requires healthcare providers who hold deep religious objections to
abortion to violate their own deeply held religious beliefs and kill
unborn babies. It invalidates informed consent laws, which require
healthcare providers to share accurate information with their patient
about the baby and whether specifically the child can feel pain. It
gives the Attorney General of the United States sweeping authority to
block State laws that try to protect innocent human life. So this
radical proposal from the House, now embraced by all but two of our
Senate Democrats, would overturn existing State laws and allow
abortions on a scale our country has never seen before.
I think it is a sad commentary on the conscience of America when all
but a handful of our Democratic colleagues are fighting to implement
these radical policies. But we cannot and we will not stay silent at a
time when our most vulnerable are being attacked in such a manner. We
have a moral imperative to defend those who cannot defend themselves,
born or unborn, to protect those who cannot protect themselves. Babies
with heartbeats, fingerprints, taste buds--they deserve to have
protection of the law too. The Declaration
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of Independence, after all, says that we hold these truths to be self-
evident, that all are endowed by their Creator with certain unalienable
rights, including the right to life. I have always been proud to defend
that right, and at no time in my lifetime has it ever needed more
defense than right now in the face of these outrageous proposals.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, earlier today, as we just heard from my
colleague from Texas, the Judiciary Committee held a hearing on the
abortion ban that took effect in the State of Texas earlier this month.
I hope every American who tuned in to this hearing listened very
closely--very closely--because here is what we heard:
My Republican colleagues on the committee literally made no effort to
defend the Texas abortion law, the Texas abortion ban--SB 8, as it is
known in Texas--not a single effort to defend it on its merits. They
made no effort to engage on the issue of the shadow docket process
through which the Supreme Court allowed this bill to become law, and
they made no effort to argue that women's constitutional rights should
be protected.
What we witnessed during today's hearing was the opening salvo on the
fate and future of Roe v. Wade. Here are the facts:
This Texas law is no ordinary piece of legislation. To quote Supreme
Court Justice Sonia Sotomayor, it is ``a flagrantly unconstitutional
law engineered to prohibit women from exercising their constitutional
rights and evade judicial scrutiny.''
This law has effectively banned abortion after 6 weeks in the
Nation's second largest State, even in cases of rape and incest. The
fact is, many women do not even know they are pregnant by 6 weeks.
The architects behind SB 8 took an extreme proposal that clearly
violated Supreme Court precedent and paired it with a new, disturbing
private bounty hunter enforcement scheme, and they did so in the hope
that the courts would not block the law because it wasn't clear who
should be sued.
At midnight on September 1, the Supreme Court allowed SB 8 to go into
effect. As a result, millions of Texas women have had their
constitutional rights challenged and suspended.
This attack on women has already caused irreparable harm to countless
women who lost their right to reproductive care in Texas.
At today's hearing, we heard from Donna Howard, a State
representative from Texas. In her written testimony, she shared the
story of a woman who was denied the healthcare she was entitled to
under the Federal Constitution. The woman went in to an appointment on
August 31 of this year, and at the time, there was no heartbeat
detected on the State-mandated sonogram. But when she came back the
next day to have the procedure done, a cardiac motion was detected.
Representative Howard said of this woman that at only 5 weeks--5
weeks of pregnancy--she was too late to receive an abortion under the
provisions of this new law. She was devastated. She already had a child
at home and knew that bringing another child into their lives
threatened her family's situation and their financial security.
As Representative Howard went on to note, having an abortion was
``the right decision for this mother's life and her family's well-
being.''
But the Texas law went into effect, and the Supreme Court deprived
this woman of her constitutional right.
SB 8 marks a turning point in the decades-long campaign to undermine
the Supreme Court's holding in Roe v. Wade. For years, legislative
efforts to ban previability abortion have been stopped by courts. Until
now.
The legal architects behind this Texas law crafted a scheme to avoid
judicial review. They lifted the responsibility of enforcement from the
State and put it in the hands of private citizens. Listen to this: As a
result of this Texas law, they have turned ordinary citizens into
bounty hunters.
I want to clarify something. I have read it and asked the Texas State
representative to verify. It has been said that you can sue a person
who aids and abets an abortion in Texas and recover $10,000 costs and
attorney's fees. That is not what the law said. The law says you can
recover not less than $10,000 in costs and attorney's fees. The first
lawsuits have been filed already against doctors in these clinics, and
they are seeking damages in the amount of $100,000 or more.
You don't even have to live in Texas to receive this bounty. Consider
Dr. Alan Braid, the first person to be sued under this new Texas law.
Earlier this month, Dr. Braid, a practicing OB-GYN in San Antonio,
penned an op-ed in the Washington Post explaining why he is continuing
to provide abortions despite the law.
As someone who has worked in medicine since 1972, the year before Roe
v. Wade, Dr. Braid remembers a time when women could not safely access
abortion care. He believes he has a ``duty of care'' to his patients,
and he refuses to ``sit back and watch us return to 1972,'' in the
doctor's own words. Well, as I mentioned, he is already facing the
legal consequences of this new Texas law.
Who is exactly the bounty hunter who filed the first lawsuit against
him? You might guess it is a fellow Texan, right? You are wrong. It is
a disbarred lawyer who lives in Arkansas, a bounty hunter; $100,000 is
what he thinks this law is going to give him.
That lawsuit being filed against Dr. Braid illustrates how irregular
this Texas law's bounty hunter enforcement model really is. Anyone from
any State can file a lawsuit against any physician. But when we include
the categories of people who aid and abet the person receiving the
abortion, the categories go wide afield, from the people who gave her
advice, the folks who gave the transportation to the clinic, the
minister who counseled her--all of these things makes them eligible to
be sued for a minimum of $10,000 now in Texas.
There is a reason why the Texas legislators designed the law this
way. They sensed an opportunity on the Supreme Court. They knew an
emergency legal challenge to this Texas law had a good chance of coming
all the way to the Supreme Court. And they knew the Supreme Court has
shown a willingness to allow sweeping changes to the law to take place
on a short timetable without detailed explanation.
It was interesting to listen to the Republican Senators go into orbit
over the fact that we would raise questions about the shadow docket. It
is a motions docket where the Justices on the Supreme Court can decide
an issue on a very short timeframe without even explaining their
position.
That is exactly what happened with SB 8. When the law came before the
Supreme Court, a majority of Supreme Court Justices, late at night,
allowed it to take effect.
The next day, the Court issued a one-paragraph opinion to explain it.
It said they would not stay Texas's abortion ban because of the law's
``complex and novel'' procedural questions. In other words, the Texas
legislators got their way. By designing SB 8 with a new bounty hunter
enforcement model, Texas lawmakers managed to evade judicial review.
In her dissent, Justice Sotomayor explained how this scheme worked.
She said, ``The Court has rewarded the State's effort to delay federal
review of a plainly unconstitutional statute, enacted in disregard of
the Court's precedents, through procedural entanglements of the State's
own creation.''
The Court's ruling on SB 8 is distressing for a number of reasons.
For one, it has galvanized lawmakers across the country to undermine
constitutional rights in their States. Over the past month, lawmakers
and candidates in Arkansas, Florida, South Dakota, and other States
have pledged to follow suit and copycat the Texas law. They saw what
happened when this bill came before the Supreme Court. The Supreme
Court basically said it can go forward.
Additionally, the conservative majority on the Supreme Court has now
signaled that it is willing to use the shadow docket to allow even laws
unconstitutional on their face to take effect, as long as it aligns
with certain ideological norms.
Another witness we heard from today was Professor Steve Vladeck, an
expert in constitutional law who has written extensively about the
Court's shifting use of the shadow docket.
The shadow docket, of course, refers to situations where the Court
issues
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decisions outside the traditional merits docket. Historically, shadow
docket orders are used to help resolve routine or procedural questions
frequently without public deliberation, full briefings, or even signed
opinions.
But as Professor Vladeck testified, there has been a notable uptick
in the Supreme Court issuing shadow docket orders that are ``having a
far broader substantive impact, for better or worse, compared to [the]
emergency rulings in the past.'' And many of these shadow docket orders
appear to be driven by ideology.
Let me tell why I say that. Listen to these numbers. During the 4-
year Presidency of Donald Trump, the Supreme Court issued 28 grants of
emergency relief on the shadow docket at the request of the Trump
administration--28 grants of shadow docket relief out of 36 requests.
Each of these orders advanced President Trump's political agenda,
including one that allowed the resumption of Federal executions for the
first time and in nearly two decades.
Now, let's do a comparison. If there were 36 requests of the Supreme
Court for shadow docket opinions and 28 of them were granted in the 4
years of Donald Trump, how about previous Presidents? During the 16
years of the George W. Bush and Obama Presidencies, from 2001 to 2017,
the Supreme Court issued four--four--orders in 16 years. In this last
4-year period of time, they granted 28 out of 36 with the Trump Justice
Department.
With its handling of Texas's abortion ban, as well as other shadow
docket orders, the Supreme Court's conservative majority has indicated
a willingness to change substantive law in sweeping ways without due
deliberation and public reporting.
In doing so, they are undermining confidence in the Court, and the
conservative majority has opened the door for ideologically driven
legal schemes to rewrite laws from the shadows, like SB 8. This is a
five-alarm fire for due process, as well as our constitutional rights.
And as I expressed during this today's hearing, I hope every Member
of the Senate--Democrat or Republican--will join together to protect
and preserve independent, transparent, and reasoned judicial decision
making based on the rule of law.
At a time when the public's confidence in our governmental
institutions has been greatly eroded, we must restore it.
I yield the floor.
The PRESIDING OFFICER (Ms. Rosen). The Senator from Utah.