[Congressional Record (Bound Edition), Volume 149 (2003), Part 16]
[Senate]
[Pages 21965-21971]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          THE RIGHT TO CHOOSE

  Mrs. BOXER. Senator Hollings raises several issues that are so 
important to the Nation. This issue of media ownership getting out of 
control and the need to reverse what the FCC did and also the issue of 
the war, how badly it is going, how much it is costing, the danger our 
troops are in, the fact it is not internationalized and there is 
virtually no burden sharing going on--these are all issues that I hear 
about at home when I go to the grocery store or take a walk. People are 
anxious and concerned. These are the issues of the day.
  Therefore, it is rather stunning to me that given all this and the 
fact that the deficit has gone off the charts--we have seen the picture 
of what has happened to the deficit since Bill Clinton left office; it 
is a straight line up. I never saw anything like it in my life. We are 
getting to the point where we are bankrupting this country and laying 
all that bankruptcy on the backs of our kids, as Senator Hollings has 
said.
  With all of these issues pending, why am I here tonight speaking 
about an issue that was resolved in 1973, the right of a woman to 
choose--the fact that this Senate went on record supporting that right 
quite recently as part of S. 3, that very simple language that simply 
said Roe v. Wade has saved lives, stating it is the sense of the Senate 
that the decision of the Supreme Court in Roe v. Wade was appropriate 
and secures an important right and such decisions should not be 
overturned.
  That was language in S. 3 which also for the first time banned a 
medically recognized procedure. Senator Harkin and I and a majority of 
the Senate added this language.
  What happens with all of the problems we are facing and with our 
brave men and women in such jeopardy abroad, our taxpayers just getting 
squeezed, our education bill underfunded, the country going broke, the 
environment getting worse because every other day, and usually on 
Fridays, we see more rollbacks of environmental laws, the media getting 
bigger. We have to overturn that.
  With all of those issues, one would think the House of 
Representatives and the Republican leadership would have said: We want 
to get this bill to the President's desk. We want to ban this 
procedure. So let's just take this language. The decision of the 
Supreme Court in Roe was appropriate and secures an important right, 
and such decisions should not be overturned.
  Friends, that was not to be the case. Instead of sending this bill 
off to the President for his signature, which my colleagues have been 
wanting to do for a very long time, they say we need to strip out this 
very simple Roe language. In fact, that is what the House did.
  So before this bill can go to conference--and it is a technical 
matter, but in order for a bill to become law, when the bills are 
different, you have to have a conference to resolve the differences. 
When the bills are the same, the bill can go straight over to the 
President's desk.
  No, the House leaders, Republican leaders, I believe quite radically 
on this point of a woman's right to choose that was resolved in 1973, 
they strip this out. Now in order to go to conference, we will have a 
vote to disagree with what the House did. I hope we will disagree with 
what they did and take another stand for Roe. That is why we are here 
tonight.
  The reason the House will not go along with this, and many in our own 
Senate will not, the real agenda in all of these bills that attack a 
woman's right to choose--and there have been many, and I will go 
through them, including bills that hurt family planning--the real 
agenda is to overturn Roe. I believe that is what we are talking about. 
It may show up in a different form, such as banning one medical 
procedure, which is a horrible precedent, as we are going to do.
  It may show up by saying to a woman in the military: You will have to 
fly back to the United States on an ``as available'' basis and spend 
your own money--nothing to do with your own military pay--to get an 
abortion. We have said to Federal employees: You cannot use the health 
insurance that you pay a good part of to get a legal abortion, legal, 
not illegal, a legal abortion. Abortion is legal.
  My friends, some of them here do not like that. So there has been 
this huge attempt to narrow this right. So every time we get a chance, 
when we see these bills come forward that would narrow this right, that 
would potentially harm women, we offer the Harkin-Boxer amendment in 
favor of Roe. Even though we did not get as many votes as we would 
like, we got a majority, and that is what we are continuing to discuss.
  Now, what does Roe guarantee to women?
  In the decision of the Supreme Court, the Court found that a woman's 
reproductive decisions are a privacy right guaranteed by the 
Constitution. But I have to say that even though this right was granted 
to women, it was not an unbalanced decision. It was a very moderate 
decision. That is why, in my opinion, the majority of Americans support 
it.
  In the early stages of a pregnancy, the Government cannot intervene 
with a woman's right to choose. That is it, plain and simple. Guess 
what. We are not going to be big brother or sister, as the case may be. 
We are going to allow a woman, her doctor, and her God to make that 
decision.
  But in the later stages of pregnancy, Roe found that the Government 
can intervene, that it can regulate, that it can restrict abortion. We 
all support that. All of us support that. But there is one caveat--
always, always, always. Any law that a State may pass to restrict 
abortion rights has to have an exception to protect the life of the 
woman or to protect her health.
  This is important because, I have to tell you, before Roe, before 
1973--and I remember those years--life for women was very different. 
Before Roe, up to 1.2 million women each year resorted to dangerous 
illegal abortions. According to one estimate, at least 5,000 women a 
year died as a result of botched illegal abortions. Thousands of others 
nearly died, became infertile, or suffered other health complications.
  I have a few stories--I want to tell a couple of them--of life before 
Roe.
  Polly Bergen--we know her--an actress, went public with her story. 
She became pregnant when she was in her late teens and it was a 
disaster for her. As a result of an unsafe abortion, she had several 
miscarriages. At the age of 33, her doctor said, because of that 
botched abortion, she had to have a hysterectomy. She desperately 
wanted children. She had a hysterectomy.
  Lynn Kahn was 24. She was divorced with two young children when, in 
1964, she was raped by a stranger on her way home from work. Because 
she was so ashamed, she did not report the rape. But she soon found out 
she was pregnant. She scraped together $300 for an illegal abortion. 
She nearly died. She was hospitalized with a serious infection caused 
by a botched abortion.
  During her multiday hospital stay, she was absolutely terrified that 
the police would come and arrest her because the treating physician had 
told her he was going to inform them about the abortion. The police did 
not arrive, but the whole experience was so traumatic that Lynn was 
unable to talk about it for over 20 years.
  Mary Roper, a 19-year-old sophomore in college, was in an abusive 
relationship. She got pregnant, and the man she was dating encouraged 
her to get an abortion. She had been raised a Catholic and felt she 
could not be single mother in her community. She endured three attempts 
to end her pregnancy--one person used a coat hanger, and one a hose. 
During the time she

[[Page 21966]]

was seeking an abortion, she was questioned by the police about her 
intention. She finally found a doctor in Chicago, 3 hours away, to 
perform an abortion. She continued to have problems and a couple of 
months later needed her parents' written permission to receive a 
medically necessary abortion. She continues to have nightmares today.
  Elizabeth Furse, a former Representative from Oregon, was 25 in 1961, 
married and pregnant with her third child. During the first trimester 
of her pregnancy, she developed the measles. She was subsequently 
tested, and the tests confirmed what she and her husband, and 
obstetrician, had feared: if she carried her pregnancy to term, the 
baby would likely be blind, deaf, and severely brain damaged. They were 
anxious to have more children but did not want their child to suffer 
and be in pain, and so they sought an abortion. Her physician was 
sympathetic but would not perform an illegal abortion. At that time 
both the doctor and Elizabeth could be prosecuted and jailed for 
terminating the pregnancy. She did not want an illegal abortion and 
could only have one legally if her life was threatened. Since she had 
one kidney, her doctor thought that they might be able to persuade a 
panel of doctors that her life would be in danger if she carried the 
baby to term. They agreed, but required her to have a total 
hysterectomy at the same time.
  Rollyn Carlson of Austin, TX, was 20 years old in the summer of 1971 
and pregnant. She decided to have an abortion and found an office in 
Mexico on the other side of the Texas border. After the abortion, she 
bled heavily and ran a high fever for 3 days. She was one of the lucky 
ones. She married and had two children. She now has a teenage daughter 
and is concerned about her. What if she got pregnant? What if she 
needed an abortion? Rollyn worries that if abortion is illegal, her 
daughter would have to have an illegal abortion and could die.
  Sherry of Peoria, IL, was married with two children when in the mid-
1950s, she was brutally raped and left for dead. She did not die, but 
as a result of the rape, she became pregnant. She went to her doctor--
he would not perform an abortion. She went to another--he would not 
perform an abortion either. She then resorted to ``home remedies'' such 
as pounding on her abdomen with a meat mallet and throwing herself down 
the stairs. It did not work, so she went to the local abortionist. He 
was drinking during the procedure and offered to give her back some 
money if she would perform oral sex on him. She subsequently started to 
hemorrhage and was hospitalized. Decades later, she still has 
nightmares about the procedure.
  Romanita of Pittsburgh, PA, married and had three children, one--her 
daughter, Norma--with spina bifida. Her husband was a heroin addict and 
had left the home. One day he showed up and raped her. He then 
disappeared, and she found out she was pregnant. She did not want to 
take the chance of having another baby with deformities. She sought out 
an illegal abortion and experienced bleeding for 2 weeks.
  So the point is that when the Court made this historic decision 
called Roe v. Wade, women were dying, maybe 5,000 a year. And you ask 
me, why would people, lawmakers, want to see us go back to those days? 
I will tell you right now, I don't understand it. It isn't right. It 
isn't right for the women of this country. It isn't right for the 
families of this country. Roe v. Wade was a balanced decision.
  Then you have a situation where we wish we had more family planning 
funds because then we would be in a situation where we would not have 
these unwanted pregnancies. The same people who want to outlaw abortion 
are not interested in family planning funds. And interestingly, the 
same people who want to go back to the days when abortion was illegal, 
who will fight for the right of the fetus over the right of a woman, 
where are they, sometimes, on preschool programs, afterschool programs, 
caring for our children, helping our children? A lot of times they do 
not vote for it. As a friend of mine once said, he sometimes thinks 
that some of our colleagues who take this position, and then don't help 
the kids, are all for the kids between conception and birth; and then 
where are they?
  So the reason we are here tonight is because the House is so radical 
on the point that they will not accept our language, that simply says: 
The decision of the Supreme Court in Roe was appropriate and secures an 
important right, and such decision should not be overturned.
  Imagine, they say they want S. 3 so badly, they want to outlaw this 
medical procedure, which is the first time an accepted medical 
procedure is outlawed by politicians, but yet they cannot accept this 
language, which has no force of law. That is the incredible thing. It 
is a sense of the Senate. It does not even have the force of law, but 
it shows you that the goal here is not simply outlawing this one 
procedure; it is overturning Roe. I cannot say that enough because that 
is absolutely true, even when 80 percent of the people said that 
whether to have an abortion is a decision to be made between a woman 
and her doctor.
  This debate is very serious. It is very serious because the 
underlying bill, S. 3, which bans this procedure, makes no exception 
for the health of the woman, and we tried every which way to do that. 
We said: Roe is the law of the land. Under Roe, the life and the health 
of a woman must always be protected. So in order to be constitutional, 
we are willing to walk hand in hand with you, and we will ban this 
procedure, even though some of us believe we should not get into 
playing doctor--that is not our role. There is no OB/GYN in this body. 
People don't come to us when they are sick. They come to us when they 
are sick and tired of politics, but they don't come to us when they are 
physically ill.
  We were willing--those of us who are very pro-choice--to say: We will 
accept this if you will have an exception for the life and the health 
of a woman. Oh, no. They would not do it. That is why our language on 
Roe, that we attached to this bill, is so important. Because, folks, 
this bill, when it becomes law--and it will become law--is going 
straight to the Court.
  We want the Court to understand we stood firmly for Roe. When they 
take a look at the outlawing of this procedure, and when they see there 
is no exception for the health of a woman, they will realize maybe some 
people voted for it who would have preferred a health exception. By 
showing them we have the votes to sustain a sense of the Senate in 
favor of Roe, we will be sending a strong signal on behalf of the women 
of this Nation to the courts.
  Mr. DURBIN. Will the Senator yield for a question?
  Mrs. BOXER. Yes.
  Mr. DURBIN. I thank the Senator for coming to the floor and talking 
about this controversial issue because the Senate will have to face it. 
I am trying to recall, was there not a State statute in Kansas or----
  Mrs. BOXER. Nebraska.
  Mr. DURBIN. Nebraska relative to this so-called partial-birth 
abortion procedure? Is it not true that the same Supreme Court that is 
going to consider our bill ruled that you had to include, in the 
protection for the woman involved, if her health was at risk, she could 
go forward with the procedure? Is my memory correct that this Court, 
within the last year or two, made that decision?
  Mrs. BOXER. It was in 2000. It was a case of a Nebraska law. And, 
yes, the Court found it unconstitutional.
  What the authors of S. 3 will tell you is they have met the test. But 
what constitutional lawyers tell us is that the test isn't met at all. 
There is no exception for health. My colleague actually carried the 
health exception.
  Now, this is what the Supreme Court said--and I am glad my colleague 
asked this question--in Stenberg v. Carhart. They basically said: If 
you are outlawing a medical procedure, you have to have a health 
exception.

       The governing standard requires an exception ``where it is 
     necessary, in appropriate medical judgment for the 
     preservation of the life or health of the mother.''
       Our cases have repeatedly invalidated statutes that in the 
     process of regulating the methods of abortion impose 
     significant health risks.


[[Page 21967]]


  My friend is right on target. This is the Supreme Court.
  Mr. DURBIN. I ask my friend from California, who has followed this 
issue more closely than any other Member, for those who are trying to 
follow this debate, when the Supreme Court says if you are going to 
write a law banning an abortion procedure, you have to acknowledge that 
if the mother is about to die, that procedure will be allowed. Then the 
Court went on to say in this case, if there is a significant health 
risk involved as far as the woman is concerned, you have to allow the 
procedure. Would the Senator from California give us indications of 
what that means when we talk about health risk and significant health 
risk? What are we saying? A complication late in pregnancy that is so 
significant as to give to that mother the right to terminate the 
pregnancy, could the Senator give us some illustrations of what kind of 
health risk we are talking about?
  Mrs. BOXER. Working with physicians across the country, I want to 
tell you what they have told us in writing. I ask unanimous consent to 
print those letters in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                  American Medical


                                    Women's Association, Inc.,

                                   Alexandria, VA, March 25, 2003.
     Hon. Jerrold Nadler,
     House of Representatives,
     Washington, DC.
       Dear Congressman Nadler: The American Medical Women's 
     Association (AMWA) strongly opposes HR 760, the ``Partial-
     Birth Abortion Ban Act of 2003.'' While the Association has 
     high respect for each member and their right to hold whatever 
     moral, religious and philosophical beliefs his or her 
     conscience dictates, as an organization of 10,000 women 
     physicians and medical students dedicated to promoting 
     women's health and advancing women in medicine, we believe HR 
     760 is unconscionable.
       AMWA has long been an advocate for women's access to 
     reproductive health care. As such, we recognize this 
     legislation as an attempt to ban a procedure that in some 
     circumstances is the safest and most appropriate alternative 
     available to save the life and health of the woman. 
     Furthermore, this bill violates the privilege of a patient in 
     consultation with her physician to make the most appropriate 
     decisions regarding her specific health circumstances.
       AMWA opposes legislation such as HR 760 as inappropriate 
     intervention in the decision-making relationship between 
     physician and patient. The definition of the bill is too 
     imprecise and it includes non-medical terminology for a 
     procedure that may ultimately undermine the legality of other 
     techniques in obstetrics and gynecology used in both abortion 
     and non-abortion situations. At times, the use of these 
     techniques is essential to the lives and health of women. The 
     potential of this ban to criminalize certain obstetrics and 
     gynecology techniques ultimately interferes with the quality 
     of heath and lives of women. Furthermore, the current ban 
     fails to meet the provisions set forth by the Supreme Court 
     in Stenberg v. Carhart, a ruling that overturned a Nebraska 
     statute banning abortion because it contained no life and 
     health exception for the mother.
       AMWA's position on this bill corresponds to the position 
     statement of the organization on abortion and reproductive 
     health services to women and their families.
       AMWA believes that the prevention of unintended pregnancies 
     through access to contraception and education is the best 
     option available for reducing the abortion rate in the United 
     States. Legislative bans for procedures that use recognized 
     obstetrics and gynecological techniques fails to protect the 
     health and safety of women and their children, nor will it 
     improve the lives of women and their families. If you have 
     any questions please contact Meghan Kissell, at 703-838-0500.
           Sincerely,
                                                 Lynn Epstein, MD,
     President.
                                  ____

                                                   American Public


                                           Health Association,

                                   Washington, DC, March 31, 2003.
     U.S. House of Representatives,
     Washington, DC.
       Dear Representative: On behalf of the American Public 
     Health Association (APHA) the largest and oldest organization 
     of public health professionals in the nation, representing 
     more than 50,000 members from over 50 public health 
     occupations, I write to urge your opposition to H.R. 760, the 
     Partial-Birth Abortion Ban Act of 2003.
       APHA has long-standing policy regarding the sanctity of the 
     provider-patient relationship and has long advocated for a 
     women's right to choose from a full range of reproductive 
     health options. We believe that a physician in consultation 
     with the patient should make the decision regarding what 
     method should be used to terminate a pregnancy.
       We are opposed to H.R. 760 because we believe this and 
     other legislative and judicial restrictions to safe, 
     medically accepted abortion procedures severely jeopardize 
     women's health and well-being. APHA also opposes the bill 
     because it fails to include adequate health exception 
     language in instances where certain procedures may be 
     determined by a physician to be the best or most appropriate 
     to preserve the health of the woman. We urge members of the 
     House of Representatives to oppose this legislation.
       Thank you for your attention to our concerns regarding the 
     negative effect this legislation would have to a woman's 
     right to a safe, legal abortion.
           Sincerely,
                                     George C. Benjamin, MD, FACP,
     Executive Director.
                                  ____

                                                    March 5, 2003.
     Hon. Barbara Boxer,
     U.S. Senate,
     Washington, DC.
       Dear Senator Boxer: I understand that you will be 
     considering Senate S. 3, the ban on abortion procedures, soon 
     and would like to offer some medical information that may 
     assist you in your efforts. Important stakes for women's 
     health are involved: if Congress enacts such a sweeping ban, 
     the result could effectively ban safe and common, pre-
     viability abortion procedures.
       By way of background, I am an adjunct professor in the 
     Department of Obstetrics, Gynecology and Reproductive 
     Sciences at the University of California, San Francisco, 
     where I co-directed the Center for Reproductive Health 
     Research and Policy. Formerly, I directed the Reproductive 
     Health program for the Henry J. Kaiser Family Foundation and 
     served as Deputy Assistant Secretary for Population Affairs 
     for the United States Department of Health and Human 
     Services. I represented the United States at the 
     International Conference on Population and Development (ICPD) 
     in Cairo, Egypt, and currently serve on a number of Boards 
     for organizations that promote emergency contraception and 
     new contraceptive technologies, and support reducing teen 
     pregnancy. My medical and policy areas of expertise are in 
     the family planning and reproductive health, prevention of 
     sexually transmitted infections including HIV/AIDs, and 
     enhancing international and family planning.
       The proposed ban on abortion procedures criminalizes 
     abortions in which the provider ``deliberately and 
     intentionally vaginally delivers a living fetus . . . for the 
     purpose of performing an overt act that the person knows will 
     kill the partially delivered living fetus. . . .'' The 
     criminal ban being considered is flawed in a number of 
     respects: it fails to protect women's health by omitting an 
     exception for women's health; it menaces medical practice 
     with the threat of criminal prosecution; it encompasses a 
     range of abortion procedures; and it leaves women in need of 
     second trimester abortions with far less safe medical 
     options: hysterotomy (similar to a cesarean section) and 
     hysterectomy.
       The proposed ban would potentially encompass several 
     abortion methods, including dilation and extraction (d&x, 
     sometimes referred to as ``intact d&e), dilation and 
     evacuation (d&e), the most common second-trimester procedure. 
     In addition, such a ban could also apply to induction 
     methods. Even if a physician is using induction as the 
     primary method for abortion, he or she may not be able to 
     assure that the procedure could be effected without running 
     afoul of the proposed ban. A likely outcome if this 
     legislation is enacted and enforced is that physicians will 
     fear criminal prosecution for any second trimester abortion--
     and women will have no choice but to carry pregnancies to 
     term despite the risks to their health. It would be a sad day 
     for medicine if Congress decides that hysterotomy, 
     hysterectomy, or unsafe continuation of pregnancy are women's 
     only available options. Williams Obstetrics, one of the 
     leading medical texts in Obstetrics and Gynecology, has this 
     to say about the hysterotomy ``option'' that the bill leaves 
     open: ``Nottage and Liston (1975), based on a review of 700 
     hysterotomies, rightfully concluded that the operation is 
     outdated as a routine method for terminating pregnancy.'' 
     Cunningham and McDonald, et al, Williams Obstetrics, 19th 
     ed., (1993), p. 683.
       Obviously, allowing women to have a hysterectomy means that 
     Congress is authorizing women to have an abortion at the 
     price of their future fertility, and with the added risks and 
     costs of major surgery. In sum, the options left open are 
     less safe for women who need an abortion after the first 
     trimester of pregnancy.
       I'd like to focus my attention on that subset of the women 
     affected by this bill who face grievous underlying medical 
     conditions. To be sure, these are not the majority of women 
     who will be affected by this legislation, but the grave 
     health conditions that could be worsened by this bill 
     illustrate how sweeping the legislation is.
       Take for instance women who face hypertensive disorders 
     such as eclampsia--convulsions precipitated by pregnancy-
     induced or aggravated hypertension (high blood pressure). 
     This, along with infection and hemorrhage, is one of the most 
     common causes of

[[Page 21968]]

     maternal death. With eclampsia, the kidneys and liver may be 
     affected, and in some cases, if the woman is not provided an 
     abortion, her liver could rupture, she could suffer a stroke, 
     brain damage, or coma. Hypertensive disorders are conditions 
     that can develop over time or spiral out of control in short 
     order, and doctors must be given the latitude to terminate a 
     pregnancy if necessary in the safest possible manner.
       If the safest medical procedures are not available to 
     terminate a pregnancy, severe adverse health consequences are 
     possible for some women who have underlying medical 
     conditions necessitating a termination of their pregnancies, 
     including: death (risk of death higher with less safe 
     abortion methods); infertility; paralysis; coma; stroke; 
     hemorrhage; brain damage; infection; liver damage; and kidney 
     damage.
       Legislation forcing doctors to forego medically indicated 
     abortions or to use less safe but politically-palatable 
     procedures is simply unacceptable for women's health.
       Thank you very much, Senator, for your efforts to educate 
     your colleagues about the implications of the proposed ban on 
     abortion procedures.
           Sincerely,
     Felicia H. Stewart, M.D.
                                  ____

                                                    Physicians for


                               Reproductive Choice and Health,

                                     New York, NY, March 10, 2003.
     Hon. Barbara Boxer,
     U.S. Senate,
     Washington, DC.
       Dear Senator Boxer: We are writing to urge you to stand in 
     defense of women's reproductive health and vote against S. 3, 
     legislation regarding so-called ``partial birth'' abortion.
       We are practicing obstetrician-gynecologists, and academics 
     in obstetrics, gynecology and women's health. We believe it 
     is imperative that those who perform terminations and manage 
     the pre- and post-operative care of women receiving abortions 
     are given a voice in a debate that has largely ignored the 
     two groups whose lives would be most affected by this 
     legislation: physicians and patients.
       It is misguided and unprincipled for lawmakers to legislate 
     medicine. We all want safe and effective medical procedures 
     for women; on that there is no dispute. However, the business 
     of medicine is not always palatable to those who do not 
     practice it on a regular basis. The description of a number 
     of procedures--from liposuction to cardiac surgery--may seem 
     distasteful to some, and even repugnant to others. When 
     physicians analyze and debate surgical techniques among 
     themselves, it is always for the best interest of the 
     patient. Abortion is proven to be one of the safest 
     procedures in medicine, significantly safer than childbirth, 
     and in fact has saved numerous women's lives.
       While we can argue as to why this legislation is dangerous, 
     deceptive and unconstitutional--and it is--the fact of the 
     matter is that the text of the bill is so vague and 
     misleading that there is a great need to correct the 
     misconceptions around abortion safety and technique. It is 
     wrong to assume that a specific procedure is never needed; 
     what is required is the safest option for the patient, and 
     that varies from case to case.


                               the facts

       (1) So-called ``partial birth'' abortion does not exist.
       There is no mention of the term ``partial birth'' abortion 
     in any medical literature. Physicians are never taught a 
     technique called ``partial birth'' abortion and therefore are 
     unable to medically define the procedure.
       What is described in this legislation, however, could ban 
     all abortions. ``What this bill describes, albeit in non-
     medical terms, can be interpreted as any abortion,'' stated 
     one of our physician members. ``Medicine is an art as much as 
     it is a science; although there is a standard of care, each 
     procedure--and indeed each woman--is different. The wording 
     here could apply to any patient.'' The bill's language is too 
     vague to be useful; in fact, it is so vague as to be harmful. 
     It is intentionally unclear and deceptive.
       (2) Physicians need to have all medical options available 
     in order to provide the best medical care possible. Tying the 
     hands of physicians endangers the health of patients. It is 
     unethical and dangerous for legislators to dictate specific 
     surgical procedures. Until a surgeon examines the patient, 
     she does not necessarily know which technique or procedure 
     would be in the patient's best interest. Banning procedures 
     puts women's health at risk.
       (3) Politicians should not legislate medicine. To do so 
     would violate the sanctity and legality of the physician-
     patient relationship. The right to have an abortion is 
     constitutionally-protected. To falsify scientific evidence in 
     an attempt to deny women that right is unconscionable and 
     dangerous.
       The American College of Obstetricians and Gynecology, 
     representing 45,000 ob-gyns, agrees: ``The intervention of 
     legislative bodies into medical decision making is 
     inappropriate, ill advised, and dangerous.''
       The American Medical Women's Association, representing 
     10,000 female physicians, is opposed to an abortion ban 
     because it ``represents a serious impingement on the rights 
     of physicians to determine appropriate medical management for 
     individual patients.''


                              the science

       We know that there is no such technique as ``partial 
     birth'' abortion, and we believe this legislation is a 
     thinly-veiled attempt to outlaw all abortions. Those 
     supporting this legislation seem to want to confuse both 
     legislators and the public about which abortion procedures 
     are actually used. Since the greatest confusion seems to 
     center around techniques that are used in the second and 
     third trimesters, we will address those: dilation and 
     evacuation (D&E), dilation and extraction (D&X), 
     instillation, hysterectomy and hysterotomy (commonly known as 
     a c-section).
       Dilation and evacuation (D&E) is the standard approach for 
     second-trimester abortions. The only difference between a D&E 
     and a more common, first-trimester vacuum aspiration is the 
     cervix must be further dilated. Morbidity and mortality 
     studies indicate that this surgical method is preferable to 
     labor induction methods (instillation), hysterotomy and 
     hysterectomy.
       From the years 1972-76, labor induction procedures carried 
     a maternal mortality rate of 16.5 (note: all numbers listed 
     are out of 100,000); the corresponding rate for D&E was 10.4. 
     From 1977-82, labor induction fell to 6.8, but D&E dropped to 
     3.3. From 1983-87, induction methods had a 3.5 mortality 
     rate, while D&E fell to 2.9. Although the difference between 
     the methods shrank by the mid-1980s, the use of D&E had 
     already quickly outpaced induction, thus altering the size of 
     the sample.
       Morbidity trends indicate that dilation and evacuation is 
     much safer than labor induction procedures, and for women 
     with certain medical conditions, e.g., coronary artery 
     disease or asthma, labor induction can pose serious risks. 
     Rates of major complications from labor induction were more 
     than twice as high as those from D&E. There are instances of 
     women who, after having failed inductions, acquired 
     infections necessitating emergency D&Es, which ultimately 
     saved her fertility and, in some instances, her life. 
     Hysterotomy and hysterectomy, moreover, carry a mortality 
     rate seven times that of induction techniques and ten times 
     that of D&E.
       There is a psychological component which makes D&E 
     preferable to labor induction; undergoing difficult, 
     expensive and painful labor for up to two days is extremely 
     emotionally and psychologically draining, much more so than a 
     surgical procedure that can be done in a few hours under 
     general or local anesthesia. Furthermore, labor induction 
     does not always work: Between 15 and 30 percent of cases 
     require surgery to complete the procedure. There is no 
     question that D&E is the safest method of second-trimester 
     abortion.
       There is also a technique known as dilation and extraction 
     (D&X). D&X is merely a variant of D&E. There is a dearth of 
     data on D&X as it is an uncommon procedure. However, it is 
     sometimes a physician's preferred method of termination for a 
     number of reasons: it offers a woman the chance to see the 
     intact outcome of a desired pregnancy, thus speeding up the 
     grieving process; if provides a greater chance of acquiring 
     valuable information regarding hereditary illness or fetal 
     anomaly; and there is a decreased risk of injury to the 
     woman, as the procedure is quicker than induction and 
     involves less use of sharp instruments in the uterus, 
     providing a lesser chance of uterine perforations or tears 
     and cervical lacerations.
       It is important to note that these procedures are used at 
     varying gestational ages. Neither a D&E nor a D&X is 
     equivalent to a late-term abortion. D&E and D&X are used 
     solely based on the size of the fetus, the health of the 
     woman, and the physician's judgment, and the decision 
     regarding which procedure to use is done on a case-by-case 
     basis.


                            the legislation

       Because this legislation is so vague, it would outlaw D&E 
     and D&X (and arguably techniques used in the first-
     trimester). Indeed, the Congressional findings--which go into 
     detail, albeit in non-medical terms--do not remotely 
     correlate with the language of the bill. This legislation is 
     reckless. The outcome of its passage would undoubtedly be 
     countless deaths and irreversible damage to thousands of 
     women and families. We can safely assert that without D&E and 
     D&X, that is, an enactment of S. 3, we will be returning to 
     the days when an unwanted pregnancy led women to death 
     through illegal and unsafe procedures, self-inflicted 
     abortions, uncontrollable infections and suicide.
       The cadre of physicians who provide abortions should be 
     honored, not vilified. They are heroes to millions of women, 
     offering the opportunity of choice and freedom. We urge you 
     to consider scientific data rather than partisan rhetoric 
     when voting on such far-reaching public health legislation. 
     We strongly oppose legislation intended to ban so-called 
     ``partial birth'' abortion.
           Sincerely,
     Natalie E. Roche, MD,
       Assistant Professor of Obstetrics and Gynecology, New 
     Jersey Medical College.
     Gerson Weiss, MD,

[[Page 21969]]

       Professor and Chair, Department of Obstetrics, Gynecology 
     and Women's Health, New Jersey Medical College.

  Mrs. BOXER. What the physicians have told us is there are serious 
health consequences of banning safe procedures such as the one that 
will be banned in this bill. One is hemorrhage. People can die, they 
can lose blood, or be ill for a very long time. They can rupture their 
uterus and therefore never be able to carry a baby. They could get 
blood clots and have serious brain damage, an embolism, a stroke. There 
could be damage to nearby organs. There could even be paralysis. These 
are the terrible incidents that could happen to a woman if a doctor is 
in a situation of an emergency late-term procedure and is not able to 
use everything he has been able to use up until S. 3.
  Mr. DURBIN. So for clarity, I ask the Senator, the bill we are going 
to be asked to vote on has an exception. This procedure is allowed if 
the life of the mother is at stake. But all of the significant health 
risks which you have just read, does this bill allow a doctor, in the 
midst of a medical emergency, to terminate a pregnancy if there is a 
significant health risk to the mother?
  Mrs. BOXER. The answer is absolutely not. That is why it is so 
shocking to me. My friend knows because he worked hard on this. He 
tried to get a health exception. As a matter of fact, it was very 
strong language. Will my friend remind me what he said in making that 
health exception?
  Mr. DURBIN. I offered an alternative to the bill that will be before 
us. I said, if late in a pregnancy a woman who is carrying a fetus is 
in danger of a grievous physical health risk, verified by two doctors--
not just a doctor performing the procedure but another doctor, for a 
second opinion, has to verify it--then it would be allowed. That was 
defeated on the floor. What I tried to do was to narrow the exception, 
even probably more narrow than the Supreme Court said so my colleagues 
would give a doctor, in an extraordinary emergency situation, not life 
or death but one equally serious, at least in terms of the woman's 
future health. As the Senator from California probably will recall, 
that was defeated on the floor.
  I ask the Senator from California this: If the Supreme Court has 
already said, don't send us a statute, don't send us a proposal that 
doesn't protect the health of the mother when there is a significant 
health risk late in the pregnancy because that violates what we found 
to be the right of privacy under Roe v. Wade, why are we now 
considering S. 3, this bill, which defies the Supreme Court and says to 
them, we know better, we are going to change your mind, we are going to 
send you something that doesn't meet the test in light of the Nebraska 
statute? Can the Senator from California explain why we are going 
through this?
  Mrs. BOXER. Well, I would say politics is part of it, but I would 
also say there is an agenda in this Senate and in the House. That 
agenda is to overturn Roe, to keep on pushing through bills that 
challenge Roe directly. And Roe, as I said, is very clear on the health 
exception.
  Let's go back to the first chart. The bottom line is, Roe is very 
clear:

       In 1973, for the stage subsequent to viability, the State 
     in promoting its interest in the potentiality of human life 
     may, if it chooses, regulate, and even proscribe--

which is a fancy word for ban--

     abortion except where it is necessary, in appropriate medical 
     judgment, for the preservation of the life or health of the 
     mother.

  This is the heart of Roe.
  Mr. DURBIN. The Senator is saying this proposal we are receiving, 
banning a specific abortion procedure, does not allow an exception for 
the health of the mother.
  Mrs. BOXER. That is right.
  Mr. DURBIN. Even though the Supreme Court ruled 2 or 3 years ago on a 
State statute that tried to do the same thing that it clearly was 
unconstitutional or at least violative of Roe v. Wade, they have 
already thrown that out. Yet the Senate is going to be asked to vote 
again to eliminate an abortion procedure which a doctor may decide is 
in the best interest of a woman who, late in her pregnancy, facing an 
emergency, has a significant health risk; that is what we are being 
asked to vote on?
  Mrs. BOXER. That is right. But it is even worse because the language 
Tom Harkin had written into the bill, the sense-of-the-Senate language, 
is now being stripped out of the bill by the House. The reason we are 
here talking about this is, I want the Senate to disagree with what the 
House did. It is bad enough to do what we have done here without my 
vote--and I believe without yours, although I am not sure in the end 
how you voted.
  The bottom line is, it is bad enough to ban a procedure and make no 
exception for the health of a woman. It is so violative of her rights 
and her dignity and of the respect that is due her. But in addition, 
they stripped out the language we added that said, maybe people, for 
whatever reason, are going to vote for this, but we also want to go on 
record in support of Roe. The reason we are here now is that the House, 
rather than take that language and send it off to the President, would 
have gotten their ban with a little sense-of-the-Senate language that 
supported Roe. No, the House had to prolong this, strip this out. And 
now to get to conference, we have to have a motion to disagree with 
what the House did, which I hope we will disagree with what they did.
  So what I was trying to do and what Harkin was trying to do--and we 
all were trying to do--is say: S. 3 has problems, but you should know 
we still support Roe.
  Mr. DURBIN. I ask the Senator, is it your impression the House 
conferees and those who agreed in the Senate are really going after the 
heart of the issue in Roe v. Wade? It is their intention to overturn 
Roe v. Wade by reason of the fact they have stripped the language 
Senator Harkin offered affirming Roe v. Wade?
  Mrs. BOXER. That is right.
  Mr. DURBIN. And if we eliminated Roe v. Wade--and there are some in 
your State and in my State, too, who would say, do that, because of our 
personal, religious and philosophical beliefs--what protection would 
there be that an abortion procedure under any circumstances would be 
safe and legal in the United States?
  Mrs. BOXER. It would be a disaster for women. I have noted that 
before Roe, 5,000 women a year died because there were very harsh laws. 
If Roe v. Wade was eliminated, women would not have the right to 
privacy in this matter. Early-stage abortion would not be between her 
and her doctor and her God and family, but it would be a matter for 
Senators to determine--and State Senators and assembly members and 
Governors all over this country. And a woman would risk her freedom if 
she had an abortion, just like we had before 1973.
  So affirming Roe v. Wade is the right thing to do. It has made a 
difference in women's lives. More than anything, I think as our country 
matures, we recognize that women deserve to be treated with respect and 
dignity. It has been a long, hard road for women in this country, I say 
to my friend who is such a supporter of equality across the board. 
Women didn't even get to vote until 1920. We had to struggle. In 1973, 
I remember it very well. I remember women risking their lives to get an 
illegal abortion. I had read a case of a woman who was raped and she 
was so fearful and embarrassed and ashamed, she got an illegal, botched 
abortion. She was sick and the doctor even threatened to call the 
police on her.
  Mr. DURBIN. I ask the Senator this question. I can recall in the time 
I have been in public service that the vocal supporters of Roe v. Wade 
and keeping abortion safe and legal used to contain in their ranks many 
women who remembered vividly from a personal experience or a family 
experience what it was like before Roe v. Wade, when women in desperate 
circumstances sought an abortion in an unhealthy, unsanitary, unclean 
surrounding, endangering their lives. I ask the Senator, does she 
believe the national debate is different today because we have had 25 
or 30 years of legal opportunities to terminate a pregnancy and, thank

[[Page 21970]]

goodness, there are fewer of those women whose lives were lost or 
damaged because of these illegal and unsafe abortions that preceded 
them?
  Mrs. BOXER. I think the Senator is right. The further we get away 
from those years, there is less memory. I think there is something 
else. I think most people--young people and middle-aged people--who 
don't have that many memories of it think Roe v. Wade will not be 
overturned; it is just a slogan.
  Let me say what my friend knows so well. Roe v. Wade is hanging by a 
5-to-4 vote in the Supreme Court. That is why I think my colleagues 
keep coming back with this approach of banning this medical procedure, 
which many doctors have used because it was the safest one to save the 
life and health of a woman. They keep coming and they keep thinking 
someday the Court will reverse it and go 5-to-4 the other way. I think 
at that point women will rise up. But it is our job. That is why I am 
so grateful to the Senator for coming over here. It is our job because 
we are lawmakers to look ahead and not wait for that crisis, and to 
make the point and to discuss what could happen to a woman. She could 
have a stroke if this procedure is outlawed. She could have a 
hemorrhage or a blood clot. She could become paralyzed. She could be 
infertile. These are horrible things that can happen to our daughters, 
our granddaughters, and it could even be worse. We can have some 
States, if Roe were overturned, that could put a woman in jail, could 
put a doctor in jail for trying to assert a privacy right.
  Mr. DURBIN. I will ask one last question of the Senator from 
California. First, let me say, though I personally oppose abortion, and 
I would counsel a woman in my family to look for an alternative, or 
adoption, and help in any way I could, I believe we have to really make 
a special effort to protect the legality of the decision that a woman 
ultimately makes in this situation, when her life and her health are at 
stake--a decision that should be made by her, her doctor, her 
conscience, and her family, as the Senator said.
  What I found 21 years ago, when I came to Congress with that belief, 
was the startling discovery that so many people who opposed abortion 
also opposed family planning. That, to me, seems totally inconsistent--
that you would not give to a woman options so that she could avoid an 
unplanned pregnancy.
  I want to ask the Senator from California this: Based on what she has 
seen, and what I have seen in almost 21 years on Capitol Hill, if those 
people are successful in the Senate and House and eventually overturn 
Roe v. Wade, can the Senator give me some indication of what she thinks 
is next when it comes to issues of family planning--issues that women 
value as much as their Roe v. Wade rights, but those issues as well? 
Have we not seen repeatedly in the Congress the same voices who are 
calling for the overturning of Roe v. Wade also limiting options for 
women to plan the size of their family--the frequency of children in 
their family?
  Mrs. BOXER. There is no question about it. With this administration, 
the very first thing the President did was put in place the 
international gag rule, which stopped nonprofits all over the world 
from getting Federal funds to use to help these women to plan their 
families.
  Let me tell you what has happened. We have seen already an assault on 
a woman's right to choose. I think my colleague is absolutely right to 
point out that Roe is just one of their goals; it is their major goal, 
however. I will tell you what is happening. Federal regulations were 
issued by this administration that make embryos and fetuses, but not 
pregnant women, eligible for health benefits. What you will see is this 
is all leading up to the place where a woman eventually will not have a 
right to choose, or any rights at all when she is pregnant. In other 
words, pregnant women now cannot get the prenatal care; it is the 
fetus. We have never done that before. We have always recognized that 
it is the woman who is nurturing that child; that the woman gets the 
help and the child gets the nourishment.
  There is legislation being pushed here to recognize an embryo as a 
person with rights separate and apart from the woman. That is another 
move to set up a situation where abortion, even in the first minute, 
would be seen as murder. So this is what is happening today. There is 
moving legislation forcing some young women to make reproductive health 
choices alone and criminalizing caring adults who help them. There are 
attempts to block women's access to RU486, a drug that is proven safe 
and effective and would be an alternative to surgical abortion. There 
are attempts to block access to emergency contraception. There is a 
denial of Roe v. Wade protections to Federal employees and low-income 
women who rely on the Federal Government, who live in the District of 
Columbia, and to U.S. servicewomen living overseas, and women in 
Federal prison. These women cannot get the health care if they want to 
exercise their right to choose, whereas a wealthy woman can do that.
  Here is your point: They are starving funding for family planning 
programs, both here and abroad. And there is also the cancellation of 
international family planning funding. We voted in Congress for $34 
million for international family planning money. The Bush 
administration will not spend a penny. When you ask them why, they say 
these agencies are using it for abortion. That is plain untrue. It is 
untrue. They don't because they are audited and monitored, and they 
cannot.
  In winding down this debate--and we have several hours left--I want 
to say why I think it is so important that we stand in favor of Roe v. 
Wade. We are going to go back to what the debate is really about. It is 
about standing up for the Senate language that was brought to us by the 
Senator from Iowa, Tom Harkin, with over 50 of us signing on and voting 
for it, that simply says it is the sense of the Senate that the 
decision of the Supreme Court in Roe v. Wade was appropriate and 
secures an important right, and such decision should not be overturned. 
It is a very straightforward and simple statement--elegant, if I may 
say so; it is an elegant amendment by the Senator from Iowa that says 
to the women of this country that we respect you and, as my friend 
said, he is personally opposed to abortion. You know what. That is so 
much that is right in this country of ours. That is what being pro-
choice is--that each of us in our own hearts, with our own family, with 
our God, can decide this issue for ourselves, without Senators peering 
into our private decisions. What a horrible thought is that. Really, 
life is complicated enough without having a bunch of Senators deciding 
what we should do in the privacy of our own homes in the early stage of 
a pregnancy.
  That is what Roe was--a very balanced decision. It says: If you want 
to go through with this pregnancy, absolutely that is your right, but 
if you do not, in the early stages it says to women: We respect you 
enough, we give you that dignity; we trust you enough to make that 
decision.
  Senator Harkin said it right. This Senate stood up with him and we 
voted in favor and appended that language to the banning of this 
medical procedure. Our colleagues in the House looked at this--and they 
are so radical, I say to my friend--and rather than moving that bill 
right through to the President's desk with sense-of-the-Senate language 
that has no force of law, they chose to strip out this language from 
the bill, and now we have to take this bill to conference.
  The reason I am here and the reason the Senator from Illinois is here 
tonight is to say we are going to take another stand in favor of Roe. 
We are going to vote to disagree with what the House did. We hope that 
vote will be large, and we hope that the conferees will, therefore, go 
into that conference and push hard to have this language added.
  If this language is not added, this Senate is going on record with S. 
3, minus this language, of saying: Women's health is just not 
important. I hope every woman in this country, whether they agree with 
Roe or they disagree with Roe, whether they themselves would make one 
decision or another, will come together and say: Pro-

[[Page 21971]]

choice means that the Government respects the individual, and isn't 
that really what our country is all about?
  I thank the Chair. I yield back my time.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. Mr. President, I admire my distinguished colleague from 
California. She is a fighter. She has a conscience, and she is 
dedicated. I am delighted to listen to her. I agree with her 
absolutely.

                          ____________________