[Congressional Record (Bound Edition), Volume 149 (2003), Part 18]
[Senate]
[Pages 25404-25426]
[From the U.S. Government Publishing Office, www.gpo.gov]




  PARTIAL-BIRTH ABORTION BAN ACT OF 2003--CONFERENCE REPORT--Continued

  Mr. SANTORUM. Mr. President, I yield 10 minutes to the Senator from 
Colorado.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, I commend the Senator from Pennsylvania, 
Mr. Santorum, and Senator Frist for their leadership on this particular 
issue. Both have worked extremely hard. I also commend the Presiding 
Officer for his leadership for the rights of the unborn.
  I am pleased to be a cosponsor of the Partial-Birth Abortion Act, 
which is S. 3. This legislation is designed to help protect unnecessary 
suffering of the unborn child and also to protect the mother. It 
prohibits a partial-birth abortion, which is a partial delivery of a 
living baby, the killing of a baby before complete delivery.
  The bill allows partial-birth abortion except for the life of the 
mother, and in cases where there is endangerment by physical disorder, 
illness, and injury.
  I will go through some of the bill's definitions, which I think say a 
lot about what this bill is all about.
  The term ``partial-birth abortion'' means an abortion which, first, 
``the person performing the abortion deliberately and intentionally 
vaginally delivers a living fetus until, in the case of a head-first 
presentation, the entire fetal head is outside the body of the mother, 
or, in the case of breech presentation, any part of the fetal trunk 
past the navel is outside the body of the mother for the purpose of 
performing an overt act that the person knows will kill the partially 
delivered living fetus.'' That is the way it is defined in the bill. 
Further, the term ``partial-birth abortion'' means an overt act, other 
than completion of delivery, that ``kills the partially delivered 
living fetus with this procedure.''
  This type of abortion is called a D&X abortion, which would be 
prohibited, also referred to as a dilation and extraction abortion. The 
bill defines ``extraction'' as: ``Extraction from the uterus and into 
the vagina of all of the body of a fetus except the head, following 
which the fetus is killed by extracting the contents of the skull.'' 
After the baby's skull tissue is rooted out, then the remains of the 
baby are removed.
  I emphasize, this bill does not prohibit other abortions. For 
example, it does not prohibit what is commonly referred to as D&E, or 
dilation and evacuation, a procedure which includes dismemberment of 
the baby inside the uterus, induction of preterm labor with the fetus 
forced from the uterus, and suctioning of the baby out of the uterus. 
It does not prohibit suction abortion, which involves scraping the 
fetus apart from the placenta, or suctioning the baby out of the 
uterus. It does not prohibit all other types of abortion that might be 
applied, such as a Caesarian section or a hysterotomy.
  The bill protects the life and safety of the mother. Partial-birth 
abortion was never intended to be a procedure to protect the health of 
the mother. This procedure has become a form of abortion. On the 
contrary, we need a ban in order to protect the health of the mother. 
It is a dangerous procedure, it is a fringe procedure, and it is 
outside the mainstream of routine medicine.
  The American Medical Association, for example, which is an 
organization that is committed to medical excellence on behalf of 
patients and professionals, opposes this procedure. The AMA has 
described this procedure as unsafe and dangerous. The American Medical 
Association has stated it is ``not good medicine,'' ``not medically 
indicated.''
  There are some specific exceptions: If the mother's life is in 
danger. The bill allows abortion if endangered by physical disorders or 
illness or injury.
  In the bill, again, it says:

       Any physician who, in or affecting interstate or foreign 
     commerce, knowingly performs a partial-birth abortion and 
     thereby kills a human fetus shall be fined under this title 
     or imprisoned not more than 2 years or both. This subsection 
     does not apply to a partial-birth abortion that is necessary 
     to save the life of a mother whose life is endangered by a 
     physical disorder, physical illness, or physical injury, 
     including a life-endangering physical condition caused by or 
     arising from the pregnancy itself.

  I went through a lot of the procedures of the bill just to let the 
Members of the Senate know how grotesque this procedure is. This bill 
is necessary and important.
  This legislation is designed to protect infants. Testimony in 
committee indicates there is pain to the baby when this partial-birth 
abortion procedure is conducted. Professor Robert White, who is 
director of the Division of Neurosurgery and Brain Research Laboratory 
at Case Western Reserve School of Medicine, testified before the 
Constitution Subcommittee in 1995. These are his exact words:

       The fetus within this time frame of gestation, 20 weeks and 
     beyond, is fully capable of experiencing pain. Without 
     question, all of this is a dreadfully painful experience for 
     any infant subject to such a surgical procedure.

  The procedure should not exist or be permitted, in my view. It is 
painful, morbid, inhumane, and simply barbaric. A majority of Americans 
believe we should end this practice and it should be illegal except if 
necessary to save the life of the mother.
  The House and Senate have passed a number of times on this 
legislation. We passed a partial-birth abortion bill from this body in 
the 104th, 105th, and 106th Congresses. In the 108th Congress, both the 
House and the Senate passed this ban--with a vote in the House of 181 
for, 142 against. It was a bipartisan vote. Again, we had a bipartisan 
vote in the Senate, where we had 64 for and 33 against.
  It is important that we pass this particular legislation. The 
President strongly supports S. 3. President Bush, in his State of the 
Union Address, asked Congress to:

     . . . protect infants at the very moment of birth, and end 
     the practice of partial-birth abortion.

  We need to act now. I again thank my colleagues in the Senate who 
have been such strong advocates of eliminating partial-birth abortion 
except in situations threatening the life of the mother. I am pleased 
we are acting now, and I thank my colleagues for their support of this 
important ban for the Nation's children.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. After conferring with my colleague from California, we 
set this in place. I will yield to the Senator from Illinois for 10 
minutes. I ask unanimous consent that following that 10 minutes, the 
Senator from Ohio be recognized for 10 minutes.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.

[[Page 25405]]


  Mrs. BOXER. Mr. President, I yield 10 minutes to the Senator from 
Illinois. If he needs further time, I agree to an additional 5 minutes.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, this debate is not something I look 
forward to on the floor of the Senate. This is one of the toughest 
issues any elected official ever has to face. It is highly 
controversial. In my home State of Illinois, in my hometown of 
Springfield, virtually everywhere I travel, there is a strong 
difference of opinion on the issue of abortion.
  I understand that, and I really have to say as to all those who come 
to the floor today on either side of this issue, we should never 
question their motives because I think each and every one of us has 
tried to search our soul to find out what is fair and what is just. In 
many instances here, we are talking about things beyond our expertise 
as individuals. Some of us are lawyers, some have other backgrounds. 
Very few, if any of us, have medical credentials. But we come today to 
consider something which is historic, and that is that we would ban in 
the United States a medical procedure.
  To my knowledge, that has never been done. It is being done here 
under the pretense that it is the humane and right thing to do. Yet 
when you speak to the professionals, those who do this for a living, 
the obstetricians and gynecologists, they basically tell you, be 
careful, because you can't really predict in every instance what a 
mother might face late in a pregnancy. But this bill has decided that 
regardless of the medical emergency that might face a mother late in 
her pregnancy--regardless, we are going to eliminate once and for all 
this medical procedure. I think that is a very historic and very 
dangerous action.
  I wonder if, in retrospect, we would do it in any other area of 
medicine. But when it comes to the politically controversial area of 
abortion, many politicians and elected officials just come roaring 
through the door and say: Let me tell you what we are going to do and 
what we are not going to do.
  I have tried to look at this in honest and fair terms. Let me tell 
you what I believe. I believe all late-term abortions should be 
strictly construed and prohibited in almost every case. I only allow 
two exceptions for any type of late-term abortion procedure: The life 
of the mother, and where the mother faces grievous physical injury if 
she goes through the pregnancy.
  I said in an amendment I brought to the floor, just to make certain 
we know what we are doing, two doctors have to certify that either her 
life is at stake or, in fact, she runs the risk of grievous physical 
injury. I can stand behind that. I can say in good conscience that 
those are the only two exceptions for which I will stand.
  But the bill before us today does not allow those two exceptions. If 
a mother faces the possibility of grievous physical injury if she 
continues the pregnancy, this bill will still ban a procedure which 
some doctors believe is best for her under those circumstances. 
Consider that for a moment. Consider what we are saying. Even if the 
woman faces grievous physical injury, she has to continue the 
pregnancy, or at least seek some other way of terminating the pregnancy 
that might not be as good for her.
  Don't take my word for it. Again, I am a lawyer, I am a legislator. 
But the American College of Obstetricians and Gynecologists was asked 
about this procedure, and this is what they said. When abortion is 
performed after 16 weeks, intact D&X, which is what is called partial-
birth abortion here, is one method of terminating a pregnancy. This is 
the important language from the professionals, from the obstetricians 
and gynecologists. Listen closely:

       The physician, in consultation with the patient, must 
     choose the most appropriate method based upon the patient's 
     individual circumstances.

  If it were your wife whose life was at stake, whose physical well-
being were at stake, isn't that the standard you would want, that the 
doctor and your wife and family would make the best decision, 
appropriate to her medical circumstances? There is no doubt in my mind. 
There is no doubt in the minds of the women who have come to tell me of 
the sad stories of their pregnancies that ended so badly.
  Yet in this bill we are saying, as politicians and legislators, we 
want to step into that room in the doctor's office, we want to stand 
between the doctor and the patient, and we want to make the decision. 
We want to say to that doctor, regardless of what you think is best for 
this woman who faces grievous physical injury if she goes forward with 
the pregnancy, regardless of what is best for her in your medical, 
professional opinion, we are going to take away from you one procedure 
which you can use. It might be the best one for her, but it is not the 
best one politically. That is why this bill is before the Senate. That 
is a sad circumstance.
  In one of the most frightening times in a woman's life, when she is 
so late in her pregnancy that they have decorated the room for the 
baby, picked the name, they know what they will do when the baby comes 
home, she gets the tragic news that something has happened no one 
anticipated. One of the ladies from my State came forward. I met her a 
few years ago. Vicki talked about having two children and a third child 
on the way. Here she was, late in her pregnancy. She described the 
pregnancy as disgustingly normal. At 32 weeks in the pregnancy, 8 
months into the pregnancy, she went in for an ultrasound and discovered 
the little boy she was carrying had at least 9 major anomalies, 
including a fluid-filled cranium with no brain tissue at all, 
compacted, flattened vertebrae, congenital hip dysplasia, skeletal 
dysplasia, and hyperteloric eyes. The doctor told her this baby will 
never survive outside the womb and because of her physical condition he 
said she should terminate the pregnancy if she wanted to live and if 
she ever wanted to have another child.
  Her husband, a doctor, sat down with her. They told me, personally, 
of crying through the night, making this decision and finally deciding 
they had to do this. And they did. She terminated this pregnancy with 
the very procedure that is being banned by this bill. She did it 
because she thought she had no choice. The doctor told her she had no 
choice. Frankly, if this bill passes, that procedure would not be 
available to her.
  What has happened to Vicki since? The good news is she became 
pregnant again and she delivered a son, Nicholas, a little boy I met 
right outside the Capitol. This is a woman who did not want to be a 
mother, who did not want to be pregnant? No. It is a woman who, through 
no fault of her own, found herself facing a medical emergency and 
deciding at the last moment, with her husband and her conscience, what 
was the best thing to do. She chose the very procedure which is going 
to be banned and prohibited by this bill.
  That is unfortunate. There has been so much publicity back and forth 
about abortion procedures. Trust me, there is no way to terminate a 
pregnancy which is clean and sanitary and something you would want to 
publicize on television. It is a gruesome procedure at any stage in the 
pregnancy. Yet we have been led to believe this termination of 
pregnancy is somehow much different.
  When I came before the Senate and said, all right, I will go along 
with terminating all late-term abortion procedures except when the 
mother's life is at stake or she is running the risk of grievous 
physical injury, we will require two doctors to certify that and will 
penalize a doctor if he misrepresents or lies about that, I thought, 
finally, we found a reasonable middle ground. Those who are opposed to 
virtually all abortions still would not vote for that amendment. Even 
though we had support of people who are pro-life and pro-choice, they 
could not support it.
  The Supreme Court, across the street, has told us what happens to 
bills such as the one we are passing today. If you do not include a 
provision in there to consider the health of the mother, grievous 
physical injury, for example, if you do not include that provision, 
then you fail by the Roe v. Wade test.

[[Page 25406]]

  Do not ask this Senator to stand here and make this statement with no 
evidence. The Court already mandated that decision in Stenberg v. 
Carhart. Nebraska, in that case, struck it down, with virtually the 
same language before the Senate today. They said it lacks any exception 
for the preservation of the health of the mother. This bill lacks any 
exception for the preservation of the health of the mother.
  Why are we here today? Because some people understand that 
regenerating this issue on a regular basis is good for some 
politically. But it is not good for this Nation, not to have closure on 
an issue or at least some reasonable compromise where we can limit all 
late-term abortion procedures.
  There are some who are opposed to all forms of abortion. I respect 
their point of view. I respect the principles that bring them to that 
decision. But for those who believe, as I do, that abortion should be 
rare and should be safe, that we should limit it to the most 
extraordinary cases, particularly late-term abortions, I offered an 
amendment to do that. It was rejected. Instead, we have this bill 
coming before the Senate, headed to the Supreme Court, which does not 
include the exception necessary to protect the health of the mother--
protect the health of the mother I met, a woman who faced an 
extraordinary medical emergency.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Ohio is recognized for 10 minutes.
  Mr. DeWINE. Mr. President, I thank my friend and colleague from 
Pennsylvania, Senator Santorum, Senator Brownback, Senator Graham, 
Majority Leader Frist, also my colleague, Senator Allard, who spoke 
just a moment ago, for their unending and unwavering efforts to put a 
permanent end to this horrible partial-birth abortion procedure.
  We are here today because a civilized society cannot tolerate this 
type of procedure. With all due respect to my colleague, my friend from 
Illinois, this is not about politics. This is about what kind of a 
society we have, what kind of a country, what kind of a people we are.
  This will be the third time for the Senate and the Congress to vote 
to ban this inhumane procedure--a procedure which, I point out, has 
absolutely no medical purpose. Time and time again, the testimony we 
heard in front of our Judiciary Committee is this procedure is never--I 
repeat, never--medically indicated. I also point out, just to make sure 
there is a a provision in this bill that provides for a life-of-the-
mother exception, the testimony time and time again from all the 
experts was this is never medically indicated.
  This has been before the Senate before. We have voted on this before. 
The difference today is after Congress votes to ban this procedure this 
time, this time the President of the United States will sign this bill 
into law. Soon, once this becomes the law of the land, the abortionist 
will not be able to legally perform this brutal act on our society's 
most innocent victims. Once this becomes the law of the land, the 
abortionist will no longer pull living babies feet first out of their 
mother's wombs, puncturing their skulls and sucking out their brains. 
Those are the facts, much as we hate to talk about them.
  I have come to the Senate before and talked about different specific 
stories. I have talked about the story of Baby Hope. The stories of 
little children like Baby Hope will no longer occur. I described before 
in the Senate in detail the story of Baby Hope. This was the story 
where the abortionist, Dr. Mark Haskell, in Dayton, OH, inserted, as he 
has done thousands of times, a surgical instrument into this little 
child--in this case, Baby Hope--into Baby Hope's mother to dilate her 
cervix so Baby Hope could eventually be removed and killed. In this 
case, Baby Hope's mother went home to Cincinnati expecting to return 3 
days later to Dayton for the completion of the procedure. This is a 3-
day procedure. In this case, the mother's cervix dilated too quickly 
and as a result Baby Hope was actually born but died shortly 
thereafter.
  Mr. President and Members of the Senate, on the death certificate 
there is a space for the cause of death or ``Method of Death.'' In Baby 
Hope's case, the method of death is written in with the word 
``natural.'' Well, that, of course, is simply not true. There is 
nothing natural about the events that led to the death of this tiny 
little child. We all know that Baby Hope did not die of natural causes.
  We cannot nor should we ever forget this tragedy, nor others like it 
as recounted by medical professionals.
  My colleagues may recall the story of Brenda Pratt Shafer, a 
registered nurse who was assigned to Dr. Haskell's abortion clinic one 
morning in the early 1990s. I have told this story on the Senate floor 
many times.
  Nurse Shafer observed Dr. Haskell use the partial-birth abortion 
procedure to abort babies that day. In fact, she testified before our 
Senate Judiciary Committee in 1995.
  I would like to share with my colleagues again--and I pray that this 
time will be the final time we have to tell this story on the Senate 
floor--exactly what the nurse saw and what she testified to in front of 
the Judiciary Committee.
  Nurse Shafer gave very gripping, very telling, very truthful 
testimony. This is what she said. She described the partial-birth 
abortion she witnessed on a child that was 26\1/2\ weeks. This is what 
she said:

       The young woman was 18, unmarried, and a little over six 
     months pregnant. She cried the entire three days she was at 
     the abortion clinic. The doctor told us, ``I'm afraid she's 
     going to want to see the baby. Try to discourage her from it; 
     we don't like them to see the babies.''

  The nurse continues:

       Dr. Haskell went in with forceps and grabbed the baby's 
     legs and pulled them down into the birth canal.
       Then he delivered the baby's body and arms--everything but 
     the head. The doctor kept the head right inside the uterus. 
     The baby's little fingers were clasping and unclasping and 
     his little feet were kicking.
       The baby was hanging there, and the doctor was holding his 
     neck to keep his head from slipping out. The doctor took a 
     pair of scissors and inserted them into the back of the 
     baby's head, and the baby's arms jerked out in a flinch, a 
     startle reaction, like a baby does when he thinks he might 
     fall. The doctor opened up the scissors, stuck a high-powered 
     suction tube in the opening and sucked the baby's brains out.

  The nurse continues:

       Now the baby went completely limp. We cut the umbilical 
     cord and delivered the placenta. He threw the baby in a pan 
     along with the placenta and the instruments he had just used. 
     I saw the baby move in the pan.
       I asked another nurse and she said it was just reflexes. 
     The baby boy had the most perfect angelic face I think I have 
     ever seen in my life. When the mother started coming around, 
     she was crying--``I want to see my baby.''

  ``I want to see my baby.''

       So we cleaned him up and put him into a blanket. We put her 
     in a private room and handed her the baby. She held that baby 
     in her arms and when she looked into his face, she started 
     screaming--``Oh my God, what have I done? This is my baby.''

  Soon we will rest more easily knowing we are very near the end, very 
near the day when we do not have to retell Nurse Shafer's story--the 
day when my colleagues, such as Senators Santorum and Brownback and 
Graham and Majority Leader Frist and the rest of us who have fought 
this battle, will not have to come to the Senate floor and talk about 
partial-birth abortion. Nobody wants to talk about this act. Nobody 
wants to tell the story, to tell Nurse Shafer's story.
  Now is finally the time we will ban this horrible, horrible 
procedure. I look forward to this forthcoming vote in just a few hours 
and our subsequent delivery of this bill to the President for his 
prompt signature.
  This is the right thing to do. The facts are there. The facts are 
that this procedure is not medically indicated; it is not medically 
necessary. We should be judged, I believe, not just by what we do in 
society; I think we also should be judged by what we put up with, by 
what we tolerate.
  I say to my colleagues, no civilized society should tolerate this 
type of action. We should say today, by our vote, we simply will not 
tolerate this, that this is wrong. We cannot allow this to continue in 
this great country of ours.
  Mr. President, I thank the Chair and yield the floor.

[[Page 25407]]

  The PRESIDING OFFICER (Mr. Crapo). Who yields time?
  The Senator from California.
  Mrs. BOXER. Mr. President, could you tell us how much time remains on 
Senator Santorum's side and how much time remains on our side?
  The PRESIDING OFFICER. The Senator from Pennsylvania has 38 minutes 
remaining. The Senator from California has 58\1/2\ minutes remaining.
  Mrs. BOXER. Would the Presiding Officer be so kind as to tell me when 
I have used 20 minutes?
  The PRESIDING OFFICER. Yes.
  Mrs. BOXER. Thank you very much.
  Mr. President, you have heard a tragic story here of a woman who had 
an abortion who really did not want to have one. I have to tell you, 
that is why I am so proud to be a pro-choice Senator, a pro-choice 
American, a pro-choice Californian, fighting for that woman's right to 
never, ever, ever have to have an abortion if she decided she did not 
want one.
  At the same time, I want the other side to understand that Roe v. 
Wade is the law of the land and that at the early stages of a pregnancy 
Government should stay out of a personal, private, moral, and religious 
decision. That is exactly what being pro-choice means. It means the 
woman described by my friend must never be forced to have an abortion, 
ever, no matter what goes wrong with the pregnancy--no matter what--if 
she insists on going through with it and wanting to have that child. 
Regardless of the risk to her health, she has the right to do it. That 
is what being pro-choice is about. Being anti-choice means that 
Government will dictate that situation.
  What we have here today and why our side has decided we wanted to 
have another debate on this is because, just as the other side has 
said, the anti-choice side has said this is a historic day, we agree. 
This is, indeed, a historic day because, for the first time in history, 
Congress will be banning a medical procedure that is considered 
medically necessary by physicians, physicians who know. And we will put 
those statements in the Record once again.
  My colleague, Senator DeWine, very eloquently said this debate is 
about what kind of a country we are. That is true. What kind of a 
country would say to half of its population, ``We don't trust you; We 
think you would choose murder''? What kind of a country would say to 
its doctors, who take the Hippocratic oath, ``Do no harm. We don't 
trust you. You are going to jail''? In this bill, they will go to jail 
if they use this technique and it was not to save the life of a mother.
  Imagine the circumstance where a doctor is making this decision: I 
think my patient might die if I don't use this. My God, I have to read 
the law. Oh, my God, she might live. How could I be sure? I am not 
positive. I think she might die.
  That woman lying in front of that doctor is in great danger. That is 
why so many medical organizations and OB/GYNs are saying: Please, 
Senators, stop playing doctor. When we were kids, we had a doctor's 
set. We put on the white coat. If we want to do that, we should go get 
our medical degree. But don't stand here and talk about the fact that 
we can just make this a better country by outlawing medical procedures 
without an exception for the health of the woman. What kind of country 
does that? What kind of country says to half of its population: Yes, 
you are important, but if you are lying on the table and you could wind 
up being paralyzed or getting a stroke, you are just not that 
important. What kind of country says that to women? That is why I am 
here today. This bill is going to pass overwhelmingly. We know the 
drill. This President is going to sign it. There is going to be a big 
signing ceremony. There is going to be an immediate court suit. The 
bill will be stayed. The debate will occur across the street in the 
Supreme Court. This bill is the same bill essentially that was declared 
unconstitutional before because the judges understand--maybe better 
than my colleagues over here understand--the life and the health of a 
woman is very important, and it must be protected in accordance with 
the law.
  We have been told by physicians--we have the statements in the 
Record--that by banning this procedure, a woman might get a hemorrhage. 
She might rupture her uterus. She could get very serious blood clots. 
She could get a stroke, an embolism. She could have damage to nearby 
organs. She could be paralyzed for life. Do you want to vote that way? 
You have a chance. If you don't make a health exception, then you are 
essentially saying women are just not that important.
  If you love your mother, don't vote for this bill. If you love your 
daughter, don't vote for this bill. Because if she finds herself in 
this horrific circumstance of a pregnancy gone desperately wrong, where 
the doctor informs her, perhaps, that the baby's brain is outside of 
the skull, that there would be excruciating pain if the baby is born, 
that she could lose her fertility, that she could perhaps suffer a 
stroke, she won't be able to do anything about it. Is that what we want 
to do here in the Senate?
  In many ways this is an exercise in politics, because we believe very 
strongly this bill will be overturned when it gets across the street. 
It is not an exercise I take lightly when colleagues think so little of 
the women of this country, of the mothers of this country, of the 
daughters of this country that they would pass a bill with no health 
exception.
  I don't think that is what Americans want. When they really 
understand this, they turn against it. If you hear it without the full 
explanation, of course we say: Let's not do this procedure. But if you 
say, but it may be necessary to save the life or health of a woman, 
people say: OK, then at least allow it in those circumstances.
  There isn't a Democrat on this side of the aisle who wouldn't have 
voted for a health exception along with a life exception, and this 
procedure would be banned. As a matter of fact, we have proposed--and I 
have written legislation--banning all late-term abortions except for a 
health exception and a life exception.
  We all come here and say we know what Americans want. It is 
interesting because, of course, we are trying to determine that. 
Senator Sessions had a poll that said women in this country no longer 
want the right to choose. That is what he said. I have a poll that 
shows everyone in this country believes Roe is a fair balance and 
should continue. But let me tell you what I think Americans want. Let 
me tell you what I know Californians want. I don't speak for every 
Californian. I couldn't. There are 35 million of us. But the vast 
majority of us--and we have had amazing polls on this point--want 
American women protected. They want children protected. They want 
privacy protected. They want women respected. They trust women more 
than they trust Senators. They want us to do the right thing, and they 
know what the right thing is.
  They understand Roe v. Wade took a very difficult decision and 
explained it in a way that is a balance between all the rights 
involved.
  Here is what Roe v. Wade essentially says: In the first 3 months 
after pregnancy, a woman has the right to choose and the Government 
cannot get involved. After that, the Government can get involved. As a 
matter of fact, after viability, the Government could ban all abortion, 
which I support, except for the life or health of a woman. I happen to 
believe that was a Solomon-like decision. It balanced all the concerns. 
But the most important thing it did is it respected women for the first 
time.
  This was a struggle. Women died. The Senator from Pennsylvania says 
it was only 85 women a year who died before Roe. We have evidence and 
we have articles to put in the Record today that will show you we 
believe the 5,000-a-year figure is more on the mark, because the 85 is 
only a report to the CDC from States where abortion was legal and in 
many States abortion was illegal in those years. Thousands of women 
died.
  As I said before, let's face it, that is what the underlying tension 
is in the debate, because this particular procedure is done very 
rarely. What is really at stake here is Roe v. Wade.

[[Page 25408]]

  How do I know that? I know it because of the language used on the 
other side over and over again: Killing children, killing children, 
killing children. My God, as someone who wrote the Violence Against 
Children Act, I have to hear people talk about the fact that women are 
out there every day killing children, that doctors are out there 
killing children.
  Roe v. Wade is not about killing children. Roe v. Wade is about 
respecting women to say this is a moral issue. This is a religious 
issue. This is a family issue. This is a privacy issue. Government 
should stay out in the early stages. In the later stages, government 
can in fact legislate.
  If you take the rhetoric used in the Chamber today and you 
extrapolated it in a logical fashion, it means the other side thinks 
all abortion is murder from the minute of conception. If there is a 
murder committed, there is a murderer, and you have to say that is the 
woman because, if you listen to their rhetoric, that is what it is 
about. The doctor is an accomplice in this act. Frankly, I would have 
more, shall we say, legislative respect for my colleagues--I have 
personal respect for them, but I would have more legislative respect 
for them--if they just came out and said, call it what it is: Abortion 
is murder. That is why we threw out the Harkin amendment that was in 
this bill supporting Roe. We think abortion is murder. We want women in 
jail. We want doctors in jail. Maybe they even want the death penalty 
for a woman. I don't know. I haven't probed them on it.
  That is really what this debate is about. It is why it is important 
to take the debate to the American people. The beauty of being pro-
choice is you totally respect the woman regardless of her view.
  If she is 18 years old, or 17, or 19, and she wants to have that 
child, a pro-choice American says: What can we do to help you make it 
easier? But if she doesn't and it is something she wants to deal with 
very early in the pregnancy, then just the same way, we say it is your 
choice; we respect that choice.
  This debate is a very important one, a very historic debate. It is 
true that this bill has passed several times. We expect it to pass 
today. But this is the first President who will ever sign a bill 
outlawing a medically necessary procedure.
  Now, I am going to prove it is a medically necessary procedure 
because I am going to put in the Record a series of letters. First is 
the ACOG statement, the American College of Obstetricians and 
Gynecologists. We can play doctor all we want here. These are the folks 
who are out there birthing our children, out there telling us month 
after month, as we go back for our checkup when we are pregnant, how 
important it is to have good nutrition, not to smoke, not to have 
alcohol, how to protect that fetus and have a healthy baby. These are 
the people who want healthy babies born. What do they say? They say:

       The intervention of legislative bodies into medical 
     decisionmaking is inappropriate, ill-advised, and dangerous.

  I will repeat that. The obstetricians and gynecologists from all over 
this country told us that:

       The intervention of legislative bodies into medical 
     decisionmaking is inappropriate, ill-advised, and--

  The last word is powerful--

     dangerous.

  This bill, if it is upheld by the Court--which I don't believe it 
will be--is putting women's lives in danger. Don't ask me; ask the 
doctors. The testimony of Anne Davis is clear. She is a physician. She 
is very eloquent on the point. She even says that the life exception in 
the bill is very narrow, which is something I agree with, but I hope 
the Court will look at that. She says this procedure that is about to 
be banned by this bill may well be the safest procedure for women in 
certain circumstances. She was very clear in her testimony.
  I commend to my colleagues her testimony on March 25, 2003, before 
the House Subcommittee on the Constitution.
  Mr. President, the American Public Health Association writes:

       We are opposed to [this bill] because we believe this and 
     other legislative and judicial restrictions to safe, 
     medically accepted abortion procedures severely jeopardize 
     women's health and well-being.

  You are going to hear my colleagues on the other side say: This bill 
doesn't hurt women's health--not a problem, not an issue. This bill 
doesn't conflict with Roe. Why? Because they wrote in the findings that 
this bill has nothing to do with the health of a woman. Please. Give 
women just a little bit of credit here.
  So here is the American Public Health Association clearly telling us 
why they believe this is a jeopardy to women's health and their well-
being.
  Then we have the American Medical Women's Association in a letter 
they wrote to us. They strongly oppose this ban, and this is what they 
say, because I think it is a very important thing they say here:

       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 [this bill] is unconscionable.

  Doctors are telling us this bill is ``dangerous.'' These doctors are 
telling us that this bill puts women's health ``in jeopardy.'' Doctors 
are telling us loudly and clearly that this bill is ``unconscionable.'' 
But it is going to be passed and it will get the signature of the 
President and, if not overturned, it is going to hurt the women of our 
country.
  They go on to say:

       Legislative bans for procedures that use recognized [OB/
     GYN] techniques fail to protect the health and safety of 
     women and their children, nor will it improve the lives of 
     women and families.

  I ask unanimous consent to have this letter printed 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 
     decision 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 health 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

[[Page 25409]]

     please contact Meghan Kissell, at 703-838-0500.
           Sincerely,
                                                 Lynn Epstein, MD,
                                                        President.

  Mrs. BOXER. Then you have the Physicians for Reproductive Choice and 
Health. They make a very good point--a point we have made over and over 
again: 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 cannot even define it, which is one of 
the things the Court said was too vague a definition. So why do you 
think my colleagues are banning something called partial-birth abortion 
when there is no such thing, according to physicians, as partial-birth 
abortion? I will give you 10 seconds to think it over.
  The PRESIDING OFFICER. The Senator has used 20 minutes.
  Mrs. BOXER. I ask unanimous consent for 10 additional minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. I gave you 10 seconds to think about why we are banning 
something called partial-birth abortion when there is no such medical 
procedure. The answer is, it is a highly charged bunch of words. There 
is no such thing as partial-birth abortion in the medical literature; 
you either have a birth or an abortion. But it charges people up. It 
gives you a picture that is not accurate.
  This is what the Physicians for Reproductive Choice and Health tell 
us:

       Physicians need to have all medical options available in 
     order to provide the best medical care possible. It is 
     unethical and dangerous--

  There is the word again ``dangerous''--

     for legislators to dictate the details of specific surgical 
     procedures. Banning procedures puts women's health at risk.

  ``Risk,'' ``danger,'' ``jeopardy,'' and ``unconscionable'' are the 
words that go along with this bill. They are not my words. They are 
words of physicians who have lived their life to help women have 
babies. That is what they are about.

       Politicians should not legislate decisionmaking by doctors.

  They call it medical decisionmaking.

       To do so would violate the sanctity and legality of the 
     physician-patient relationship. To falsify scientific 
     evidence in an attempt to deny women their right is 
     unconscionable.

  There it is. ``Unconscionable,'' ``dangerous,'' ``jeopardy,'' and 
``at risk'' are the words we are being told. But we are going to vote 
for this bill because it is about politics. It is easy to say I cannot 
buy this procedure. We could have banned it completely. We could have 
banned all late-term abortion completely with a life exception, health 
exception. But, oh, no, I think the other side would rather have an 
issue than make progress. That is not just me talking, that is very 
anti-choice people who have said this is going to be overturned across 
the street in 5 minutes.
  I ask unanimous consent to print this letter from Physicians for 
Reproductive Choice and Health in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       Physicians for Reproductive


                                            Choice and Health,

                                                     New York, NY.
     Hon. Jerrold Nadler,
     House of Representatives,
     Washington, DC.
       Dear Congressman Nadler: We are writing to urge you to 
     stand in defense of women's reproductive health and vote 
     against H.R. 760, legislation regarding so-called ``partial 
     birth'' abortion.
       We are practicing family physicians; obstetrician-
     gynecologists; academics in obstetrics, gynecology and 
     women's health; and a variety of other specialties in 
     medicine. 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 
     decision-making in 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 refine 
     surgical techniques, it is always for the best interest of 
     the patient. The risk of death associated with childbirth is 
     about 11 times as high as that associated with abortion. 
     Abortion is proven to be one of the safest procedures in 
     medicine, significantly safer than childbirth, and in fact 
     saves 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 the 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 nay abortion 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 the details of 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 medical decision-
     making.
       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 Gynecologists, 
     representing 45,000 ob-gyns, agrees: ``The intervention of 
     legislation 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 after the first 
     trimester, 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 D&E is similar to first-
     trimester vacuum aspiration exception that the cervix must be 
     further dilated because surgical instruments are used. 
     Morbidity and mortality studies indicate D&E is preferable to 
     labor induction methods (instillation), hysterotomy and 
     hysterectomy because of issues regarding complications and 
     safety.
       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.
       Morbidity trends indicate that dilation and evacuation is 
     much safer than labor induction procedures and for women with 
     certain medical conditions, labor induction can pose serious 
     risks. Rates of major complications from labor induction, 
     including bleeding, infections, and unnecessary surgery, were 
     at least twice as high as those from D&E. There are instances 
     of women who, after having failed inductions, acquired 
     infections necessitating emergency D&Es as a last resort. 
     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 can be 
     extremely emotionally and psychologically difficult,

[[Page 25410]]

     much more so than a surgical procedure that can be done in 
     less than an hour under general or local anesthesia. 
     Furthermore, labor induction does not always work: Between 15 
     and 30 percent or more 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). There is a limited medical literature on D&X because 
     it is an uncommonly used variant of D&E. 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, to speed up the 
     grieving process; it provides a greater chance of acquiring 
     valuable information regarding hereditary illness or fetal 
     anomaly; and D&E provides 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 decreased chance of uterine perforations or tears 
     and cervical lacerations. The American College of 
     Obstetricians and Gynecologists addressed this in their 
     statement in opposition to so-called ``partial birth'' 
     abortion when they said that D&X ``may be the best or most 
     appropriate procedure in a particular circumstances to save 
     the life or preserve the health of a woman, and only the 
     doctor, in consultation with the patient, based on the 
     woman's particular circumstances, can make this decision.''
       It is important to note that these procedures are used at 
     varying gestational ages. Both D&E and D&X are options for 
     surgical abortion prior to viability. 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 H.R. 760, 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,
                                                Member Physicians.

  Mrs. BOXER. Mr. President, I am going to read you the story of Viki 
Wilson. Viki is a pediatric nurse. She lives in California. Her husband 
Bill is an emergency room physician. The Wilsons were expecting their 
third child when they received a devastating diagnosis at 36 weeks of 
pregnancy.
  I hope every colleague will listen to this story and, for a moment, 
think about this couple and what they faced.
  Viki was married to an emergency room physician. They were told after 
36 weeks of pregnancy, of looking forward to this baby, that a large 
portion of the brain was formed outside the skull and most of the 
baby's tissue was abnormal. They were told by several physicians, 
including geneticists and perinatologists that their daughter they 
named Abigail could never survive outside her mother's womb, and that 
the so-called healthy baby kicks that Viki had thought for sure she was 
feeling were, in fact, seizures caused by the pressure as the baby's 
head had lodged in her pelvis.
  Think about how you would feel if you were that father, if you were 
that mother, if you were that grandma, if you were that grandpa, if you 
were the mother of Viki or the mother-in-law or the father or the 
father-in-law or you were the brother of Viki or you were the brother-
in-law or you were the sister or you were the aunt. They learned this 
pregnancy was doomed. They learned the baby they wanted so much could 
never live outside the womb. They learned the risks of this continued 
pregnancy to Viki, the very severe risks she faced.
  They decided this procedure that is being banned today was the safest 
and best procedure for Viki. They talked about it; they prayed on it; 
they discussed it with their family; they discussed it among themselves 
with their physicians. They brought in every specialist one can think 
about, and they decided this was the best thing for Viki's family and 
for her children and for her children she hoped to have in the future.
  The Wilsons held a funeral for Abigail, and a playground at their 
children's Catholic school is named in her honor. And then, very soon 
after, the Wilson family welcomed a baby son, actually through 
adoption. Is this the kind of person you want to harm? Is this the kind 
of woman you want to put at risk? Is this the kind of couple to which 
you are saying: Sorry, even if your doctors say Viki might have a 
stroke, Viki might be paralyzed, no can do; we can't help you because 
Senators playing doctor decided this procedure should no longer be a 
choice, an option for a woman in a severe and tragic circumstance.
  I have to tell you, I have looked inside my heart up and down. I do 
not understand how we move forward as a society, how we move forward as 
a compassionate country when we do something that can conceivably hurt 
thousands and thousands of women and thousands and thousands of 
families. We could have passed this bill in a nanosecond. Just make a 
health exception. It would have met the objections of the Court with 
the health exception and a little bit less vagueness on the procedure, 
and we would have done something that would have been important. But, 
oh, no, I guess in the end the women of this country just don't matter 
that much.
  I think this record is very clear. The physicians who know what they 
are talking about, who deal with these pregnancies every day don't want 
us to do this. The women, many of them very religious, who have been 
faced with this crisis tell us: Please, please make a health exception 
because if we didn't have this procedure, A, we might have died; B, we 
might have been paralyzed; C, we might have been made infertile; D, we 
might have had a stroke or embolism or damaged our nearby organs.
  Why are we doing this? There is no such procedure called ``partial-
birth abortion.'' It is in every letter from the physicians. There is 
no such procedure. It is a made-up term to make this debate what it 
really is not about. It is a very sad day for us that we are banning a 
procedure that I have proven, by putting into the Record letter after 
letter from physicians, is necessary sometimes to save the life and 
health of a woman. We are banning this with no health exception. This 
is not the right thing to do.
  This bill was stripped of the supportive language of Roe v. Wade that 
this Senate passed twice--not once but twice--saying that Roe v. Wade 
should remain the law of the land. Oh, no, they were so radical in that 
conference committee, they kicked out that very simple statement where 
most Americans agree that Roe v. Wade, making this decision in the 
early stages of a pregnancy in private--Government stay out of it; 
Senator Boxer, I might think you are really a good gal, but stay out of 
my private life. They are right. I don't deserve to be in it.
  Senator Harkin has just come to the Chamber. He is the one who had 
that amendment which was adopted by this Senate twice, and how proud I 
was to stand with him. I wonder if it is OK with my colleagues, since 
Senator Harkin has arrived, if I give him 10 minutes.
  Mr. President, can Senator Harkin take about 10 minutes? Does the 
Senator want more time?
  Mr. HARKIN. Yes, if I can have a couple minutes.
  Mrs. BOXER. Fifteen minutes, 20? I yield up to 20 minutes to the 
Senator from Iowa.
  The PRESIDING OFFICER. The Senator from Iowa is recognized for up to 
20 minutes.
  Mr. HARKIN. Parliamentary inquiry.
  The PRESIDING OFFICER. The Senator will state his inquiry.
  Mr. HARKIN. Mr. President, are we under time constraints on this 
measure?
  The PRESIDING OFFICER. Yes, we are.
  Mr. HARKIN. Will the Chair please state for the Senator what the 
situation is right now in terms of this conference report?

[[Page 25411]]

  The PRESIDING OFFICER. The Senator from California has 27\1/2\ 
minutes. The Senator from Pennsylvania has 37, almost 38 minutes.
  Mr. HARKIN. I thank the Presiding Officer.
  Mr. President, I wish to take a few minutes to talk about this 
pending measure. First and foremost, I applaud the Senator from 
California, Mrs. Boxer, for her unwavering leadership and commitment in 
protecting a woman's right to privacy and to choose. No one has fought 
harder and longer, both in the House and in the Senate and in all of 
their public life, to protect a woman's right to choose than Senator 
Boxer of California.
  Senator Boxer has my highest esteem for all the work she has done to 
make sure that the women of this country are not controlled by 
ideology, by one religious belief, or by the actions of a male-
dominated Senate and House of Representatives and, I might add, now a 
male-dominated Supreme Court.
  We are going to vote this afternoon on this so-called late-term 
abortion bill. I have serious questions about whether it will pass 
constitutional muster. I don't believe it will. So what we are doing is 
really a political exercise. This is what I call something to go out 
and get the vote for, by exciting passions, arousing fears, and by 
trying to state in overblown terms what this is all about.
  The bottom line and what it really comes down to is whether or not 
the health of the mother is a constitutionally protected right of women 
in this country.
  In 2000, the U.S. Supreme Court said similar State legislation was 
not constitutional because it lacked a health exception. It was not 
constitutional because there was no protection for the health of the 
mother. So what does the Senate and the House do? Pass legislation that 
still lacks the health exception. That is why it is unconstitutional.
  I am also very disappointed that the conferees stripped from the bill 
my sense-of-the-Senate resolution about a woman's right to privacy. I 
had offered, as I had before, a simple statement that it was the sense 
of the Senate that we supported the Roe v. Wade Supreme Court decision 
and it should not be overturned. It passed 52 to 46. It was attached to 
this late-term abortion bill which also passed the Senate. The Senator 
from California said the conference took less than 5 minutes to drop my 
resolution, without discussion.
  Roe v. Wade is the moderate, mainstream policy American women have 
come to rely on, and it took the conferees less than 5 minutes, without 
discussion, to drop it. What that says to me is very startling. 
Congress has turned its back on America's women--their right to 
privacy, their right to choose. America's women are now second-class 
citizens.
  Let me again give a brief review of what I am talking about. On 
January 22, 1973, the U.S. Supreme Court announced its decision in Roe 
v. Wade, a challenge to a Texas statute that made it a crime to perform 
an abortion unless a woman's life was at stake. That was the Texas law. 
The case had been filed by Jane Roe, an unmarried woman who wanted to 
safely and legally end her pregnancy. Siding with Roe, the Court struck 
down the Texas law. In its ruling, the Court recognized for the first 
time the constitutional right to privacy ``is broad enough to encompass 
a woman's decision whether or not to terminate her pregnancy.''
  It also set some rules. The Court recognized the right to privacy is 
not absolute and that a State has a valid interest in safeguarding 
maternal health, maintaining medical standards, and protecting 
potential life. A State's interest in ``potential life'' is not 
compelling, the Court said, until viability, the point in pregnancy at 
which there is a reasonable possibility for the sustained survival of 
the fetus outside of the womb.
  A State may but is not required to prohibit abortion after viability, 
except when it is necessary to protect a woman's life or health.
  That is what my resolution was all about, to say we agree that Roe v. 
Wade was an appropriate decision and should not be overturned.
  Before the 1973 landmark ruling of Roe v. Wade, it is estimated that 
each year 1.2 million women resorted to illegal abortions, despite the 
known hazards of frightening trips to dangerous locations in strange 
parts of town, of whiskey as an anesthetic, of ``doctors'' who were 
often marginal or unlicensed practitioners, sometimes alcoholic, 
sometimes sexually abusive, unsanitary conditions, incompetent 
treatment, infection, hemorrhages, disfig-
uration, and death. By invalidating laws that forced women to resort to 
back-alley abortions, Roe was directly responsible for saving women's 
lives.
  It is estimated as many as 5,000 women died yearly from illegal 
abortions before Roe. Only 10 pieces of legislation were introduced in 
either the House or the Senate before the Roe decision, but in the 30 
years since the ruling more than 1,000 separate legislative proposals 
have been introduced. The majority of these bills have sought to 
restrict a woman's right to choose.
  Unfortunately, what is often lost in the rhetoric and in some of 
those proposals is the real significance of the Roe decision. The Roe 
decision recognized the right of women to make their own decisions 
about their own reproductive health.
  The decision whether to bear a child is profoundly private and life 
altering. As the Roe Court understood, without the right to make 
autonomous decisions about pregnancy, a woman could not participate 
freely and equally in society. Roe not only established a woman's 
reproductive freedom, it was also central to women's continued progress 
toward full and equal participation in American life.
  In the 30 years since Roe, the variety and level of women's 
achievements have reached a higher level. As the Supreme Court observed 
in 1992:

       The ability of women to participate equally in the economic 
     and social life of the Nation has been facilitated by their 
     ability to control their reproductive lives.

  As I have often said, the freedom to choose on the part of women is 
no more negotiable than the freedom to speak or the freedom to worship 
in our Constitution.
  I do not believe any abortion is desirable. I do not think anybody 
does. I have struggled with this issue all my adult life as a father. 
However, I do not believe it is appropriate to insist my personal views 
be the law of the land and that I impose those on anyone else. So I 
urge my colleagues to vote against the final bill, first because it is 
unconstitutional, but also because by dropping the resolution we 
adopted saying Roe v. Wade should continue to be the law of the land, 
it sends the wrong message to American women. What it says is they are 
not equal to men. They cannot make decisions for themselves. We men 
will make those decisions for them. They do not have the same 
protections under the Constitution in this bill. Somehow they are 
second-class citizens.
  I say to the women of this country, as I have said before on the 
floor, they must be concerned about this.
  We passed the resolution on Roe v. Wade 52 to 46. Well, that was a 
win, I guess one might say, for upholding the belief that Roe v. Wade 
continue to be the law of the land, but 46 Senators basically voted to 
say Roe v. Wade ought to be overturned, that it should not be the law 
of the land, that we need to go back in time to prohibit all abortions, 
regardless.
  I say to those who may think this is just one particular procedure 
that we are somehow prohibiting here--and again I want to point out, as 
the Senator from California so eloquently pointed out time after time, 
this is the first time in the history of this Senate that Senators have 
decided against a medical procedure, the only time we have somehow put 
on the cloak of knowing better than doctors, professionals, and women 
that somehow we politicians know better.
  Aside from that, if my colleagues think this is all this is about, 
they are sadly mistaken. That is not what this is about. I say to the 
women of America, this is step one. I say especially to young women, 
who sort of take it for

[[Page 25412]]

granted--I mean, Roe v. Wade was 30 years ago, ancient history in the 
United States of America--especially young women who believe, as they 
have grown up, having this freedom to choose, having the right to 
control their own reproductive health, if they think this is something 
that inures to them because they were born in America, they have 
another think coming. There are people who do not want them to have 
that right. There are people in this Senate who want to turn the clock 
back and say women have no right to make any decision on their 
reproductive health. But, then again, isn't that what we had in Texas 
before Roe v. Wade? That is what this country was like before that.
  The Supreme Court said no, there is something else that has to do 
with the health of a woman, too, and a woman's right to control her own 
body and a woman's right to privacy.
  Again, I see where this is going with 46 votes in the Senate. Just 
think, a couple of votes here or there in the next election, you can 
kiss Roe v. Wade goodbye, because that is what will happen. And with 
one or two Justices on the Supreme Court who feel this way, that will 
be the end of Roe v. Wade. That will be the end for women who think 
they have the right to control their own reproductive health in this 
country--to make their own decisions. That is where this is headed.
  I know Senators, many Senators have personal feelings about that. 
Fine. There are Senators who believe very deeply that Roe v. Wade 
should not be the law of the land, who believe it never should have 
been decided that way, who believe that women should not have a right 
over their reproductive health. There are people who believe that.
  Fine, if they want to believe that for themselves, that's their 
belief structure. But in this pluralistic society in which we live, in 
which we respect each other's rights but do not try to impose our own 
personal religious or moral beliefs on others, the Supreme Court really 
did, in fact, reach a logical and I think fair and balanced approach.
  Yet there are those who want to strip that away--that no matter 
what--a woman does not have the right to make her own decisions and the 
right to privacy. And what does that mean? Well, it will mean we're 
going back to the back alley.
  This, really, to me is more than just an issue about some narrow 
procedure, I say to my friend from California. This is about whether or 
not the women of this country are going to be treated as equals with 
men or as second-class citizens. I ask the Senator from California, 
rhetorically, what other times has the Senate said there are certain 
medical procedures which applied to men that cannot be conducted? What 
is next? Is there something else coming down the pike we don't know 
about? I don't think it will affect men but it will affect women. It is 
a holdover from mediaeval times, a holdover from the days in which 
women did not have the right to participate fully in society. That is 
what this is about more than anything else.
  I thank the Senator from California for her courage, for her wisdom, 
for her judgment, and for being so stalwart, making sure we know what 
this battle is about. I think we see the writing on the wall here. It 
is going to pass. It is going to pass. If the Supreme Court adheres to 
its previous decisions, it will throw it out because there is no 
exception for the health of the mother. I guess then there will be a 
political issue to whip up emotions around the countryside.
  I wish we could take emotions out of this and just talk about it on 
the basis of what women want. I will close on this. I have often asked, 
think to yourself, what would happen if we had 100 women sitting here? 
I mean a cross section of America, liberal, conservative, moderate, 
different religions, different ethnic backgrounds--just a good cross 
section of women in America. Do you really think, down deep in your 
heart, this would be passed before the Senate? No way. No way would 
this ever pass. Or, if you had a majority of the women in the House of 
Representatives? Absolutely not.
  Women do make up more than half of our society. I forget, how many 
women Senators do we have now?
  Mrs. BOXER. Fourteen.
  Mr. HARKIN. There are 14 out of 100. So women are drastically 
underrepresented in the body. They are underrepresented on the Supreme 
Court.
  Women have made great strides. Fourteen is more than there were when 
I came here--there were only one or two at the time I came here. They 
are making strides.
  What this says is we are going to turn the clock back. I don't want 
to turn the clock back and neither does the Senator from California. We 
have to make sure women in America have their constitutional right to 
privacy, just like men. That is what this is really about.
  I thank the Senator. I am proud to be on her side.
  I retain the remainder of our time. I yield the floor and retain the 
remainder of my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. I yield 10 minutes to the chairman of the Judiciary 
Committee who has done incredible work on this legislation now for a 
fourth Congress that he has been involved in moving this forward. This 
moment of accomplishment here would not have happened except for the 
great work of the Senator from Utah.
  The PRESIDING OFFICER. The Senator from Utah is recognized for 10 
minutes.
  Mr. SANTORUM. I ask unanimous consent that following the remarks of 
the Senator from Utah, the Senator from California be recognized under 
Senator Boxer's time for 15 minutes.
  The PRESIDING OFFICER. The Senator should be advised----
  Mr. SANTORUM. Mr. President, while I have the floor, let me ask 
unanimous consent that the vote on adoption of the conference report to 
accompany S. 3, the partial-birth abortion ban bill, occur at 5 p.m. 
today, provided that the time between the expiration of the current 
time allocation and 5 p.m. be equally divided between Senators Santorum 
and Boxer or their designees.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Utah is recognized for 10 minutes.
  Mr. HATCH. Mr. President, I rise today because it is difficult for me 
to understand how anybody could support this barbaric, heinous approach 
toward abortion. The Senate passed S. 3, the partial-birth abortion ban 
of 2003, with strong bipartisan support, 64 to 33, back in March of 
this year. The legislation passed the House in June with similarly 
strong bipartisan support, 282 to 139. We were then forced to debate 
the motion to go to conference in September.
  We completed the conference in September. Now we are finally able to 
vote on passage of the conference report. Let's get on with it. This 
has taken a long time in this Congress, but it also has taken 7 years 
to get to this point. Even though the Congress has passed similar 
legislation before, finally we will be able to send it to President 
Bush, who will sign it into law.
  I know the people of my home State of Utah recognize the importance 
of this effort. The vast majority of people in Utah and, I believe, in 
our country, recognize that the practice of partial-birth abortion is 
immoral, offensive, and impossible to justify. This procedure is so 
heinous that even many who consider themselves pro-choice cannot defend 
it.
  Senator Santorum should be applauded for his tireless efforts to 
achieve this goal. His leadership has been essential and very much 
appreciated. I admire his efforts to protect innocent human life, 
especially here, where it is so graphically obvious this procedure 
cannot be defended.
  By now we have all seen Dr. B. Benoit's film of the 3-dimensional 
ultrasound of the baby in utero, yawning and even smiling. This 
appeared in the Evening Standard in London. It is a picture of an 
unborn baby smiling inside the womb. It says: ``Picture Exclusive, 
Proof Babies Smile in Womb.'' It is truly amazing and enlightening what 
advancing technology has enabled us to see. This truly is an incredible 
window into the mother's

[[Page 25413]]

womb, where it has to be clear to all who view it that this is a living 
human being, a living baby.
  Yet there are those who want to protect the ability to violently 
crush this young life. In the case of the procedure we seek to ban with 
this legislation, it is a baby just inches away from being born. Yes, 
inches away from being born.
  For those who may not have a clear understanding of this procedure, 
let me describe it. This is a little graphic, I agree, but we need to 
ensure that the American people understand what is going on. How anyone 
can justify this barbaric procedure is beyond me. A baby is almost 
fully delivered with only her head remaining inside the birth canal 
when the doctor stabs scissors into the base of the baby's skull to 
open a hole into which he then inserts a suction tube and sucks out the 
brain so the skull collapses. Then they pull the baby out and say it is 
not a living human being even though just seconds before this was a 
full human being, a living human being with legs dangling and kicking. 
I honestly do not know how anyone can avoid being truly sickened when 
they see a baby being killed in this gruesome manner. It is not done on 
a mass of tissue but to a living baby capable of living outside the 
womb, capable of feeling pain, and at the time this procedure is 
typically performed, capable of living outside the womb.
  All this legislation does is ban the one procedure. As the testimony 
in the House made clear, the fact is, there is no medical need to allow 
this type of procedure. It is never medically necessary, it is never 
the safest procedure available, and it is morally reprehensible and 
unconscionable.
  As I mentioned when we debated the bill in the spring, we have all 
heard in recent years about teenage girls giving birth and dumping 
their newborns into the trash can. One woman was criminally charged 
after giving birth to a child in a bathroom stall during the prom and 
strangling and suffocating the baby before leaving the body in the 
trash. Tragically, there have been several incidents around the country 
in the past few years. This should not surprise us. This is what 
happens when we continue, as some would do here, to devalue human 
life--those who would like to stop this bill by and large.
  William Raspberry argued in a column in the Washington Post:

     . . . only a short distance [exists] between what [these 
     teenagers] have been sentenced for doing and what doctors get 
     paid to do.

  He got it right. When you think about it, it is incredible that there 
is a mere 3 inches separating a partial-birth abortion from murder. 
Partial-birth abortion simply has no place in our society and rightly 
should be banned. President Bush has described partial-birth abortion 
as ``an abhorrent procedure that offends human dignity.'' With that, I 
wholeheartedly agree.
  Basic human decency, I hope, will prevail. I pray that never again 
will it be legal in this country to perform this barbaric procedure. 
Unfortunately, I am sure the opponents of this measure will seek to 
challenge the law in court where I hope good judgment will ultimately 
prevail.
  In Stenberg v. Carhart, the Supreme Court confirmed:

       . . . by no means must physicians [be granted] unfettered 
     discretion in their selection of abortion methods.

  The House has already passed this conference report. It is time for 
this Congress to finish its work and send this bill to the President 
for his signature.
  Oddly enough, young girls out there, young women, are becoming more 
and more opposed to abortion. I believe it has been this debate, this 
barbaric procedure that is the cause for them to think it through and 
to acknowledge that inside that womb of the mother is a living human 
being, a living baby, and especially one capable of living outside the 
mother's womb.
  This is a serious debate. This is as serious a bill as we can have 
before the Senate. I hope our colleagues will vote overwhelmingly to 
pass the conference report as we simply have to get rid of this 
barbaric and inhumane procedure.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I yield myself 20 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. I rise in opposition to the conference report 
accompanying S. 3 which some, I think inaccurately, call the partial-
birth abortion bill. In fact, this bill, originally introduced by 
Senator Santorum, is more accurately called the unconstitutional anti-
choice bill, given the fact that it is flagrantly unconstitutional and 
its primary result will be to chill second-trimester abortion 
procedures.
  I voted against this conference report in the recent House-Senate 
conference on this bill and also on the floor of the Senate last March.
  This is the first bill since Roe v. Wade in 1973 that outlaws safe 
medical procedures and recriminalizes abortion. It is a major step 
forward in the march to obliterate a woman's right to control her own 
reproductive system and to eviscerate the entire choice movement in 
this country.
  This bill is unconstitutional, I believe, for two reasons. First, it 
uses a vague definition of dilation and extraction abortion, or D&X 
abortion. This technique is also called intact dilation and evacuation, 
or intact D&E. It is also sometimes called, inaccurately, partial-birth 
abortion.
  The sponsors of the bill have refused to use a definition of D&X that 
I suggested and that tracks the medical definition submitted by the 
American College of Obstetricians and Gynecologists. Why? Why would 
they refuse to use a definition suggested by the elite medical group of 
obstetricians and gynecologists who deal with this issue--a definition 
that would enable those obstetricians and gynecologists to know exactly 
what this legislation makes a crime?
  I believe there is a reason. I believe that this bill deliberately 
uses a vague definition of D&X in order to affect other kinds of 
second-trimester abortions and thus impact the right to choose. Because 
its definition is so loose, the bill would ban and otherwise interfere 
with perfectly legal, permissible abortion techniques. It will also 
have a chilling effect on doctors, who will be afraid to perform 
abortions other than D&X for fear they will be subject to investigation 
and prosecution. Why? Because the bill does not use an accepted medical 
definition of D&X.
  Second, the bill lacks any health exception. This has been spoken 
about before, and I will do it again. The Supreme Court ruled in 
Stenberg v. Carhart that any ban must have a health exception. This 
bill has no health exception. Why are we bothering to pass a bill that 
is so clearly unconstitutional?
  The only reason I can think of is the proponents of the bill do not 
believe the health of a mother is sufficient reason to interrupt a 
pregnancy.
  In fact, the supporters of the bill are not trying to remedy its 
constitutional defects. Rather, they are just making minor alterations 
to the findings in the bill.
  I also oppose the bill because it omits language a majority of the 
Senate added last March recognizing the importance of Roe v. Wade and 
stating that this important opinion should not be overturned.
  Unfortunately, as has been said, this language was stripped out in 
conference over the strenuous opposition of Senator Boxer, Congressman 
Nadler, Congresswoman Lofgren, and myself.
  As an initial matter, I want to lay one myth to rest; that is the 
myth that most Americans support this bill. Supporters of the bill have 
repeatedly and erroneously argued that a majority of the country 
supports banning D&X abortion.
  For example, in introducing this bill, Senator Santorum stated on the 
floor that ``the American people clearly believe this is a procedure 
that should be prohibited.''
  However, such statements are not borne out by recent polls. For 
example, last July, ABC News released a nationwide poll which showed 61 
percent of

[[Page 25414]]

Americans oppose bans on so-called partial-birth abortion procedures if 
a woman's health is threatened. The bill now before us contains no 
health exception. That means a substantial majority of Americans think 
this bill is wrong.
  I also want to mention a poll taken by Greenberg, Quinlan, Rosner 
Research, Inc. between June 5, 2003, and June 12, 2003, of 1,200 likely 
voters. The poll found a majority of Americans--56 percent--believe 
abortion should be legal in all or most cases.
  In addition, this poll found the country does not want the Government 
involved in a woman's private medical decisions. Eighty percent of 
voters believe abortion is a decision that should be made between a 
woman and her doctor. In fact, even a majority of those who identified 
themselves as pro-life said a woman and her doctor should make the 
decision.
  In stark contrast, this bill criminalizes safe abortion procedures, 
and it puts the abortion decision in the hands of the Government and in 
the hands of politicians, not the woman and her doctor.
  I would now like to mention Randall Terry, the founder of Operation 
Rescue, and the man who the New York Times called ``an 'icon' of the 
pro-life movement.'' Mr. Terry is one of the staunchest foes of the 
right to choose in the entire Nation. He is known for harboring views 
so strong on the abortion issue that he has been jailed dozens of times 
for blocking clinics and for having a human fetus delivered to former 
President Bill Clinton. He is also known for speaking his mind.
  Let me read some quotes from Mr. Terry in a press release issued 
through the Christian Communication Network, dated just a month ago, 
September 15, 2003. This press release is entitled: ``Randall Terry, 
Founder of Operation Rescue Says, `Partial-Birth Abortion Ban is a 
Political Scam but a Public Relations Goldmine.''
  Let me repeat that: ``Partial-Birth Abortion is a Political Scam but 
a Public Relations Goldmine.''
  Mr. Terry says the bill before us is a ``Political Scam.'' 
Specifically, he states:

       This bill, if it becomes law, may not save one child's 
     life. The Federal courts are likely to strike it down. . . 
     .The bill provides political cover in an election season to 
     cowardly ``pro-life'' political leaders who have done little 
     for the pro-life cause.

  That is not me. I am quoting Randall Terry, the founder of Operation 
Rescue.
  Let me repeat: ``This bill, if it becomes law, may not save one 
child's life. The Federal courts are likely to strike it down. . . .''
  And he is right.
  Mr. Terry then goes on to say:

       If the President and Congress want to accomplish a small, 
     but real, step they should outlaw all abortions after 20 
     weeks--the age when a baby can live outside the womb.

  Interestingly enough, his suggestion is similar to an amendment I 
offered on the floor of the Senate and in the joint House-Senate 
conference on this bill. This amendment would have banned all 
postviability abortions except and unless a doctor determines such an 
abortion is necessary to protect the life and health of the woman.
  This is the way to go. If someone truly believes these abortions, 
which are not medically defined in the bill, should not take place, and 
if one believes the child is capable of life, then ban postviability 
abortions. I was prepared to see that enacted into law. But it was 
voted down twice, on the floor and in the conference committee.
  I would like to take a moment to explain in detail why I think this 
bill is poorly drafted and is virtually certain to be struck down by 
the courts.
  The conference report bill is unconstitutional for two reasons.
  First, it attempts to ban the specific medical procedure it calls 
``partial-birth abortion,'' but it fails to use the accepted medical 
definition of what surgical procedure constitutes partial-birth 
abortion. The refusal of the sponsors of the bill to accept the medical 
definition of intact D&E is revealing. It makes it clear they are not 
really intent or interested in banning intact D&E or D&X, but, rather, 
they seek to muddy the waters to make it harder for women to get legal 
abortion using other legal and acceptable techniques. That, in my view, 
is the underlying purpose of the bill.
  The Supreme Court ruled in Stenberg v. Carhart that any ban must have 
a health exception. This bill clearly, despite many attempts by this 
senator and others to put one in, has no health exception. The other 
side has repeatedly opposed a health exception.
  Here is what Justice O'Connor said in her deciding opinion in 
Stenberg v. Carhart:

       [B]ecause even a post-viability proscription of abortion 
     would be invalid absent a health exception, Nebraska's ban on 
     pre-viability partial birth abortions, under the 
     circumstances presented here, must include a health exception 
     as well. . . .The statute at issue here, however, only 
     excepts those procedures necessary to save the life of the 
     mother whose life is endangered by a physical disorder, 
     physical illness or physical injury. This lack of a health 
     exception necessarily renders the statute unconstitutional.

  Now, I must ask you, why would anybody, after this case, with the 
swing judge making that statement, draft a bill that so clearly 
violates the Supreme Court's decision? Justice O'Connor has very 
clearly said the ``lack of a health exception necessarily renders the 
statute unconstitutional.''
  The fact the sponsors are ignoring the clear words of the Supreme 
Court is suspect to me. It is even more suspect given the fact that 
just last year the U.S. Government took the position in court that any 
ban on D&X must include a health exception. The Santorum bill, then, 
not only contravenes the Supreme Court but also flies in the face of 
the position taken by the U.S. Department of Justice.
  Let me read from a brief filed by the United States in February of 
2002 in Women's Medical Professional Corporation v. Bob Taft, a case in 
the Sixth Circuit involving an Ohio statute prohibiting late-term 
abortion including D&X. According to this brief:

       The Court [in Carhart] stressed that the Nebraska statute 
     prohibited the partial birth method of abortion except where 
     that procedure was ``necessary to save the life of the 
     mother,'' . . . in violation of the Court's prior holdings in 
     Roe v. Wade . . . and Planned Parenthood of Southeastern 
     Pennsylvania v. Casey . . . that a State must permit 
     abortions, ``necessary in appropriate medical judgment, for 
     the preservation of the life or health of the mother . . . ''

  The original brief even has the words ``or health'' underlined.
  In other words, according to a brief filed by the United States 
Government last year, under Carhart, Roe, and Planned Parenthood, a 
State ``must'' provide a health exception for the woman. Yet we fly 
merrily in the face of that. It is ridiculous.
  Supporters of the Santorum bill argue that they can ignore this 
language by throwing into the bill some questionable factual findings 
that a health exception is unnecessary. Baloney. They argue that these 
so-called findings make irrelevant the Supreme Court's constitutional 
determination in Carhart that a health exception is necessary.
  The Framers of the Constitution did not intend that Congress be able 
to evade Supreme Court precedent and effectively amend the Constitution 
just by holding a hearing and generating questionable testimony from 
handpicked witnesses. In fact, the Supreme Court has made crystal clear 
that Congress cannot simply ignore a constitutional ruling they dislike 
by adopting a contrary legislative finding and telling the Court that 
they have to defer to it. That is just what is being done here.
  Let me quote Chief Justice Burger on this point:

       A legislature appropriately inquires into and may declare 
     the reasons impelling legislative action but the judicial 
     function commands analysis of whether the specific conduct 
     charged falls within the reach of the statute and if so 
     whether the legislation is consonant with the Constitution.

  So make no mistake about it. You can say anything you want in the 
findings, and it isn't going to be dispositive as to whether the 
statute meets the test of the Constitution of the United States.
  I also want to quote from U.S. v. Morrison, 529 U.S. 598 (2000), a 
decision that struck down part of the Violence

[[Page 25415]]

Against Women Act. I personally disagree with this decision, but it is 
controlling law. In that case, the Supreme Court held that ``the 
existence of congressional findings is not sufficient, by itself, to 
sustain the constitutionality'' of the challenged provision of the 
Violence Against Women Act. That is on page 614.
  So why are these findings in the bill? I believe the other side is 
well aware of U.S. v. Morrison and other cases. Why are they doing it 
this way then? There has to be a reason.
  Here the sponsors of S. 3 are trying to do exactly what the Supreme 
Court said the Congress cannot do: Use congressional findings to do 
something that is clearly unconstitutional. The sponsors of this bill 
are effectively trying to overturn binding Supreme Court precedent and 
rewrite the Constitution by enacting a bill that on its face violates 
Stenberg v. Carhart. They have clearly overstepped their bounds.
  Mr. President, one of the most disappointing aspects of this debate 
is that a majority of the House-Senate conference on this bill decided 
to thwart the will of the Senate and strip out language recognizing the 
importance of Roe v. Wade. This decision clearly unmasked the sponsor's 
clear intention in introducing this bill: to strike at Roe. The 
provision stripped out of the bill was a simple sense-of-the-Senate 
resolution. Let me read its exact language:
  One, the decision of the Supreme Court in Roe v. Wade, 410 U.S. 113, 
1973, was appropriate and secures an important constitutional right.
  Two, such decision should not be overturned.
  They struck this language out. Why? Because they want Roe overturned. 
That is the reason.
  I am pleased that the Roe v. Wade amendment was added to the bill 
last March on a bipartisan vote of 52 to 46. Unfortunately, the House-
passed late-term abortion bill lacked the language. The House refused 
to agree to it.
  While I oppose the criminalization of safe abortion techniques in S. 
3, I strongly support the Roe v. Wade language we added to that 
legislation.
  The PRESIDING OFFICER (Mr. Chafee). The Senator has used 20 minutes.
  Mrs. BOXER. Mr. President, I yield 4 additional minutes and retain 
the remainder of my time.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. I thank the Senator from California.
  In the past 30 years, since the Supreme Court upheld a woman's right 
to choose, a great deal has changed for women in America. But now, in 
2003, we are about to push women back to where they were in the 1950s, 
a generation that I remember well, a generation of passing the plate to 
raise money for abortions in Mexico, a generation of back alley 
abortions, a generation of tremendous mortality and morbidity for 
women, a generation of fear. It makes no sense.
  The fact that a majority of the House-Senate conference stripped out 
sense-of-the-Senate language that merely summarized Federal abortion 
law should be exhibit A for anyone who doubts that this bill is really 
a frontal political attack on choice in America.
  I am also disappointed that the conference refused to accept a 
commonsense amendment I offered to the bill before us today. That 
amendment, as I said, would have banned all postviability abortions 
except if determined by the doctor that such an abortion was necessary 
to protect the life and health of the woman.
  With that amendment, the sponsors of this bill could have gotten what 
they wanted legally. Why didn't they take it? The reason they didn't 
take it is because if you have an anti-choice bill with a nebulous, 
vague definition, you can chill all legal second trimester abortions.
  Let me tell you one more thing about the amendment I offered. To 
ensure compliance with the amendment, we even provided that a doctor 
who would perform a postviability abortion on a woman whose health or 
life is not at risk could be fined up to $100,000. That amendment would 
have put medical decisions back into the hands of doctors but, at the 
same time, prevented abuses. In my view, if a doctor believes such a 
procedure is necessary to protect a woman's life or health, then he or 
she should be able to perform that procedure.
  Why do some Senators believe that the Federal Government even needs 
to be involved in this issue?
  Why is this legislation even necessary? Roe v. Wade clearly allows 
States to ban all postviability abortions unless it is necessary to 
protect a woman's life or health, and 41 States already have bans on 
the books. All States are free today to do so if their State 
legislatures so choose.
  The fact is, abortions this late in the pregnancy are rare and 
usually performed under tragic circumstances, such as a brain outside 
of a child's skull or vital inner workings outside of the body that 
cannot be connected.
  Mr. President, the whole focus of many in this Congress and in the 
conservative movement has been to give power and control back to the 
States and eliminate the Federal Government from people's lives. So 
anyone who believes in States' rights must now question the logic of 
imposing a new Federal regulation on States in a case such as this, 
where States already have the authority to ban postviability abortions 
and where a dominant majority of States--41--have already enacted such 
a law.
  Is Federal legislation really necessary? No. I say to my colleagues 
that this clearly is a political bill designed to fan the flames and 
invade Roe v. Wade and weaken it substantially. It attempts to ban a 
medical procedure without properly identifying that procedure in 
medical terms.
  Mr. President, I ask unanimous consent that a number of letters 
demonstrating that this legislation poses a serious threat to women's 
health be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       Association of Reproductive


                                         Health Professionals,

                                 Washington, DC, October 20, 2003.
     U.S. Senate,
     Washington, DC.
       Dear Senator: We are writing on behalf of thousands of 
     health care providers to urge you and your colleagues to 
     oppose federal legislation criminalizing safe abortion 
     procedures (S. 3, the so-called ``Partial Birth Abortion Ban 
     Act of 2003'').
       This bill is deceptive, is based on a number of flawed 
     assumptions, and is unnecessary. First, ``partial-birth 
     abortion'' is not a medical term but a non-scientific and 
     politically biased rhetorical expression invented by 
     activists to convey misrepresentations about safe and 
     medically necessary abortion procedures. The term ``partial-
     birth abortion'' is not used by any of the major national 
     medical organizations, including the American College of 
     Obstetricians and Gynecologists, the American Medical Women's 
     Association, the American Public Health Association, and the 
     Association of Reproductive Health Professionals (ARHP).
       Second, the bill is deceptive because it does not specify 
     any particular stage of pregnancy--contrary to assurances by 
     its sponsors that the bill's intent is to focus only on third 
     trimester abortions.
       Finally, abortions during the third-term are already 
     illegal in almost every state except to save the woman's life 
     or health, and are rarely performed. This legislation is 
     unnecessary and is an example of political ideology trumping 
     science and appropriate medical decision-making.
       Published literature attests to the fact that placing 
     restrictions on abortion services is harmful to the health of 
     women and that medical decisions should be left to health 
     care providers. ARHP is concerned because S. 3 dictates 
     health care methodology to the clinicians who must provide 
     medical care under the most difficult of circumstances. 
     Restrictions imposed by the government on abortion services 
     will not reduce the need for abortion or the quantity of 
     abortions performed, it will only make abortion less safe.
       If you or members of your staff have any questions or would 
     like additional information, please contact Wayne C. Shields 
     at the ARHP office at (202) 466-3825 or [email protected].
           Sincerely,
     Felicia H. Stewart, MD,
       Chair, ARHP Board of Directors.
     Wayne C. Shields,
       President and CEO.
                                  ____

                                                 October 17, 2003.
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: The National Latina Institute for 
     Reproductive Health

[[Page 25416]]

     (NLIRH) strongly opposes S. 3, the ``Partial-Birth Abortion 
     Ban Act of 2003''. As an organization that is dedicated to 
     ensuring the fundamental human right to reproductive health 
     care for Latinas, their families, and their communities, we 
     cannot support the proposed legislation which would 
     drastically inhibit a woman's right to choose, as well as 
     prohibit medically safe procedures which are often necessary 
     to protect and save the life of the woman.
       NLIRH supports the right of every Latina to be in charge of 
     her own life, to determine if and when to have children, and, 
     to seek the full range of reproductive health options 
     available. These health options include access to quality 
     gynecological care, family planning and contraception, 
     fertility treatment, and all abortion services. Contrary to 
     popular belief, Latinas do access abortion services, and 51% 
     of Latinas actively identify as pro-choice. While abortion 
     may not be an option for every Latina, we support the right 
     of every Latina to make her own personal and private decision 
     about abortion and we also support efforts to restore public 
     funding for abortion. For Latinas, accessing abortion 
     services is often difficult already, due to cultural, 
     linguistic, legal, and economic barriers, and banning safe 
     abortion procedures would only further impede upon our rights 
     to choose what is medically and personally appropriate for 
     us.
       Restricting and criminalizing any abortion procedure would 
     undermine the fundamental human right to self-determination, 
     and would endanger the lives of women for whom abortion may 
     be medically necessary. Decisions regarding when to have 
     children are often difficult, personal, and morally 
     complicated, and should be made only by the woman.
       We appreciate your attention to our concerns, and strongly 
     urge you to vote against the so-called ``Partial-Birth 
     Abortion Ban of 2003.''
           Sincerely,
                                  ____



                                  Medical Students for Choice,

                                    Oakland, CA, October 19, 2003.
     Hon. Dianne Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: On behalf of Medical Students for 
     Choice, a national organization representing more than 7,000 
     medical students and residents, I write to urge your 
     opposition to H.R. 760/S. 3, the (so-called) Partial-Birth 
     Abortion Ban Act of 2003.
       Medical Students for Choice is dedicated to ensuring that 
     woman's right to choose from a full range of reproductive 
     health options is preserved. We believe that a physician, in 
     consultation with the patient, should make the decision 
     regarding what method should be used to terminate a 
     pregnancy. Physicians need to have all medical options 
     available in order to provide women with the best medical 
     care possible.
       We are opposed to H.R. 760/S. 3 because we believe this and 
     other legislative and judicial restrictions to safe, 
     medically accepted abortion procedures severely jeopardize 
     women's health and well-being. We also oppose 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. This bill ties the hands 
     of physicians and endangers the health of women. Further, we 
     believe that this bill is deceptive and represents a thinly 
     veiled attempt to restrict women's access to all abortion 
     procedures. ``Partial birth'' is a political term, not a 
     medical term. Despite the anti-choice political rhetoric, 
     this bill is neither designed nor written to ban only one 
     procedure. The bill's prohibitions would apply well before 
     viability and could ban more than one procedure. These so-
     called ``partial birth'' abortion bans are deliberately 
     designed to erode the protections of Roe v. Wade.
       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,
                                         Angel M. Foster, D.Phil.,
     President.
                                  ____

                                            Mexican American Legal


                                 Defense and Educational Fund,

                                 Washington, DC, October 14, 2003.

     Re Conference Report H. Rept. 108-288--The Partial Birth 
         Abortion Act of 2003.

       Dear Senator: I am writing on behalf of the Mexican 
     American Legal Defense and Educational Fund (MALDEF) to urge 
     you to oppose Conference Report H. Rept. 108-228, the so-
     called Partial Birth Abortion Act of 2003 (the Act). MALDEF, 
     a national non-profit organization whose mission is to 
     protect and promote the civil rights of the over 35 million 
     Latinos living in the United States, believes this 
     legislation is unconstitutional and harmful to women's 
     health.
       The Act is unconstitutional for at least three reasons. 
     First, the legislation does not include a health exception. 
     The Supreme Court has held that laws regulating abortion must 
     adequately safeguard a woman's health. This legislation does 
     not include such an exception. Contrary to the legislative 
     findings indicating that a health exception to the ban is 
     never necessary, many physicians have stated that this 
     legislation would prevent them from performing procedures 
     that are necessary to protect a woman's health. Second, the 
     legislation is unconstitutional because the language of the 
     ban is overly broad. The ban is not limited to specific 
     medical procedures and actually could prohibit the safest 
     abortion techniques in certain cases, thereby unduly 
     burdening a woman's right to choose. Finally, determining 
     which procedure is medically necessary is a medical decision 
     that should be made by a physician and his or her patient, 
     not by the federal government. The Supreme Court has 
     emphasized the need for physicians to have adequate 
     discretion to make these types of medical decisions.
       The Supreme Court directly addressed this type of ban in 
     Stenberg v. Carhart, 530 U.S. 914 (2000). In Stenberg, the 
     Court found Nebraska's ban on so-called partial birth 
     abortion unconstitutional because the legislation's language 
     was overly broad and it lacked a health exception. The 
     federal version of the ban now pending before you contains 
     the same flaws and is similarly unconstitutional.
       This legislation is an unprecedented attempt by the federal 
     government to restrict women's access to abortion that 
     ultimately jeopardizes the health of women. MALDEF strongly 
     opposes this legislation and urges you to do so as well. If 
     you have any questions please contact Angela Hooton at (202) 
     293-2828.
           Sincerely,
                                                Antonia Hernandez,
     President and General Counsel.
                                  ____

                                         National Latina Institute


                                      for Reproductive Health,

                                   Brooklyn, NY, October 17, 2003.
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: The National Latina Institute for 
     Reproductive Health (NLIRH) strongly opposes S. 3, the 
     ``Partial-Birth Abortion Ban Act of 2003''. As an 
     organization that is dedicated to ensuring the fundamental 
     human right to reproductive health care for Latinas, their 
     families, and their communities, we cannot support the 
     proposed legislation which would drastically inhibit a 
     woman's right to choose, as well as prohibit medically safe 
     procedures which are often necessary to protect and save the 
     life of the woman.
       NLIRH supports the right of every Latina to be in charge of 
     her own life, to determine if and when to have children, and 
     to seek the full range of reproductive health options 
     available. These health options include access to quality 
     gynecological care, family planning and contraception, 
     fertility treatment, and all abortion services. Contrary to 
     popular belief, Latinas do access abortion services, and 51% 
     of Latinas actively identify as pro-choice. While abortion 
     may not be an option for every Latina, we support the right 
     of every Latina to make her own personal and private decision 
     about abortion and we also support efforts to restore public 
     funding for abortion. For Latinas, accessing abortion 
     services is often difficult already, due to cultural, 
     linguistic, legal, and economic barriers, and banning safe 
     abortion procedures would only further impede upon our rights 
     to choose what is medically and personally appropriate for 
     us.
       Restricting and criminalizing any abortion procedure would 
     undermine the fundamental human right to self-determination, 
     and would endanger the lives of women for whom abortion may 
     be medically necessary. Decisions regarding when to have 
     children are often difficult, personal, and morally 
     complicated, and should be made only by the woman.
       We appreciate your attention to our concerns, and strongly 
     urge you to vote against the so-called ``Partial-Birth 
     Abortion Ban of 2003.''
           Sincerely,
                                                 Silvia Henriquez,
     Executive Director.
                                  ____

                                            National Black Women's


                                         Health Project, Inc.,

                                                 October 20, 2003.
     Hon. Dianne Feinstein,
     U.S. Senate, Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: On behalf of the Black Women's 
     Health Imperative (formerly National Black Women's health 
     Project), I am writing to convey our opposition to H.R. 760, 
     the Partial-Birth Abortion Ban Act of 2003.
       As the only national organization that is solely dedicated 
     to the health of the nation's 19 million Black women and 
     girls, the Black Women's Health Imperative (the Imperative), 
     has focused on issues that disproportionately affect Black 
     women from access to healthcare, inclusive of reproductive 
     health care. The Imperative has been in the forefront 
     advocating for a comprehensive agenda that includes the full 
     range of medical and socially available technologies and 
     services for fertility management.
       We believe that H.R. 760 would restrict safe, medically 
     acceptable abortion procedures that would severely endanger 
     women's

[[Page 25417]]

     health and well-being, disproportionately affecting low-
     income African American women. Moreover, we feel that this 
     legislation fails to include adequate health exception 
     language in instances where certain procedures may be 
     determined by a physician to be the most appropriate to 
     preserve the health of the woman.
       For the past 20 years, the Black Women's Health Imperative 
     has been instrumental in highlighting disparities in health 
     and will continue to play an essential role in helping to 
     shape policies that seek to improve African American women's 
     overall health. On behalf of our constituency, we urge the 
     United States Senate to oppose H.R. 760, the Partial-Birth 
     Abortion Ban Act of 2003.
           Sincerely,
     Lorraine Cole, PhD.
                                  ____


            [From Medscape General Medicine, June 25, 2003]

The Federal Ban on So-called ``Partial-Birth Abortion'' Is a Dangerous 
                    Intrusion Into Medical Practice

                    (By Paul D. Blumenthal, MD, MPH)

       Congress has passed the ``Partial-Birth Abortion Ban Act of 
     2003,'' the first federal legislation ever enacted that bans 
     abortion procedures. This unprecedented intrusion by Congress 
     into medical practice will reduce access to second-trimester 
     abortions and defines the doctors who perform them as 
     criminals. Moreover, by undermining a woman's right to select 
     the reproductive healthcare most appropriate for her and 
     interfering with a physician's ability to make medical 
     decisions, Congress derogates the physician-patient 
     relationship.
       Proponents of this law claim that it bans only a particular 
     procedure. However, the legislation does not define what is 
     being banned in such a way that a physician can know exactly 
     what is prohibited. There is no formally recognized medical 
     procedure to which the term ``partial-birth abortion'' used 
     in this legislation applies; it is therefore vague and 
     medically incorrect. None of my colleagues know or could 
     state whether the abortion procedures they now perform are 
     covered under this law. Indeed, as I read the definition of 
     the banned procedures, any of the safest, most common 
     abortion methods used throughout the second trimester of 
     pregnancy could proceed in such a manner as to be outlawed. 
     One can only assume that by intimidating medical providers 
     with the constant threat of criminal accusations, the intent 
     of this law is to frighten the medical community--the same 
     community that swears an ancient oath to use its knowledge 
     and skills to serve and protect the lives of its patients--
     from performing pregnancy terminations at all.
       The practice of high-quality medicine requires that 
     physicians be knowledgeable about and able to perform variety 
     of procedures to accomplish a given treatment or therapy. 
     Planning any procedure is done in consultation with the 
     patient, and it is based on the medical judgment, experience, 
     and training of the provider, and the individual 
     circumstances of the patient's condition. Sometimes, as a 
     result of developments during a surgery or in a patient's 
     condition, it becomes necessary to adapt and choose a 
     different course or modify the procedure as it progresses. 
     These decisions are often quite complex and mandate that 
     physicians use their best professional and clinical judgment, 
     most often right on the spot. These are decisions that should 
     be made by physicians and their patients stone. Indeed, when 
     performing surgery, there is not time for a call to Congress, 
     the Supreme Court, or anyone else in order to obtain 
     clarification of the statutory intent or to request a waiver. 
     This law evokes a preposterous image of physicians with their 
     attorneys present in the operating room advising and 
     counseling them at each step, and perhaps even in the middle 
     of surgery suggesting a physician alter a technique deemed 
     best for the patient to avoid committing a federal crime. 
     Physicians and surgeons should be allowed to practice their 
     art in accordance with time-honored peer-reviewed standards 
     and with only the interests of the patient at . . . .

  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SANTORUM. I yield myself such time as I may consume.
  Mr. President, I have listened to this debate on both sides, and I 
continue to hear a lot of the same things. I just think it is important 
to set the record straight with respect to what many have heard today.
  First, the Senator from California, Mrs. Boxer, has objected to my 
using the term ``killing'' the child when describing the diagrams of 
the partial-birth abortion. So I wanted to make sure I was not using 
terms that were inflammatory or inaccurate. She said I was referring to 
the fetus as a child instead of the fetus. I looked up the definition 
of fetus: ``An unborn child.'' So I don't think referring to a fetus as 
a child is incorrect when the definition of a fetus is ``an unborn 
child, from the third month until birth.'' This child is obviously in 
excess of 3 months into gestation, so it is obvious I am using a 
correct term.
  She objected to me using the term ``killing.'' I will quote some 
people in the abortion movement to justify my using of this term. This 
is from Faye Wattleton, former president of Planned Parenthood:

       I think we have deluded ourselves into believing that 
     people don't know that abortion is killing. So any pretense 
     that abortion is not killing is a signal of our ambivalence, 
     a signal that we cannot say, yes, it kills a fetus, but it is 
     a woman's body and ultimately her choice.

  So say even those in the abortion movement.
  Judy Arcana, a pro-choice author and educator, said:

       Sometimes a woman has to decide to kill her baby. That is 
     what abortion is.

  I understand how people want to avoid talking about the baby, the 
child, the fetus, or whatever term you feel most comfortable using. It 
is what it is. It is a human being. I understand we like to use terms 
that don't refer to the human being. In fact, in all the debate we have 
heard today on the other side, we hear this concentration and talk 
about the woman and the right to choose. We hear very little discussion 
about what the choice is all about. I know most Americans like choices 
and they like the right to choose. But I think it is important that 
people know what the choice is all about, what we are choosing.
  What we are choosing here is to kill a human being. Yet many on the 
other side just don't want to consider what is being chosen here. What 
many on that side like to think is that we are choosing a medical 
procedure. The Senator from New Jersey earlier referred to it being 
similar to the removal of a cancerous intestine. Maybe some people look 
at babies as this sort of cancer or this thing that they don't want 
anymore, that somehow affects them in some way. But I think it is 
important for us, if we are going to make decisions that impact 
millions of lives, to face up to what we are doing and we don't try to 
couch it in terms that sound nice, that sound American--words such as 
``freedom'' and ``choice'' and words such as that.
  What we are choosing is to take away a fundamental right of every 
person in America, and that is the right to life. So, yes, I will use 
the term ``killing'' because that is exactly what it is, the 
extinguishing of a life. It is a child, it is a baby, an infant, a 
fetus, a living human being.
  Second, the Senator from California has suggested that this is not a 
medical term. Well, I had my staff run and look it up in Webster's 
Medical Dictionary. In Webster's, the term ``partial-birth abortion'' 
is in fact defined:

       Abortion in the second or third trimester in which the 
     death of the fetus is induced after it is passed part way 
     through the birth canal.

  As to this idea that it is not a term used, it is in the dictionary. 
It is interesting that the Senator from California would say that this 
is not a medical term, that this doesn't exist. Yet she has repeated 
many times that this thing that doesn't exist is a great threat to 
women. If we abolish something that doesn't exist, somehow or another 
this is a horrible thing we are doing to women. That doesn't 
necessarily make sense to me. Then she goes on and says this thing that 
doesn't exist--she claims it doesn't exist--is medically necessary at 
times. I have a hard time grappling with this argument in the 
alternative. First you argue it doesn't exist, and then it does exist 
and it is medically necessary.
  The Senator from California, last month, put in the Record statements 
from Physicians for Reproductive Choice and Health, and in this letter 
in the Congressional Record, they say:

       So-called partial-birth abortion does not exist. There is 
     no mention of the term partial-birth abortion in any medical 
     literature.

  That is not true.

       Physicians are never taught a technique called partial-
     birth abortion; therefore, they are medically unable to 
     define the procedure. We know that there is no such technique 
     as partial-birth abortion.

  She makes the argument that it doesn't exist, and then she argues 
that it is necessary. I don't know how you can have it both ways. It 
either does

[[Page 25418]]

exist and it is necessary or it doesn't exist and it is not necessary. 
We find interesting arguments that don't seem to hold up upon closer 
examination.
  Another thing that doesn't hold up under examination is the repeated 
attempts by those who oppose this legislation to misinform the public 
as to what it does. I am not only going to go through the most recent 
example of this, but the chronology of events around this legislation, 
which started with Charles Canady in the House of Representatives and 
Bob Smith in the Senate, who did an outstanding job.
  I remember when Bob first came to the Senate floor. He was ridiculed 
as being this extreme person who would bring this medical procedure to 
the floor and it was an outrageous thing for a Senator to do. He had 
the courage to stand up for his convictions and follow through. But I 
remember at hearings, they were saying this procedure didn't exist, 
first, and, second, the anesthesia given to the mother would kill the 
baby, and that this was only done on mothers who were in a position 
where the baby was badly deformed or the mother's health was in danger, 
and it was only done a few dozen times a year.
  Every one of those things I have mentioned has been debunked. They 
are simply not true. Yet here we are just days away from passing this 
bill again in the Senate for the third time, but the fourth time we 
have debated, and we see a statement by Planned Parenthood last month 
that says:

       S. 3 is a bill to outlaw the medical procedure used 
     primarily in emergency abortions.

  ``Primarily in emergency abortions.'' Let me, again, without reading 
the comment below, state this is a 3-day procedure. This is a procedure 
where the woman presents herself to the abortionist, and I say 
abortionist because this procedure is only done in abortion clinics. It 
is not done in hospitals, as this organization that Senator Boxer 
submitted for the Record said. They don't teach this procedure in 
medical school. It was designed by an abortionist for the convenience 
of the abortionist.
  She presents herself to an abortionist who gives her something to 
help dilate her cervix and tells her to return 2 days later.
  Can you possibly imagine someone in an emergency situation presenting 
themselves to a health care professional who is in an emergency 
situation because of her pregnancy, who is given something to dilate 
her cervix and sent home for 2 days?
  On the face of it, it makes no sense. But yet they persist in spite 
of the fact that Ron Fitzsimmons, the executive director of the 
National Coalition of Abortion Providers, is quoted in the New York 
Times on February 26, 1997--1997, not February 26, 2003, 2002--6\1/2\ 
years ago:

       Mr. Fitzsimmons recalled the night in November 1995, when 
     he appeared on ``Nightline'' on ABC and ``lied through my 
     teeth'' when he said the procedure was used rarely and only 
     on women whose lives were in danger or whose fetuses were 
     damaged.

  ``Lied through my teeth'' in 1995, he said, on ``Nightline.'' But in 
1997, he came clean. He said:

       In the vast majority of cases, the procedure is performed 
     on a healthy mother with a healthy fetus that is 20 weeks or 
     more along, Mr. Fitzsimmons said. The abortion rights folks 
     know it, the antiabortion folks know it, and so probably does 
     everyone else, he said in the article in the Medical News, an 
     American Medical Association publication.

  They knew it. In 1997, they knew this. A month ago they were still 
saying it.
  I don't mind having a good honest debate, and the Senator from 
California, Mrs. Feinstein, brought up legitimate legal issues, a 
proper, good debate, but when the organization that is principally 
behind the stopping of this bill a month before this bill gets 
presented continues to try to misinform the American public, I think 
you have to ask yourself a question as to the credibility of that 
organization and the credibility of their case.
  There are a couple other comments that were made on which I have to 
set the record straight. The Senator from California, Mrs. Boxer, said 
this abortion procedure needs to remain legal out of respect for women 
and ``because it gives the fetus dignity.''
  Anyone who looks at this abortion procedure and suggests that pulling 
a child feet first through the birth canal at 20 weeks of gestation, 
who otherwise would have been born alive, and have a pair of scissors 
thrust in the base of their skull and have their brains suctioned out 
is an act of dignity I think has to rethink what the word ``dignity'' 
means. To treat any human being, to treat any living thing in that 
fashion is insulting to that life. It certainly is not an act that I 
would call a dignified act or an act that shows respect for that child.
  A lot has been made by both Senators from California and others about 
the need for a health exception. This gets in to the meat of this 
debate with respect to its constitutionality. The Court did state that 
there were two reasons for the Nebraska law on partial-birth abortion 
to be overturned. One was that it did not have a health exception that 
was required by Roe v. Wade.
  Step back and think about this debate in a larger context. I don't 
think most Americans, if I can put up the last chart of the diagram of 
the procedure--I don't think most Americans contemplate that Roe v. 
Wade covers abortions done late in pregnancy by healthy mothers with 
healthy babies who would otherwise be born alive being treated in such 
a brutal and barbaric fashion. I don't think most Americans see the 
scope of Roe v. Wade as including that type of abortion but it does.
  That is really the wake-up call for America here: That Roe v. Wade is 
not what they claim it to be. If it is later in pregnancy, it is 
mothers who have health issues or the child has health issues. No, that 
is not what we are talking about here. We are talking about there needs 
to be a health exception, according to this court, for a procedure done 
late in pregnancy on healthy mothers with healthy babies treated in a 
brutal fashion such as this. I don't think most Americans would have 
said: Gee, we need a health exception here or Roe v. Wade covers this 
issue, but that is what they say; that based on the evidence they 
compiled in the Federal district court in Nebraska, the court examined 
the evidence and determined that a health exception was necessary, 
based on the evidence that was submitted at trial.
  We believe strongly the evidence submitted at trial was incomplete; 
that there has been a lot of evidence submitted to the Congress and in 
publications that is counter to what the Nebraska district court found, 
and that the overwhelming weight, and I would argue the dispositive 
weight, of evidence presented to this Congress, which is a finder of 
fact just as the district court is, is that it is never medically 
necessary.
  The Senator from California has said the American College of 
Obstetrics and Gynecology has written a letter saying that it may be 
medically--that is the term, ``may be medically necessary.'' Yet in the 
letter she has entered into the Record, which she has entered many 
times before, they do not present one example of a case in which it 
would be medically necessary.
  For 8 years I have stood on the floor of the Senate and have asked 
for such a case from the American College. To date, the American 
College has never replied to my request. They have not sent one case to 
be submitted into this Record as to where this may be medically 
necessary actually is medically necessary.
  One has to wonder the validity of the statement that it may be 
medically necessary if they can't find a case in fact where it is. 
Cases have been submitted by both Senators from California where some 
obstetricians have said this was medically indicated in this case. For 
every 1 letter that has been submitted, we have had 6, 7, 8, 9, 10 
letters from maternal fetal medicine specialists--they are specialists 
in high-risk pregnancies--perinatologists who say not only aren't those 
cases good cases but they are contraindicated.
  It is bad medicine. So we do not really have any uncontrovertible 
case where it is medically necessary. I think that is important for the 
Court to consider. I think it is also important for

[[Page 25419]]

the Court to consider that the Congress, which has had multiple 
hearings of fact, unlike the Court, was able to make a determination 
and have a vote overwhelmingly in both the House and Senate that these 
facts are as we say they are. I believe we have a right as a body to 
make that determination.
  We hope, just as we listen to the Court in matters of law because 
that is their responsibility, that as finders of fact they would listen 
to what we come up with. I know many on the Court think it is a one-way 
street. They just tell us what they think and we have to do whatever 
they tell us and we have no input into what the Court decision is.
  That is not the way our Framers envisioned it. I found it sort of 
humorous that the Senator from California said the Framers did not 
envision the Congress amending the Constitution by legislative 
findings. I will assure the Senator from California that our Framers 
did not envision the Supreme Court amending the Constitution by 
judicial fiat but they do. Roe v. Wade is a case in point.
  So there are lots of things our Framers did not envision, I say the 
most grotesque of which is the Court activism that we have seen across 
the street.
  With respect to this health exception, it is overwhelmingly clear 
that it is never medically necessary.
  Why do we go to such length in saying that a health exception is not 
medically necessary? Well, because if we had a health exception to this 
bill--and many have suggested, just put in a health exception. I mean, 
are you not concerned about women's health?
  Well, I do not think anyone is not concerned about women's health. In 
fact, the evidence presented is overwhelming that this procedure is a 
riskier procedure than other abortion procedures and is never medically 
indicated. So if one looks at the overwhelming body of evidence and 
they are concerned about women's health, they would be for banning this 
procedure because it is never medically indicated. It is done only for 
the convenience of abortionists and is, in fact, unhealthy. So if one's 
concern is women's health, then they would be for banning this 
procedure.
  The interesting point is, why are they pushing so hard for this 
health exception and why are we resisting it so much? Well, what does 
the health exception mean? This is the little secret that to those who 
have not followed the abortion debate may say, what is the big deal? 
Why do you not put in a health exception? That sounds reasonable.
  The problem with the health exception is that it is so broad an 
exception it swallows up the bill because a health exception--when Roe 
v. Wade was decided, there was a companion case decided called Doe v. 
Bolton, and in that case health was defined as: Medical judgment may be 
exercised in the light of all factors: physical, emotional, 
psychological, familial, and the woman's age relevant to the well-being 
of the patient. All of these factors may relate to health. This allows 
the attending physician the room he needs to make the best medical 
judgment.
  So over time what this has been interpreted to mean is health means 
anything: emotional, physical, spiritual, psychological, whatever it 
is, stress, anxiety. Some have even brought it to economic concerns.
  Health is an exception that swallows the rule. So as long as the 
doctor says the woman obviously exhibited anxiety, stress, discomfort, 
she had a headache or whatever, it does not matter. It does not say 
severe. It just says anything. So what this provision did, and that is 
what the Court wanted to do, was to give absolute latitude to the 
doctor to do whatever the doctor wanted to do in consultation with the 
patient. So the health exception is no exception at all. It is a barred 
anti-
prohibition. So understand that the health exception bars the bill, 
stops the bill from having any effect. So that is why we resist.
  In our case, we think we are outside this health exception because it 
is actually unhealthy for the woman and it is never medically 
necessary.
  Before I move on to the next topic, I want to go through some of the 
health risks as outlined--we have a series of letters which I will 
submit for the Record--that partial-birth abortion poses serious health 
risks for women.
  First, as I mentioned before, the physician has to dilate the cervix 
a couple of days before the abortion is performed, creating a risk, 
according to several physicians, to an incompetent cervix, a leading 
cause of future premature deliveries or infection, and is the main 
cause of subsequent infertility.
  As we can see, the baby is brought in feet first through the birth 
canal. When they reach in to pull the baby out of the uterus--reaching 
into the uterus to pull the baby's feet through the cervix is a 
dangerous procedure, risking the tearing of the uterus. It poses an 
increased risk of uterine rupture, abruption, amniotic fluid embolus 
and trauma to the uterus as a result of converting the child into a 
footling breech position. Grabbing the baby's legs could perforate the 
uterus, which could result in severe hemorrhage and possibly a 
hysterectomy. Then the procedure that follows where the Metzenbaum 
scissors are placed in the base of the baby's skull to kill the baby 
and puncture the baby's skull, putting the scissors into the baby's 
brain is a partially blind procedure. As we can see, the physician has 
no way of seeing where those scissors are entering the baby or if they 
are even entering the baby.
  This blind procedure with a sharp instrument may expose the uterus to 
sharp bone shards, bone shards from the baby's skull upon the puncture. 
They may lacerate different parts of the woman's body and cause 
hemorrhaging and could necessitate a hysterectomy to save the mother's 
life. This is not a riskless procedure. This is a risky procedure.
  I reiterate, this is not taught in medical schools. There are no peer 
review journals published that suggest this is a superior way, much 
less an appropriate way, to deal with an abortion. There are no studies 
that have been done, that are controlled in nature, to show that this 
is a proper procedure. This is a rogue procedure. It is medically 
unhealthy and it is medically unnecessary.
  Both Senators from California talked about their recollection of the 
pre-Roe v. Wade days. The Senator from California, Mrs. Boxer, 
suggested the debate we had a month ago with respect to the number of 
maternal deaths as a result of abortion prior to Roe v. Wade were women 
in all States--in some States, abortion was legal, not in all States--
that women as a result of that had higher incidents of maternal death. 
The Senator from California continued to indicate that there were some 
5,000 deaths per year as a result of abortion not being legal 
everywhere in the United States.
  I entered information in the Record from the Bureau of Vital 
Statistics, including more recently the Centers for Disease Control, 
suggesting at the time of 1972, prior to the decision being made, there 
were 83 maternal deaths. The Senator from California suggested that is 
only because the only reported deaths were States in which abortion was 
legal.
  That is not the case from the statistics. Had that been the case--it 
is not, according to the information we have gathered, but had it been 
the case, then why were there 1,231 reported deaths from abortion in 
1942, where abortion was not legal in any State in the country?
  So if her information was correct, if they were only reporting cases 
in States in which abortion was legal in 1942, there would have been no 
deaths because there were no States in which abortion was legal. But in 
fact they were reporting from States where abortion was legal and 
illegal.
  What you saw from 1942 down to 1972 was a decrease, from 1,231, 
almost straight line down to 83 deaths in 1972. Why? Because medicine 
improved. Antibiotics, first and foremost, is probably the principal 
reason, because of infection, but there were a whole variety of 
reasons. The improvement of medical science is why those numbers 
continued to decrease. So the idea that

[[Page 25420]]

somehow or another there were thousands of women dying prior to Roe v. 
Wade is just not backed up by the facts.
  We have an obligation; as much as we would like to paint a picture 
for the eyes particularly of young people who didn't live then, as much 
as we would like to paint this picture to young people to convince them 
of the justice or righteousness of the right to abortion, that things 
were really bad, that women were dying in droves, there was a horrible 
situation prior to Roe v. Wade, we cannot. You have to deal with the 
fact that was not the case with respect to the amount of maternal 
deaths.
  There may be other factors that you consider and you are welcome to 
make the arguments about how people felt at the time. That is fine. But 
you cannot play with the facts to present a case that is not true.
  I want to quote Bernard Nathanson who was, at the time of 1972, an 
abortionist. He says:

       How many deaths were we talking about when abortion was 
     illegal? In N.A.R.A.L.--

  A group he helped found, the National Abortion Rights Action League--

     we generally emphasized the drama of the individual case, not 
     the mass statistics, but when we spoke of the latter it was 
     always ``5,000 to 10,000 deaths a year.'' I confess that I 
     knew the figures were totally false, and I suppose the others 
     did too, if they stopped to think about it. But in the 
     ``morality'' of our revolution, it was a useful figure, 
     widely accepted, so why go out of our way to correct it with 
     honest statistics?

  This is a very serious issue. I would argue it is the greatest moral 
issue of our time. I think we have an obligation to use honest 
statistics, at least honest statistics--honest statistics, honest 
cases. The Senator from California brought up the case of Vicki Wilson, 
as she has repeatedly throughout this debate over the past several 
years. She said Vicki Wilson needed a partial-birth abortion because of 
a medical condition she and the baby had. Let me quote from Vicki 
Wilson's own testimony to Congress.

       My daughter died with dignity inside my womb, after which 
     the baby's body was delivered head first.

  Not feet first. Vicky Wilson did not have a partial-birth abortion. 
Yet it is a case that is continually used here to justify a partial-
birth abortion being kept legal.
  The case was also made she needed to have one done. Quoting Vicki 
Wilson:

       I knew I could go ahead and carry the baby until full term 
     but knowing, you know, that this was futile, you know, that 
     she was going to die, I felt like I needed to be a little bit 
     more in control in terms of her life and my life.

  Vicki Wilson did not have a medical emergency or a health need, from 
the standpoint of what most people would consider to be a health need, 
which is physical health.
  I caution, when people listen to this debate, that they listen to the 
debate of what is real, what the facts are, and what the consequences 
are. There is no question in my mind that the consequences of this 
debate are the most profound consequences we face as a country and more 
specifically as a culture as to who we are. Because ultimately what 
this is about, banning this procedure, is about who we are going to 
accept in our human family. Do we accept this little baby? You can pull 
out the photo Senator Brownback showed earlier. If we can accept this 
little baby at 20 weeks or 21 weeks into our human family, or do we say 
no, no, you may look like us, you may have hands and feet and you may 
have a heartbeat, you may be perfectly normal, you may have looked like 
us when we were that age, but we are not going to include you in the 
human family. We are not going to call you an American. We are not 
going to give you the rights provided to you under the Constitution.
  It really is about who we accept. I would argue it is about who we 
are going to love, who we are going to nurture, who we are going to 
support.
  Today in the Senate we have a chance to say in some very small way--
and I admit, I will agree with the Senators from California and others 
that this will do very little to limit the number of abortions. I agree 
with that. But in some small way we are acknowledging this little 
child, this little child is a member of our family.
  The Senator from Iowa, Senator Harkin, as well as the Senator from 
California, Senator Feinstein, talked at length about the striking of 
the Roe v. Wade language from this bill that passed the Senate. The 
language stated Roe v. Wade was the law of the land and should continue 
to be the law of the land. It passed by a couple of votes here in the 
Senate.
  I think many of us found that to be somewhat in contrast with the 
underlying purpose of this bill, in the sense that this was a very 
small tip of the hat, recognition of the humanity of this child, we 
were not going to treat this child in this grotesque fashion. That is 
all.
  It doesn't say that child couldn't be killed in some other fashion 
that was medically safer for the woman. But it says when it comes to 
delivering a child and having that child just inches away from being 
born, we were not going to go that far. This, really, was too close. So 
we gave a small nod, a small nod to the humanity of that child in the 
process of being born.
  So many of us thought, sort of restating this sense of the Senate 
about the primacy of Roe v. Wade was an insult to even this little nod 
that I would argue is outside of Roe v. Wade. Unnecessary, is what it 
is. Roe v. Wade is, according to the Court, how they will decide 
abortion cases.
  I vehemently disagree with them and I will continue to fight on this 
floor and anywhere else I can to make sure that law, that Court 
decision taking the decision away from the American public--which is 
where it was prior to Roe v. Wade--taking the decision of great moral 
import away from the American public, is returned to the people.
  We just saw an election in California where the people rose up and 
said they wanted to take back control of their State. We don't have 
such a process here. The Court is insulated from the public rising up 
and saying no, we don't like your decision--or even from the Congress. 
It takes a huge amount of effort. It is a very difficult process to 
amend the Constitution, pass both Houses of Congress by a 
constitutional majority, 67 percent; plus get three-quarters of the 
States to ratify a constitutional amendment. Yet this Court by a whim 
can amend the Constitution with five votes, and did so. They amended 
the Constitution like that.
  I don't think that is the way the Framers wanted it. I think they set 
forth a constitutional amendment process because that is the way they 
wanted to create new rights or change the Constitution, not to allow 
the Court to do it.
  I have likened the Roe v. Wade decision--I was fortunate enough 
Sunday to be in St. Louis, MO and had the opportunity to walk by the 
courthouse, which is right in downtown St. Louis, where the Dred Scott 
case was initially decided. That is where the district court was.
  You look back, and people in St. Louis have great pride in the fact 
that case was there, and many Missourians stood up and fought against 
what that case was all about. I would argue that Roe v. Wade is exact 
in kind as the Dred Scott decision. Like the Dred Scott decision, Roe 
v. Wade--unlike, if you think back, and think of any other major 
Supreme Court decision, where rights, individual rights were dealt 
with--almost every other Supreme Court decision in which individual 
constitutional rights were dealt with, over time the public grew to 
accept. That is because over time, the public grew to understand the 
justice of that decision.
  The most recent one is civil rights decisions. But in Dred Scott the 
abolitionist and so many others knew of the injustice--yes, it was the 
law; that is what the court said. They decided the case. There were too 
many in this country who said, no, I don't believe that is right.
  It is amazing if you see the polling of young people in America, 
there is actually a higher pro-life sentiment among young people than 
older people, but you would think people who grew up, knowing this was 
the law--because when people hear the law they think, if it is the law, 
it must be right; it must

[[Page 25421]]

be just; it must be ethical; it must be moral; otherwise, it would not 
be the law. The law is a great teacher. It is the greatest teacher to 
young people as to what is right and what is wrong. Young people, 
knowing the law, still say there is something inside me that says this 
is not right. Just like young people in the 1850s and 1860s, who said 
there is something inside me that tells me this is not right.
  Abraham Lincoln said a house divided against itself cannot stand. So 
here we are today, with the American public deeply divided on this 
issue, deeply divided because so many people for 30 years have only 
known the law and the popular culture. Does the popular culture depart 
at all from what the law is? Is there anything you see coming out of 
Hollywood or New York that at all disagrees with this, the Supreme 
Court notion of what the law should be? Of course not. Yet this feeling 
is out there, this sentiment, like the abolitionists of the 1860s who 
said it may be the law, but in this case that does not make it right. 
That does not make it just. So while we had a great debate on Roe v. 
Wade, this will have no impact. It is just a debate that will continue 
to go on.
  The final point I make about this is one I have made before. Why are 
Dred Scott and Roe v. Wade alike? Because the Dred Scott decision put 
the rights, the property rights, the liberty rights of the slaveholder 
above the life rights of the slave. In our founding document, the 
Declaration of Independence, Thomas Jefferson wrote: We are endowed by 
our creator with certain inalienable rights. Then he listed them: The 
right to life, liberty, the pursuit of happiness. In that order--life, 
liberty, pursuit of happiness.
  In Dred Scott, we took the fundamental right, life--for without life 
you cannot have liberty; without liberty you cannot pursue happiness. 
So they are put in order for a reason. What Dred Scott did was take the 
life rights of a slave and put them under the liberty rights of someone 
else.
  And Roe v. Wade, the reason I compare it to Dred Scott, does the same 
thing. It puts the life right of this little human being that we have 
decided not to accept in our society as a person and subjugates them to 
the liberty rights, the choice of someone else, in this case the baby's 
mother.
  The Senator from California says why don't we trust women more? I do. 
But you cannot ignore the fact that one-third of all pregnancies in 
America end in abortion. This is a very small piece of legislation, I 
will admit that. But it is important just for a brief moment, just for 
some rather small piece of legislation that affects, if you consider 
1.3 million abortions, less than 1 percent of all abortions, far less, 
.1 of all abortions, but in some small way it begins to recognize the 
humanity that we have to display toward this child and not treat this 
child in such a brutal fashion.
  I conclude by thanking my colleague from California and all those who 
have been involved in this debate over the years. We have had a 
vigorous debate. That is important in the Senate that we debate these 
very important issues. I thank all those on both sides of the aisle who 
have engaged in that. I thank Senator Smith for his courage in bringing 
this bill up; Senator DeWine, in particular, who has been a tremendous 
champion on this issue; along with Senator Brownback, Senator Ensign, 
Senator Voinovich, and so many others who have come to the Senate and 
taken on this issue.
  I thank my staff: Heather MacLean, for the tremendous work she has 
done in supporting me in every way possible in getting the information 
I need when I need it, to carry this debate forward; and Michelle 
Kitchen; prior to her, Wayne Palmer, my legislative director; and all 
the members of my staff.
  Finally, I thank all who have been sending your prayers to 
Washington, DC, through this debate. They have made a difference.
  Mr. DOMENICI. Madam President, I rise today to support adoption of 
the conference report to accompany the ``Partial-Birth Abortion Ban Act 
of 2003.'' I compliment the distinguished Senator from Pennsylvania, 
Mr. Santorum. He has carried this bill and I offer him my 
congratulations for his efforts in this regard.
  I have always been a supporter of the rights of the unborn. And, 
after many years of debate on this issue, I am very pleased that this 
body is going to pass this measure, and that the President has said he 
will sign it.
  In March, I came to the floor and I discussed this very issue. At 
that time, I quoted one of our very distinguished former colleagues, 
Mr. Daniel Patrick Moynihan. Senator Moynihan described the Partial 
Birth Abortion procedure as follows:

       I think this is just too close to infanticide. A child has 
     been born and it has exited the uterus. What on Earth is this 
     procedure?

  That is what the distinguished Senator from New York said.
  And, the Senator was right. This debate is not about Roe v. Wade; 
this is not a pro-life or pro-choice vote. This debate is about 
humanity and necessity. The procedure of partial- birth abortion, to 
put it candidly, is cruel and inhumane. The issue here today is whether 
we should prohibit a form of abortion that borders on infanticide. As 
Senator Moynihan said, ``what on Earth is this procedure?''
  By now, many Americans are uncomfortably aware of the details of a 
partial-birth abortion. They have heard the testimony of doctors who 
perform this procedure and nurses who witness it. They have also most 
likely seen information ads or read descriptions of the procedure. 
Maybe they have even watched us debate the issue on prior occasions. I 
will not go through the details of the procedure. I will only say that 
at a minimum it is cruel and inhumane, and when this debate is 
completed, I hope that the Senate will take a stand and ban a procedure 
that diminishes the life of a child that has been born and has exited 
the uterus.
  This debate today is about protecting a fetus, a baby, a life that is 
now destroyed in a cruel and inhumane way. It is about a life that is 
unnecessarily destroyed and it need not happen. We are not really 
talking about banning abortion here, we are talking about banning a 
form of infanticide and it is for this reason that I will gladly vote 
in favor of the ``Partial Birth Abortion Act of 2003.''
  Mr. VOINOVICH. Madam President, today is a glorious day. Today is the 
day that we finally send the Partial-Birth Abortion Ban Act to the 
President for his signature, and we can now begin to save human lives. 
Today's vote is only marred by the fact that it took us so long to get 
here. Just imagine the number of lives we could have saved if we had 
sent this bill to the President 8 months ago, when we first passed it.
  The subject of partial-birth abortion is not a new one for me. Eight 
years ago, when I was Governor of Ohio, we were the first State to pass 
a partial-birth abortion ban, which was unfortunately struck down by 
the courts. Subsequent to that, I watched the partial birth abortion 
ban make its way through the 104th and 105th Congresses, only to be 
vetoed by President Clinton. After I arrived in the Senate in the 106th 
Congress, I gave a speech in support of a partial birth abortion ban 
that passed both chambers but never made it to Conference. I am 
overjoyed that we finally got this done in the 108th Congress!
  During debate on this bill, I listened to my colleagues quote 
statistics and spout off facts about medical necessity and the health 
of the mother. Well, we can all quote different statistics, but the 
bottom line is that there is no need for this procedure. Most of these 
partial birth abortions are elective. They take 3 days to complete and 
are never medically necessary.
  The victims of the partial-birth abortions are human beings. I find 
it interesting that they are sometimes called living fetuses. Whether 
they are called babies or fetuses, no one seems to dispute the fact 
that they are living. In fact, they are human babies and they can feel 
pain.
  I would like to thank all of my colleagues who voted for this very 
important legislation. We can certainly be proud of what we have 
accomplished today!
  Mr. BUNNING. Madam President, today I come to the floor with joy in

[[Page 25422]]

my heart knowing we will finally put an end to the death of unborn 
children through partial-birth abortions. I am joyful that our efforts 
will not go in vain this year because President Bush is eager to sign 
this bill.
  But my heart is also heavy knowing that this procedure has gone on 
too long. Too many children have died in this horrific way. The vast 
majority of Congress has been trying for the better part of a decade to 
ban partial-birth abortions but has been stymied by President Clinton 
and the current minority party in the Senate. I am glad the days of 
obstruction and vetoes have come to an end and this bill will become 
law.
  I can think of no more clear-cut case between right and wrong. All 
one needs to know is a description of the process to understand how 
wrong partial-birth abortions are. First, an abortionist induces 
dilation of the mother so the baby can be almost fully delivered. Next, 
the baby is delivered to the point that only its head remains inside 
the mother. Third, the child is stabbed in the back of the skull with 
scissors or some other sharp object. Finally, a tube is used to suck 
the child's brains out of the hole left by the stabbing.
  There is no gray area or middle ground when it comes to this 
procedure and there are no justifications for it. The child is 
delivered to within inches of breathing its first breath. If the doctor 
lets the head of the baby slip just an inch or two, the child would be 
born and the doctor would be prosecuted for murder. Nevertheless, some 
abortion supporters cannot see through the fog of their fervor to 
realize just how wrong that is.
  I do not mean to suggest that there is widespread support for 
partial-birth abortions. There is not. The vast majority of the 
American people want the procedure to end. Congress has voted 
overwhelmingly many times in the last few years to enact a ban like the 
one before the Senate today. Most doctors oppose the procedure 
including quite a few who perform other forms of abortion.
  There is no evidence that this procedure is ever necessary to 
preserve the health of the mother. In fact, it is quite dangerous. 
Babies being killed in this manner can feel the pain of its skull being 
pierced and have been seen writhing in pain, flailing tiny arms and 
legs until its skull collapses after its brains have been vacuumed out. 
I do not understand how anyone can believe this should go on.
  Doctors and medical researchers have made great progress in fetal 
health care. Babies can be operated on while still in the womb. 
Premature babies can survive outside their mother at younger and 
younger ages. With those and other advancements Americans are 
continually placing a greater value of life. By passing this law 
Congress will further advance the cause of life and send an 
unmistakable message that ours is a just society that values every 
human being and believes in the sanctity of life.
  I look forward to President Bush signing this bill into law. I am 
proud of his support of this bill and for life.
  Mr. NICKLES. Madam President, as I am sure all of my colleagues know 
by now, the procedure banned by this bill--the partial-birth abortion 
procedure--defies description. I am not going to go into the terrible 
details of this procedure which is performed on a living child late in 
pregnancy.
  This is a truly shocking procedure--absolutely indefensible. The term 
``partial-birth'' is perfectly accurate. Some prominent defenders of 
partial-birth abortions insist that anesthesia kills the babies before 
they are removed from the womb. This myth has been refuted by 
professional societies of anesthesiologists. In reality, the babies are 
alive and experience great pain when subjected to a partial-birth 
abortion.
  It has been asserted that this procedure is the only way to prevent 
serious health damage. However, partial-birth abortions are performed 
thousands of times annually on healthy babies of healthy mothers.
  Hundreds of ob-gyns and fetal/maternal specialists, along with former 
Surgeon General Koop have come forward to unequivocally state that 
``partial-birth abortion is never medically necessary to protect 
another's health or her future fertility.'' Thus, the first section of 
S. 3 contains Congress' factual findings that, based upon extensive 
medical evidence compiled during congressional hearings, a partial-
birth abortion is never necessary to preserve the health of a woman.
  In January 2003, even the Alan Guttmacher Institute--an affiliate of 
Planned Parenthood--published a survey of abortion providers that 
estimated that 2,200 abortions were performed by the method in the year 
2000. While that figure is surely low, it is more than triple the 
number that AGI estimated in its most recent previous survey, for 1996.
  The stark fact is that unless this bill becomes law, more innocent 
unborn children will have their lives brutally ended by the inhumane 
partial-birth procedure.
  It is unbelievable to me that this unspeakable abortion procedure 
even exists in this country, much less that we are having to take 
legislative action to ban such a procedure. It is further unbelievable 
to me that anyone in good conscience can even defend the partial-birth 
abortion procedure. It is a fiction to believe that it is all right to 
end the life of a baby whose body, except the head, is fully delivered. 
In order to engage in such a fiction, one has to take the position that 
curling fingers and kicking legs have no life in them. Those who 
subscribe to such a fiction, are at best, terribly misguided.
  As Former Surgeon General C. Everett Koop stated: ``. . . in no way 
can I twist my mind to see that the late-term abortion as described--
you know, partial birth and then destruction of the unborn child before 
the head is born--is a medical necessity for the mother. It certainly 
can't be a necessity for the baby.'' American Medical News, August 19, 
1996.
  Now it is time for the Senate to approve a ban on partial-birth 
abortions. It is time to end this injustice and the practice of this 
inhumane procedure. I urge my colleagues to join me in ending this 
atrocity.
  Mr. BOND. Madam President, I rise today in support of the conference 
report to the Partial-Birth Abortion Ban Act. I am pleased to be a 
cosponsor of this legislation, and I look forward to the day when 
partial-birth abortion is banned once and for all.
  Medical experts agree, partial-birth abortion is not good medicine. 
The Physicians Ad Hoc Coalition for Truth, PHACT, a group of over 500 
doctors, mostly specialists in OB/GYN, maternal and fetal medicine, and 
pediatrics, have stated that partial-birth abortion is never medically 
necessary to protect a woman's health or her fertility. In fact, the 
exact opposite is true; the procedure can pose a significant threat to 
both the pregnant woman's health and her fertility.
  Today we move one step closer to putting an end to this brutal 
procedure. One of life's greatest gifts is our children, and we cannot 
allow them to be victims of this heinous and cruel procedure.
  I have cosponsored this legislation in the past three Congresses, and 
I am a cosponsor of the bill before us today. I am pleased to rise once 
again in support of protecting human life. I hope that Congress will 
deliver this bill to the President, who is eager to sign this bill into 
law.
  Ms. MIKULSKI. Madam President, I rise today in support of the Roe v. 
Wade decision that was made by the Supreme Court over 30 years ago, and 
in opposition to the late term abortion conference report before the 
Senate.
  The Supreme Court's acknowledgement of the fundamental ``right to 
privacy'' in our Constitution gave every woman the right to decide what 
to do with her own body. Since that historic day, women all across the 
country and the world have had improved access to reproductive health 
care and services. However, Congress is on the brink of turning back 
the clock.
  Last month, my colleague from California, Senator Boxer, led a fight 
on the Senate floor to keep Senate passed language in support of Roe v. 
Wade in the late term abortion bill, S. 3. I was disheartened to hear 
that the conference committee stripped the Senate

[[Page 25423]]

passed Roe v. Wade language. The Roe v. Wade decision is important to 
women's rights, women's health, and public health.
  I believe that this bill is the first step in a plan by the 
leadership of this Congress to overturn Roe v. Wade. When President 
Bush signs this bill, he will become the first President since Roe V. 
Wade to recriminalize abortion procedures.
  As I have stated previously on the Senate floor, the bill before us 
is unconstitutional. Just 3 years ago the Supreme Court ruled in 
Stenberg v. Carhart that a Nebraska State law that bans certain 
abortion procedures is unconstitutional. The Supreme Court ruled it was 
unconstitutional for two reasons. First, it did not include an 
exception for a woman's health. Second, it does not clearly define the 
procedure it aims to prohibit and would ban other procedures, sometimes 
used early in pregnancy.
  S. 3 is nearly identical to the Nebraska law the Supreme Court struck 
down. The proponents of this legislation say they have made changes to 
the bill to address the Supreme Court's ruling. They have not. It still 
does not include an exception to protect the health of the woman. It 
still does not clearly define the procedure it claims to prohibit. Let 
me be clear about this. S. 3 is unconstitutional. That is why I 
supported the Durbin substitute when the Senate considered this 
legislation.
  I supported the Durbin amendment because it was consistent with my 
four principles. These are my principles: It respects the 
constitutional under-
pinnings of Roe v. Wade. It prohibits all post-viability abortions, 
regardless of the procedure used. It provides an exception for the life 
and health of a woman, which is both intellectually rigorous and 
compassionate. And it leaves medical decisions in the hands of 
physicians--not politicians. The Durbin alternative addressed this 
difficult issue with the intellectual rigor and seriousness of purpose 
it deserves.
  I strongly support a woman's right to choose and have fought to 
improve women's health during the more than two decades I have served 
in Congress. Whether it is establishing offices of women's health, 
fighting for coverage of contraceptives, or requiring federal quality 
standards for mammography, I will continue the fight to improve women's 
health.
  Congress must protect a woman's freedom of choice that was handed 
down by the Supreme Court over 30 years ago. This Congress must not 
turn back the clock on reproductive choice for women. I urge my 
colleagues to vote against the conference report for the late term 
abortion bill.
  Mr. NELSON of Florida. Madam President, today the Senate considers 
the conference report to accompany S. 3, the Partial-Birth Abortion Ban 
Act, and I want to take this opportunity to explain my vote. I am 
opposed to the procedure known as partial-birth abortion, except in 
cases where the life or physical health of the mother is in jeopardy. 
This legislation does not include an exception to provide for the 
physical health. That means that a physician could determine that a 
woman could be paralyzed for life, and it would not be considered an 
adequate exception under this legislation. Therefore, I must 
respectfully vote against this bill.
  (At the request of Mr. Daschle, the following statement was ordered 
to be printed in the Record)
 Mr. EDWARDS. Madam President, I rise today to express my 
opposition to the conference report to accompany S. 3, the late term 
abortion ban bill.
  As we know, the Supreme Court has ruled on this issue. The Court said 
that a ban on later-term abortion procedures must protect a woman's 
health. In Stenberg V. Carhart, the Court ruled that an abortion ban 
must include a health exception when ``necessary, in appropriate 
medical judgment, for the preservation of the life or health of the 
mother.''
  The bill before us today does not include an exception for a woman's 
health. If this bill becomes law, a woman would be refused this 
procedure even if other procedures would cause her grave harm. While 
late-term abortions should occur only in rare circumstances, this bill 
bans them in all circumstances. That is not constitutional and it is 
not fair to the women who are in the rare circumstances where this 
procedure is required. For this reason, I cannot support this 
bill.
  Mr. FEINGOLD. Madam President, earlier this year, the Senate passed 
S. 3, the Partial Birth Abortion Ban Act. I opposed that bill and 
instead supported a constitutionally sound alternative offered by my 
colleague, Senator Durbin. The Durbin alternative would ban post 
viability abortions unless the woman's life is at risk or the procedure 
is necessary to protect the woman from grievous injury to her physical 
health.
  I understand that people on all sides of this issue hold sincere 
views. I respect those who oppose abortion on principle. Like most 
Americans, I would prefer to live in a world where abortion is 
unnecessary. I support efforts to reduce the number of abortions 
through family planning and counseling to avoid unintended pregnancies. 
I have always believed that decisions in this area are best handled by 
the individuals involved, in consultation with their doctors and guided 
by their own beliefs and unique circumstances, rather than by 
government mandates.
  I support Roe v. Wade, which means that I agree that the government 
can restrict abortions only when there is a compelling state interest 
at stake. I feel very strongly that Congress should seek to regulate 
abortions only within the constitutional parameters set forth by the 
U.S. Supreme Court.
  Unfortunately, the conference report fails to cure the flaws in the 
bill that make it unconstitutional on its face. The conference report's 
description of the procedure that it would ban is so vague and 
overbroad that it could place an undue burden on a women's right to 
choose by encompassing safe and common abortion procedures used prior 
to viability.
  I am also disappointed that the conference report failed to adopt the 
Senate's language in S. 3 reaffirming the Senate's commitment to Roe 
and its belief that Roe should not be overturned. The Senate had a 
straight up-or-down vote on this language, which was offered by my 
colleague Senator Harkin. A majority of the Senate agreed to support 
the Harkin amendment. The House was wrong to remove this language 
during its consideration of the bill, and I am disappointed that the 
conference report failed to adopt the Senate's position on this issue.
  The Senate should only legislate in this area in a way that is 
constitutionally sound. This conference report does not meet that test 
and I cannot support it.
  Ms. CANTWELL. Madam. President, I rise today to express my opposition 
to the conference report to S. 3 the so-called Partial-Birth Abortion 
Ban Act of 2003. This is an unconstitutional piece of legislation that 
puts women's lives in jeopardy.
  Supporters of this bill will argue that this legislation bans only 
one procedure but this is not the case. Make no mistake about it. This 
bill puts us on a path outlawing abortion. The language in this bill is 
vague, and this law could be used to ban other safe and legal 
procedures. Moreover, this legislation imposes an undue burden on a 
woman's ability to choose by banning abortion procedures at any stage 
in a woman's pregnancy. This bill does not only ban post-viability 
abortions, it unconstitutionally restricts women's rights regardless of 
where the woman is in her pregnancy.
  In 1973, in Roe v. Wade, the Supreme Court found that women have a 
constitutional right to choose. However, after the point of viability--
the point at which a baby can live outside its mother's body--States 
may ban abortions as long as they allow exceptions when a woman's life 
or health is in danger. The bill before us, however, restricts 
abortions before viability and it does not include a health exception. 
Let me repeat that. This bill is fundamentally flawed because it does 
not protect the women when her health is in danger.
  In June 2000, the U.S. Supreme Court reinforced the importance of 
this health exception in Stenberg v.

[[Page 25424]]

Carhart, which determined that a Nebraska law banning the performance 
of so-called ``partial birth'' abortions was unconstitutional under Roe 
v. Wade.
  The Supreme Court has stated unequivocally that every abortion 
restriction, including bans on so-called ``partial-birth abortion,'' 
must contain a health exception. The Court emphasized that, by failing 
to provide a health exception, the Nebraska law would place a woman's 
life in danger. That is exactly what the legislation before us today 
does as well: it places a woman's life in danger.
  Despite the Supreme Court's very clear mandate, this underlying 
legislation does not provide an exception for the health of the mother. 
For this reason, this legislation, like the measure that was struck 
down in Stenberg, is unconstitutional.
  I am very disappointed that this conference report does not include 
language passed by the Senate that abortion has been a legal and 
constitutionally protected medical procedure throughout the United 
States since the Supreme Court decision in Roe v. Wade; and that the 
1973 Supreme Court decision in Roe v. Wade established constitutionally 
based limits on the power of states to restrict the right of a woman to 
choose to terminate a pregnancy.
  Furthermore, the amendment firmly laid out the sense of the Senate 
that the decision of the Supreme Court in Roe v. Wade was appropriate 
and secures an important constitutional right and that the decision 
should not be overturned.
  I fundamentally believe that private medical decisions should be made 
by women in consultation with their doctors--not politicians. These 
decisions include the methods by which a physician chooses to treat his 
or her patients. Why should we decide that here on the Senate floor? 
Congressional findings cannot possibly make up for medical consultation 
between a patient and her doctor. This bill, however, would undermine a 
physician's ability to determine the best course of treatment for a 
patient.
  Physicians must be free to make clinical determinations, in 
accordance with medical standards of care, that best safeguard a 
woman's life and health. Women and their families, along with their 
doctors, are simply better than politicians at making decisions about 
their medical care. And I don't want to make those decisions for other 
women.
  During the course of this debate we heard painful stories about women 
who were anxiously awaiting the birth of a child when something went 
horribly wrong. We heard true stories of women who were devastated when 
they discovered that their child had severe health problems and would 
not survive. We heard stories about women who wanted to complete their 
pregnancy and were told by their physicians that, should they do so, 
they would put their health at risk. The truth is that this is a 
heartbreaking, painful, personal decision that should be made by solely 
a woman with the advice of her doctor.
  I trust the health care providers and organizations like the American 
College of Obstetricians and Gynecologists, and the American Medical 
Women's Association who oppose this ban. These physicians know their 
patients, they know their stories, and the painful choices that many 
make, and they know that this ban is wrong. Most importantly, I trust 
the women in my State and around this country to make the decision that 
is right for them. During such a difficult, private time, women should 
be surrounded by those who love and support them. Women should not have 
to listen to rhetoric that demonizes their heartbreak, but should be 
able to receive medically accurate information from a trusted health 
care professional.
  Three States, including my home State of Washington, have considered 
similar bans by referendum. All three failed. We considered this debate 
in my home State in 1998. The referendum failed decisively--by a vote 
of 57 to 43 percent.
  These so-called ``partial-birth'' abortion bans--whether the 
proposals that have been before the Senate in the past or the one 
before us today--are deliberately designed to erode the protections of 
Roe v. Wade, at the expense of women's health and at the expense of a 
woman's right to privacy.
  The Supreme Court, during the 30 years since it recognized the right 
to choose, has consistently required that, when a State restricts 
access to abortion, a woman's health must be the absolute 
consideration. This legislation does not only disavow the Supreme 
Court's explicit directive, but the advice of the medical community, 
and the will of the American people. We must continue to ensure that 
the women of America have the right to privacy and receive the best 
medical attention available.
  Ms. SNOWE. Mr. President, I rise in opposition to the conference 
report on S. 3, the Partial Birth Abortion Act.
  In 1973--26 years ago now--the Supreme Court affirmed for the first 
time a woman's right to choose. This landmark decision was carefully 
crafted to be both balanced and responsible while holding the rights of 
women in America paramount in reproductive decisions. It is clear that 
the underlying Santorum bill does not hold the rights of women 
paramount--instead, it infringes on those rights in the most grievous 
of circumstances.
  Indeed, S. 3 undermines basic tenets of Roe v. Wade, which maintained 
that women have a constitutional right to an abortion, but after 
viability--the time at which it first becomes realistically possible 
for fetal life to be maintained outside the women's body--States could 
ban abortions only if they also allowed exceptions for cases in which a 
woman's life or health is endangered. And the Supreme Court reaffirmed 
their support for exceptions for health of the mother just 3 years ago.
  In Stenberg vs. Carhart, a case involving the constitutionality of 
Nebraska's partial birth abortion ban statute, the Supreme Court 
invalidated the Nebraska statute because it lacks an exception for the 
performance of the D & X dilation and extraction procedure when 
necessary to protect the health of the mother, and because it imposes 
an undue burden on a woman's ability to have an abortion. This case was 
representative of 21 cases throughout the Nation. Regrettably, however, 
Senator Santorum's legislation disregards both Supreme Court decisions 
by not providing an exception for the health of the mother and 
providing only a narrowly defined life exception.
  And let there be no mistake I stand here today to reaffirm that no 
viable fetus should be aborted--by any method--unless it is absolutely 
necessary to protect the life or health of the mother. Period.
  During the Senate consideration of this bill earlier this year, I 
once again cosponsored Senator Durbin's amendment which specifies that 
postviability abortions would only be lawful if the physician 
performing the abortion and an independent physician certified in 
writing that continuation of the pregnancy would threaten the mother's 
life or risk grievous injury to her physical health. It mirrors laws 
already on the books in 41 States, including my home State of Maine, 
which ban postviability abortions while at the same time including life 
and health exceptions mandated by the Supreme Court under Roe v. Wade.
  This amendment, which was tabled during the Senate's debate, would 
have lowered the number of abortions because it bans all postviability 
abortions. S. 3, in contrast, will not prevent a single abortion. 
Sadly, it will force women to choose another potentially, more harmful 
procedure.
  Is this what we really want? To put women's health and lives at risk? 
And shouldn't these most critical decisions be left to those with 
medical training--not politicians?
  The findings in S. 3 would have you believe that this procedure is 
never necessary to preserve the life or health of the mother and that 
in fact it poses significant health risks to a woman. This is simply 
not true. Let me explain why there must be a health exception for 
``grievous physical injury'' in two circumstances.
  First, the language was to apply in those heart-wrenching cases where 
a

[[Page 25425]]

wanted pregnancy seriously threatens the health of the mother. The 
language would allow a doctor in these tragic cases to perform an 
abortion because he or she believes it is critical to preserving the 
health of a woman facing: peripartal cardiomyopathy, a form of cardiac 
failure which is often caused by the pregnancy, which can result in 
death or untreatable heart disease; pre-eclampsia, or high blood 
pressure which is caused by a pregnancy, which can result in kidney 
failure, stroke or death; and uterine ruptures which could result in 
infertility.
  Second, the language also applied when a woman has a life-threatening 
condition which requires life-saving treatment. It applies to those 
tragic cases, for example, when a woman needs chemotherapy when 
pregnant, so the families face the terrible choice of continuing the 
pregnancy or providing life-saving treatment. These conditions include: 
breast cancer; lymphoma, which has a 50 percent mortality rate if 
untreated; and primary pulmonary hypertension, which has a 50 percent 
maternal mortality rate.
  Now, I ask my colleagues, who could seriously object under these 
circumstances?
  I cosponsored this amendment because I believed that it was a 
commonsense approach to a serious problem for American women and a 
contentious issue for the United States Congress. Unfortunately, the 
omission of this or any other exemption from this ban in cases when the 
life of the mother is threatened poses a significant and likely a 
constitutional problem, and without such an exception, I cannot support 
this conference report.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. I understand I have a minute, 51 seconds remaining.
  The PRESIDING OFFICER. The Senator is correct.
  Mrs. BOXER. I understand Senator Frist will take some leader time and 
Senator Daschle has given me 4 minutes of his leadership time, so I 
will speak for about 6 minutes if that is all right.
  The PRESIDING OFFICER (Mrs. Dole). Without objection, the Senator may 
use the leader's time.
  Mrs. BOXER. Madam President, I, too, thank everyone involved in this 
debate on both sides because I think it has been a very enlightening 
debate. I have been on the Senate floor about this bill many times. 
This particular debate brought out so many issues.
  I also thank the many women who experienced this procedure, who were 
able to come to Washington on many occasions to tell us what their 
world was like when they found out late in the pregnancy that something 
had gone horribly wrong and the doctor told them that their baby could 
never live outside of their womb and the doctor told them if they did 
not have the procedure that is being banned in this bill, they could 
suffer a stroke, they could suffer paralysis, they could lose their 
fertility. These women came out and put a face on this issue, a real, 
human face; many of them very religious, many anti-choice, who said 
this was an excruciatingly difficult choice, but they knew it was right 
for themselves and their baby.
  What we are about to do today--and I have no illusions; I know this 
bill will pass--we are about to ban a procedure that doctors say is 
needed to save the life and health of a woman. If I went up to you on 
the street and I said, I know there is a medical procedure that is 
sometimes necessary to save the life and health of a woman, would you 
want to ban it or would you be willing to ban it except for those 
occasions when it is necessary. I think and I know most Americans would 
do the humane thing and say absolutely, we want to make an exception 
for life and health. That is not what is done in this bill.
  The doctors tell us this is a dangerous piece of legislation. The 
doctors tell us this is an unconscionable piece of legislation. The 
doctors tell us that women's lives and health will be put at risk if we 
pass this. I happen to believe, on issues such as these, we have to 
turn to the women themselves who have faced this agonizing decision, 
and to the doctors, the OB/GYMs whose job it is to bring life into the 
world.
  Well, when we have done that, they have told us not to go this route, 
that if we are going to ban the procedure, always to have an exception, 
always for the life and health of the woman. Yet this Senate is going 
to turn its back on the women of this country, turn its collective back 
on the doctors of this country, and basically outlaw a procedure they 
say is necessary.
  When the President signs this bill--and he will do so--it will be the 
first time in history any President of either party has banned a 
medical procedure that is necessary to save the life and health of the 
people of this country. I think that is a historic moment, and I think 
the people of this country will understand all of the ramifications. 
There is no question about that.
  To make it clear, I will reiterate what many of my colleagues who are 
pro-choice have said. We believe Roe v. Wade was rightly decided. We 
believe it balanced all the interests that were before the Court. We 
believe when the Court said, in the very early stages of a pregnancy, 
Senators, Congress people, stay out of this decision, they were right. 
When the Court said, in the late stages of a pregnancy, the State can 
control what occurs in an abortion, but always with an exception for 
the life and health of a woman, we believe that is right.
  Now the other side tells us: Oh, well, this bill has nothing to do 
with Roe v. Wade. It does not in any way challenge Roe v. Wade. Well, 
that is just untrue on its face. The Court has already ruled in the 
Nebraska case that when you do not make an exception for health, when 
you have vague definitions, that is violative of Roe.
  What we are doing is passing a piece of legislation that will be 
signed with great fanfare, and it will be declared unconstitutional 
across the street. Instead, we could have joined hands across party 
lines, we could have joined hands across ideological lines, we could 
have banned every single late-term abortion with an exception for life 
and health, but the other side refuses to do this--refuses to do this. 
I do not understand how you can stand here and say you are doing the 
right thing by the women in this country and not make an exception to 
protect the health of a mother.
  I hope many of us will vote this down. I have no illusions in the 
final vote, but it has been an excellent debate. I hope America was 
listening.
  I thank you very much.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Madam President, I know I just have a few seconds, but 
I do want to recognize the tremendous effort and work the majority 
leader has made over the years on this issue. His presentation, when he 
first came to the Senate, as the only physician in the Senate, was 
compelling, persuasive, and I think one of the things that allowed us 
to get the 60-plus votes we needed to have this bill passed on previous 
occasions and now gives us the margin we have today. He is to share a 
significant amount of credit for today's victory.
  Thank you, Madam President.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Madam President, on leader time, I will use just a 
remaining few minutes.
  The partial-birth abortion ban is finally at the finishing line. I 
expect today the Senate will vote for the last time to end this morally 
reprehensible procedure. We will have a bill on the President's desk, 
and this President will sign the ban into law.
  As a physician and as a board-certified surgeon, I can say without 
equivocation that partial-birth abortion is brutal, it is barbaric, it 
is morally offensive, and it is outside of the mainstream practice of 
medicine.
  Contrary to the claims of its supporters, partial-birth abortion is a 
fringe procedure outside of the mainstream. It is not performed by 
people who are board-certified surgeons. It is not found in common 
medical textbooks. It is not taught in our surgical residency programs.
  The sole purpose of this partial-birth abortion is to deliver a dead 
baby. It is not, as some insist, to protect the life

[[Page 25426]]

of the mother. In fact, partial-birth abortion, as we have heard again 
and again, is dangerous to the health of the mother, more dangerous 
than other alternatives. We could go on and on with these undeniable 
medical facts in greater detail, but something larger is at stake, and 
we speak to that powerfully with this vote today.
  Beyond even the ethical practice of medicine, our Nation's charter, 
the Declaration of Independence, asserts our Creator has blessed us 
with certain rights--rights from which we, as beings made in God's 
image and likeness, cannot be alienated.
  In destroying the body of a mature, unborn child, we are alienating 
that child from his or her most essential right; and that is, the right 
to life.
  In doing so, we are violating the very premise of our Republic--that 
our rights are enduring gifts of God, not privileges to be revoked by 
human whim.
  In Evangelium vitae, Pope John Paul II tells us true human freedom is 
rooted in a ``culture of life.''
  We will reaffirm in this Chamber that human personhood is precious, 
that doing no harm is still the bedrock of medical morality, and that 
we have the will to stop a practice we know is evil and morally 
reprehensible.
  I yield back the remainder of the time.
  Mrs. BOXER. Madam President, I ask unanimous consent that I be 
allowed to speak for 2 minutes from Senator Daschle's leader time.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from California.
  Mrs. BOXER. Thank you.
  Madam President, I want to reply to what the good Senator has said, 
with great respect, when he says this procedure is outside the 
mainstream. I want to point out, I respect his opinion, but I think 
doctors who have gone into OB/GYN, if that is their field--I do not 
believe the American College of OB/GYNs--45,000 doctors--are out of the 
mainstream. I do not believe the American Medical Women's Association--
10,000 female doctors--are outside the mainstream. Nor do I believe the 
American Public Health Association--thousands of doctors--are outside 
the mainstream.
  So although I totally respect the opinion of my colleague, and I 
would fight for his right to have it, and his right to believe what he 
does, I think it is a bit dismissive of the mainstream OB/GYN doctors 
in this country, all of whom have told us, please do not pass this ban 
that they have said is dangerous to women. They have said, to use their 
words, it is risky to women, and they are very upset about it.
  I did not want the Senate to believe these organizations back this 
bill, because they do not. We have put those letters into the Record.
  I thank you very much.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Madam President, obviously we have a strong disagreement 
in the statements that were just made. Let me finally close by saying 
this is a brutal procedure. It is a barbaric procedure. It offends the 
sensibilities of 90 percent or more of Americans. It is outside of 
mainstream medicine as practiced in the United States of America today.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the conference report. The clerk will 
call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Texas (Mrs. 
Hutchison) is necessarily absent.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 64, nays 34, as follows:

                      [Rollcall Vote No. 402 Leg.]

                                YEAS--64

     Alexander
     Allard
     Allen
     Bayh
     Bennett
     Biden
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Carper
     Chambliss
     Cochran
     Coleman
     Conrad
     Cornyn
     Craig
     Crapo
     Daschle
     DeWine
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hollings
     Inhofe
     Johnson
     Kyl
     Landrieu
     Leahy
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Pryor
     Reid
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--34

     Akaka
     Baucus
     Bingaman
     Boxer
     Cantwell
     Chafee
     Clinton
     Collins
     Corzine
     Dayton
     Dodd
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Inouye
     Jeffords
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Levin
     Lieberman
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Stabenow
     Wyden

                             NOT VOTING--2

     Edwards
       Hutchison
       
  The conference report was agreed to.
  Mr. McCONNELL. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________