[Congressional Record (Bound Edition), Volume 149 (2003), Part 5]
[Senate]
[Pages 5699-5740]
[From the U.S. Government Publishing Office, www.gpo.gov]




           PARTIAL-BIRTH ABORTION BAN ACT OF 2003--Continued

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. If I could ask a question of the manager of the bill, the 
distinguished Senator from Pennsylvania, has the Senator had an 
opportunity to look over the unanimous consent request that we 
submitted to staff earlier today regarding the late-term abortion 
matter that is now before the Senate?
  Mr. SANTORUM. We have been reviewing the one amendment. Has the 
Senator submitted all the other amendments? Only one amendment has been 
submitted, to my knowledge.
  Mr. REID. I apologize for that. I thought staff had all the 
amendments, but the Senator does have our amendment, of course. It has 
been filed.
  Mr. SANTORUM. We have one amendment. That is the only one I am aware 
that we have.
  Mr. REID. We will make sure the Senator gets all the amendments. Can 
we agree on a time on this amendment before us without any second-
degree amendments?
  Mr. SANTORUM. Yes. In fact, I just spoke to the Senator from 
Washington about this.
  Mr. REID. I am sorry.
  Mr. SANTORUM. I suggested we would be willing to accept the 
amendment. She has requested that we have a rollcall vote of some sort. 
I am happy to agree on a reasonable time agreement.
  Mr. REID. That would be fine. We would be happy to.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SANTORUM. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SANTORUM. Mr. President, we are working in good faith. I thank 
the Democratic whip for his willingness to try to work through these 
amendments. We are reviewing, on our side, the Murray amendment. There 
may be some concerns about it. We are hopeful to get a resolution and 
enter into a unanimous consent agreement on the disposition of that 
amendment.
  We have just been handed another amendment. That is a positive step, 
a step in the right direction. We are hopeful we can proceed with a 
vote on the Murray amendment sometime today, and maybe another vote 
later this evening; if not, tomorrow morning. So there are fewer than a 
half dozen amendments we are aware of on this legislation. It looks as 
though we are making some progress.
  Again, I thank the other side of the aisle for their cooperation.
  I want to go back and go over some of the issues that have been 
discussed today about the underlying bill, which is the Partial-Birth 
Abortion Ban Act, and provide the context in which this legislation 
comes to the floor of the Senate.
  Back three Congresses ago, in 1995 and 1996, this procedure had been 
unearthed, if you will. There was some medical literature that some 
Members of Congress found so abhorrent, for obvious reasons, that there 
was a strong belief that this procedure should be banned. So for three 
consecutive Congresses, the House of Representatives and, for two of 
those Congresses, the Senate debated this issue--always being blocked 
by the President of the United States and then, on the third attempt, 
by the U.S. Supreme Court.
  We are now here with a version of the bill that is different from the 
previous versions. The version that was considered by the U.S. Supreme 
Court.
  The reason we are back is not just to say the Court was wrong or that 
we disagree with the Court's judgment on constitutionality, although I 
do. I have to say the Court's view of the constitutionality of abortion 
statutes is really quite remarkable. It is not, as has been depicted by 
many on the other side with whom we have debated this issue in the 
past, that Roe v. Wade allows absolute freedom of choice in the first 
trimester, provides some limitations in the second, greater limitations 
in the third trimester. Lots of statements have been made on the floor 
that that is the case. Statements have been reported in the press. The 
press themselves have adopted this analysis of Roe v. Wade.
  That is not what Roe v. Wade says--or Doe v. Bolton, its companion 
case--and not what subsequent cases from the U.S. Supreme Court have 
held. If that were the case, then the U.S. Supreme Court would have 
upheld the partial-birth abortion case.
  Why? Because if there are legitimate restrictions on the right to 
abortion in the second and third trimester, I can't imagine a more 
legitimate restriction. But that is not what the Court has said. The 
Court has basically said there are no restrictions on abortion. It 
really is quite amazing that a right that was created, as I understand, 
by judicial fiat, not by the legislative process and not by the 
constitutional amendment process--I dare anyone to look at the U.S. 
Constitution and find the right to abortion. It does not exist in the 
U.S. Constitution. But by judicial fiat, by an act of judicial 
activism, this right was created.
  Interestingly enough, this right, since it was created by nine 
people,

[[Page 5700]]

they have no limitation on how they define it because there is nothing 
in the written Constitution that limits their own interpretation. It is 
what they say it is. It is a pure case of positive law created by an 
unelected group of men at the time.
  What they are saying is absolutely right. There are no restrictions--
none. I would challenge any of you to go through the Constitution, go 
through the Bill of Rights, and look at the rights within our 
Constitution and find another right in the Constitution that has no 
limit, that has no restriction. Every other right written in the 
Constitution has a limit, has curbs. The courts have permitted it, 
except this right that doesn't exist in the Constitution.
  When we approach this issue of partial-birth in trying to find, in a 
sense, a way to put this procedure outside of Roe, I would argue that 
was the argument all along. And I believe back in 1996 when I argued 
this, it did not belong under Roe v. Wade. There are no health concerns 
of the mother. That is what makes all of the abortion basically 
unlimited up until the moment that the child is separated from the 
mother; that there is always a reason for the health of the mother and 
health defined under Roe v. Bolton means anything--stress, anxiety, 
fear. Anything associated with mental or physical health counts for 
allowing abortion up to the time of the separation of the child from 
the mother.
  That is why I said there are simply no restrictions. We looked and 
questioned whether the partial-birth abortion procedure affects the 
health of women. The answer is clearly no, It does not.
  There is a huge amount of congressional testimony both here in the 
Senate, with debates on the floor, debates on the floor of the House, 
testimony, overwhelming evidence, dispositive evidence that this 
procedure is never--I underscore the word ``never''--medically 
necessary to preserve the health of the mother. That is a strong word, 
``never.'' That is an absolute term--``never.'' I use it with complete 
comfort--and have for 7 years here on the floor of the U.S. Senate. I 
did earlier today when I said, as I have repeated over and over again 
to those who believe that a health exception is necessary, give me a 
medical case in which a partial-birth abortion is medically necessary 
to preserve the health of the woman. Give me a case where it is 
preferable--not just necessary, where it is preferable. I can give you 
quote after quote, from the AMA to C. Everett Koop to the experts in 
late-term abortions, all of whom have said not only isn't it medically 
necessary but it is bad medicine. It is unhealthy. It is 
contraindicated.
  The overwhelming body of medical evidence is that it is outside the 
scope of medicine. It is not taught in medical schools anywhere. It is 
not done in hospitals. It is done in abortion clinics. Why? Ask the 
doctor who designed the procedure. The doctor who designed the 
procedure said he did it for one reason. He could do more abortions in 
a day because this procedure took 15 minutes, and the other late-term 
abortion procedures took 40 minutes. He could do more abortions. He 
could make more money.
  When we hear this debate from those on the other side who talk about 
how we have to be compassionate for the health of mothers, let me 
assure you, as a father of seven children, I am very compassionate to 
the health of mothers during pregnancy. This is not a procedure that 
was contemplated to be helpful to the health of mothers or is necessary 
or is even preferable to preserve the health of mothers. This is a 
rogue procedure. This is a gruesome, brutal procedure where the doctor 
delivers a child in a breech position.
  I just try to imagine myself in that position, having been at the 
birth of seven children, seeing that delivery, being there and seeing 
how the doctor carefully handles the child being delivered. As you will 
see in the chart, the doctor is holding this child alive. This baby is 
alive in the abortionist's hand. He has his hand wrapped around this 
child, which is alive, moving, feeling, heart beating, and nerves 
feeling.
  As you can see on the chart, a doctor is holding the child in his 
hand.
  The Senator from Tennessee is here, and I will yield to let him 
speak.
  But I know what doctors are instructed to do when faced with a living 
human being in their care. I know the instinct has to be, How can I 
help this patient? But in the case of a partial-birth abortion, this 
child doesn't count as a patient. Nevertheless, it is a human being.
  If you look at this chart, this is clearly a human being. This is a 
child with 10 toes, 10 fingers, arms, and legs. This is a human being, 
and nothing but a human being.
  Look at the hands of that doctor grasping this child, grasping this 
living human being, holding it--a doctor who took a Hippocratic oath 
holding this human being in his or her hand.
  I just try to imagine what goes through the doctor's mind when he 
takes a pair of scissors and probes this living being whose nerves 
work, whose brain functions, whose heart is beating, and finds the 
place to thrust a pair of scissors into the baby's skull; holding this 
child, feeling the child's pain, feeling its reaction to being 
executed, and then proceeding to suction the child's brains.
  I am just troubled that we allow this to continue in America; that we 
allow this procedure to be used by people who are there to heal. What 
we say to so many in our society is how we value life, and yet we let 
the most vulnerable among us be treated in such a fashion.
  Our leader is here. I will be happy to stop with my remarks and yield 
the floor.
  The PRESIDING OFFICER (Mr. Crapo). The majority leader is recognized.
  Mr. FRIST. Mr. President, I rise in support of the Partial-Birth 
Abortion Ban Act of 2003. I want to spend a few minutes discussing the 
underlying bill, and then later have an opportunity to come back and 
talk specifically about some amendments that will be coming to the 
floor.
  I will in part be talking about the procedure as a medical procedure, 
and also discuss some of the myths that surround the very specific 
procedure that is defined in this particular bill.
  I rise to speak on this particular issue with a deep passion not only 
for the protection of life but also for the ethical practice of 
medicine.
  Before coming to the Senate, I had the opportunity to study and 
practice medicine for 20 years. Although I am not an obstetrician, I 
have delivered many babies in the past. I have had the privilege, as a 
cardiovascular surgeon, to operate on a number of premature infants 
born probably about 3 or 4 weeks later than the infant--or the fetus, 
in this case--that is depicted in this picture, about 3 weeks after 
that.
  I do speak as a surgeon and a board-certified surgeon. This is a 
surgical procedure. I have had the opportunity to do thousands of 
surgical procedures as well as mend the hearts and vascular systems on 
babies this size.
  As a surgeon, let me say that there are certain ethical bounds to the 
application of surgical procedures, and these are bounds that in a 
moral sense should never be crossed by a surgeon. It is interesting 
that the people who developed this procedure, and its loudest 
proponents, are not surgeons but practitioners, and they are not board 
certified in a field that would be consistent with performing 
procedures such as this. That is important because people have this 
image that once recognizing there are hundreds and indeed thousands of 
these procedures, in all likelihood, performed every year, that you 
would have certified surgeons performing them, but that is not the 
case. For the most part, general practitioners are performing these 
procedures.
  From a medical standpoint, I took an oath to treat every human life 
with respect, with dignity, and with compassion. Abortion takes life 
away, and partial-birth abortion, this particular procedure, does so in 
a manner that is brutal, barbaric, and morally offensive to the medical 
community.
  I will not concentrate on the politics of partial-birth abortion, but 
talk a little bit about the disturbing facts of partial-birth abortion 
as a surgical procedure, a procedure that clearly should and must be 
banned.

[[Page 5701]]

  The fact is that partial-birth abortion is a repulsive procedure. The 
procedure is straightforward in description; people have seen the 
various charts. This depicts a late stage in that particular procedure. 
It begins, as described by its greatest advocate, by, inside the 
uterus, manipulating the fetus and turning the fetus around so it can 
be delivered feet first, delivering the feet through the uterus and 
through the cervical canal to the position that is depicted in this 
particular diagram, and then taking scissors which are about 8 inches 
long, called Metzenbaum scissors, and thrusting them into the back of 
the base of the skull. Then, because that opening is not sufficient to 
drain the brains from the fetus itself, it requires a forcible opening 
of the scissors. If you were to take a regular pair of scissors--
although the Metzenbaum scissors are longer--forcibly opening those 
scissors so the end of the scissors will split the skull wider so the 
brain can be evacuated and other contents within the skull.
  Once the skull is allowed to collapse because of the evacuation of 
the brain and the intracranial contents, the skull itself collapses. 
And you can see how large the skull is to actually come through the 
cervical canal and through the birthing canal. It is necessary at this 
late stage because, as you can see, this, if born now, would be a 
premature infant. I will come to what the survival is if at this stage 
this fetus was actually delivered alive instead of dead.
  The thrusting of the scissors into the base of the skull and the 
cranium itself takes this living fetus and kills the fetus itself. One 
of the problems is at this late stage in development, the neurological 
system is fully developed, fully developed to the point that with 
cervical blocks, which is the type of anesthesia typically used, or as 
is described by the father to this procedure, the fetus itself will 
feel that pain of thrusting the scissors in the back of the head.
  This particular procedure is most commonly performed between 20 and 
27 weeks. That is in the second trimester of pregnancy. People ask how 
far developed the fetus is. Pictorially, that gives you a pretty good 
idea of how well developed the fetus is. But to put that in 
perspective, 20 to 27 weeks, that is when most of these are performed. 
If you look at the early side of that, between 20 and 23 weeks, if that 
fetus was not killed but was just delivered at that point in time, 
overall survival today is about 30 to 50 percent. If you go to the 
period of 24 to 25 weeks--remember, this procedure is performed between 
20 and 27 weeks--overall survival if the fetus had not been killed by 
using the scissors, the survival rate would be around 60 to 90 percent.
  So these are premature infants. That is why people such as Senator 
Moynihan, who used to be in this body, call it the equivalent of 
infanticide, because these are performed at a time where if the infant 
were not killed, the infant would be delivered and although, yes, 
premature, would have better than a 50/50 percent chance of survival.
  So when you hear about the procedure itself and you listen to the 
description, it is hard to imagine a more grotesque treatment or 
tortuous treatment of what, if delivered without being first killed, 
would face a fighting chance of being a healthy human being.
  Partial-birth abortion exists today. The procedure is performed in 
America every day. That is the reason this body, I believe strongly, 
must act and act with a ban to put a stop to this morally offensive 
procedure that is a fringe procedure, that is a rogue procedure that is 
being applied each and every day. We must stop it.
  The reason I describe--it is worth looking at these pictures--this 
procedure in detail is not to shock. That is not the purpose. It really 
is to inform. The description I gave you is a typical medical way of 
describing the procedure itself. I will say, being a physician and 
being board certified, it is my responsibility not to shock but to 
depict the procedure as spelled out in the bill, a very specific 
procedure as it really is, the reality of the procedure itself.
  It is critical that we debate this in terms of that framework of 
reality, no matter how disturbing the reality is.
  There are a number of arguments by people who say, no, we should 
allow this procedure, as morally offensive and repulsive as it is, to 
continue.
  I would like to take some of those myths. I will present them as 
myths because that is what they are. First, some say that partial-birth 
abortion may be necessary to preserve the health of the mother. That is 
not true. Never has partial-birth abortion, the specific procedure that 
is described in the bill itself, never has it been the only procedure 
or the best procedure available in the case of a medical emergency. You 
have to remember that this procedure takes 3 days. In fact, the 
alternative procedure--I am not an advocate of the alternative 
procedure that is accepted within the medical community--does not take 
3 days. So when you are talking about medical emergencies and people 
say, it is the best alternative out there, that is not true. It is a 
dangerous procedure.
  The only advantage I can see of partial-birth abortion--which is a 
disturbing advantage; therefore, I wouldn't call it an advantage or a 
benefit--is the guarantee, by the thrusting of the scissors into the 
brain and evacuation of the brain, of a dead infant.
  Still, in the remote chance--and I argue hypothetical, because I have 
not been able to talk to anybody today who has said partial-birth 
abortion would be required to save the life of a mother because, 
remember, it takes 3 days. When you have procedures that are within 
ethical bounds, accepted by the medical profession and taught in 
medical schools, you have alternative procedures. But in the remote 
chance--again I argue hypothetical--the ban would not apply if it were 
to save the life of the mother.
  Second, some would say that partial-birth abortion is the best option 
to preserve the health of the mother. I argue, no, it is a dangerous 
option. Let me paraphrase an article in the Journal of the American 
Medical Association, published on August 26, 1998. There are ``no 
credible studies'' on partial-birth abortion that ``evaluate or attest 
to its safety'' for the mother. Partial-birth abortion, as described in 
the bill, is more dangerous to the health of the mother than the 
alternative procedures. There is a much greater danger.
  The cervix itself is right here on the chart. This is the uterine 
cavity. You see the size of the head and the instrumentation of the 
hand and the instruments, which expand the cervix, which is the 
smallest part of the bottom of the uterus. When you overextend and 
expand that, you come to what is called cervical incompetence. This 
comes to the health of the mother long term, because cervical 
incompetence can have longstanding side effects to the mother.
  Right here, those are the Metzenbaum scissors. It looks like a 
suction device. You can see those are about 8 inches long. Metzenbaum 
was the person who first described these scissors. The blunt 
instrumentation is done blindly. You cannot see. What you are doing is 
putting two fingers down, pulling down on the shoulders, putting the 
scissors on the top, and feeling this little indentation and thrusting 
inside. It is all done blindly--the manipulation of the two fingers and 
the manipulation of turning the fetus itself, as well as putting in the 
blunt instrument of the scissors. Once you insert the scissors that 
deeply into the uterus blindly, forcibly into the skull, if it doesn't 
go into the skull, it perforates the uterus.
  The alternative procedures today--again, I am not supporting third 
trimester abortions and, to me, they are all repulsive. But it is 
important for people to know the alterative procedures don't involve 
the Metzenbaum scissors. It is done with an injection into the heart 
itself directly, or guided by ultrasound, very carefully controlled. It 
is not this blind procedure.
  Comparing the various procedures is important because we keep hearing 
from certain people that this is the safest, or will be the safest or 
best alternative. It is simply not true. It is more dangerous. There is 
the danger of infection because of the increased manipulation that is 
required in this procedure itself, secondary to the performance of this 
procedure.

[[Page 5702]]

  The third myth is the medical community--I was jotting notes when 
people were saying it infringes on the doctor-patient relationship. It 
says specific medical procedures that should not be banned by Congress. 
You know, first of all, that is not true. As a physician, you don't 
like big government coming in and telling you what you can and cannot 
do. Most people in life don't like Government intruding into their 
lives. And that doctor-patient relationship being as special as it is, 
you don't want Government coming in and saying yes, no, come in with 
that procedure. I feel the same way, generally. But as I opened up, I 
said there are certain ethical bounds and, yes, as a profession, we 
take certain oaths. One of them is the Hippocratic oath of doing no 
harm. But there is a certain ethical boundary and framework that, no 
matter who or what you are, you never go outside. But we have people 
going outside those ethical bounds. I argue that they are hurting 
women, when alternative procedures that are much safer are available. 
Thus, we must put a stop to that. And because it is performed every 
day, and it is outside of the ethical bounds, we are obligated to 
redefine those bounds in this particular case.
  The bill says this is a rogue procedure that is never medically 
necessary and is condemned by the medical community. It has absolutely 
no place in the doctor-patient relationship. This is where the myth 
comes in, because that relationship is built on trust. That is the 
whole essence of the relationship between a woman and her physician, or 
a patient and a doctor. That trust has got to be built on moral 
behavior. What makes medicine a profession is this body of professional 
ethics, coupled with the specialized knowledge; and this goes outside 
the bounds of that framework of ethics, of morality.
  Thus, I argue that this procedure, performed as it is across this 
country today, is offensive, is repulsive to this whole concept of the 
doctor-patient relationship, which is built on trust and moral 
behavior. This procedure is not moral.
  People have made comments, ``Where is the AMA?'' There have been 
statements that the AMA does not oppose partial-birth abortion, or 
does. Let me just say the American Medical Association has supported 
this ban in the past. They oppose this specific procedure in this bill 
better, I would say, because it is more specifically defined than in 
the past bills; they oppose this specific procedure.
  People say, well, the AMA is not out there saying this is the 
greatest bill on earth today. That is because it goes back to what I 
said, that they don't like the idea of anybody coming in and telling a 
professional what to do and what not to do. Let me leap back to what I 
said, and then I will go back.
  The people who invented the procedure are not surgeons. They are not 
board certified. They operate outside the peer-reviewed literature. You 
cannot really go and find--because it is not accepted--this particular 
procedure in the peer-reviewed literature, which shows a certain amount 
of acceptance and respect in the mainstream community. It is simply not 
there.
  The fourth myth I want to comment on is that some say making these 
specific techniques of partial-birth abortion a crime would make 
performing all late-term abortions almost impossible, and it would 
discourage doctors from performing legal abortions in all 
circumstances. I put this second to last in terms of the myths. I 
oppose abortions, but for those people who believe in abortions, it is 
important for them to know this is a myth. I can say that because in 
the bill, the partial-birth abortion is very specifically and tightly 
worded and described, so that the ban, or the prohibition, would be 
just on the techniques that were described earlier and that have been 
pictorially described on the floor of the Senate--that is, the partial-
birth abortion procedure.
  There are alternative procedures, and I also find those offensive; 
but some people do not find them offensive. Those would still be legal. 
So this idea that a very tightly worded ban on a specific procedure, 
which is a subset of other types of procedures that are done, would 
stop, would make all abortions illegal, is simply not true. Again, I 
come back to those alterative methods are safer.
  The fifth and last myth is that some say partial-birth abortion is 
accepted as mainstream medicine. That is not true. This is a fringe 
procedure. It is not found in the common medical gynecological 
textbooks, obstetrics textbooks that our medical students are taught 
with today. It is not taught in medical schools or surgical residency 
programs. It is outside the mainstream. If one looks at all the 
obstetrics and gynecologic residency programs, only 7 percent provide 
routine training for even mainstream third-trimester or late abortions. 
That is only 7 percent. To the best of my knowledge, none--none--in the 
residency programs teaches or would teach this specifically described 
partial-birth abortion procedure.
  Today's doctors are simply not trained with this procedure--yet we 
have people performing it--because it is dangerous, because it is a 
rogue procedure, and because it is outside the mainstream of generally 
accepted medical and surgical practice.
  I will mention one last time, the most prominent practitioners of 
partial-birth abortions are not trained obstetricians, but are general 
practitioners. Partial-birth abortion is an affront to the safe and 
reputable practice of medicine.
  The question often arises as to how often these abortions, using this 
technique, are performed. It is hard to get good data, but if we look 
at the data that is provided and that we can collect, it is not as 
uncommon a practice as one might think.
  In 1996, the research arm of Planned Parenthood asked doctors for the 
first time a question on partial-birth abortion. The question produced 
an estimate at that point in time, 1996, that 650 such abortions were 
performed using this technique annually in the United States. The same 
survey found that in the year 2000, over 2,200 partial-birth abortions 
were performed in the United States--2,200 deaths purposely caused by 
this technique, by this rogue procedure. That is why we have this call 
to action which we have debated on this floor now in this Congress and, 
indeed, in the last Congress and in the Congress before that.
  An interesting side piece of data is that Kansas, the only State that 
requires separate reporting for partial-birth abortions, in 1999 said 
182 procedures of partial-birth abortion were performed on viable 
fetuses. Of interest to all, 182 of those procedures were performed for 
mental health reasons, but not for physical health reasons--not for 
physical health reasons. It is important to understand because we have 
an exclusion for life of the mother, but none of those was performed 
for life of the mother. Why? Because there are alternative procedures 
that are safer and quicker and less invasive for the mother.
  A vast majority of Americans support a ban on partial-birth abortion. 
Their will was reflected in the 104th Congress and in the 105th 
Congress, and in both of those Congresses the House of Representatives 
passed this ban and the Senate passed this ban. Sadly, both of those 
efforts were vetoed by President Clinton.
  Today, partial-birth abortion remains the law of the land, and we are 
going to change that. It is going to be changed in this body, and 
hopefully we can complete this bill tomorrow night and then move to the 
House of Representatives and then a bill will be sent to the President 
which I expect will be signed.
  Partial-birth abortion is a morally offensive procedure. It is time 
to ban it. We as a society respect human life far too much to let it be 
ravaged in such an inhumane way: a living infant partially delivered, 
stabbed with 8-inch scissors, emptied of the contents of its skull, and 
then pulled from its mother dead. Never has this procedure been the 
only or the best one available to protect the health of the mother. In 
fact, as I pointed out, partial-birth abortion carries a greater risk 
of doing harm. That is why this procedure is morally offensive to 
doctors, not only as individuals but as professionals.

[[Page 5703]]

  In closing, I ask my colleagues, as we debate this bill, that we do 
so with the barbaric reality, with the brutal reality of this heinous 
procedure in mind, and not be sidetracked by the myths of partial-birth 
abortion, especially that would in any way imply that this is an 
accepted mainstream medical procedure. It simply is not.
  Instead, we need to ask one simple question: Does partial-birth 
abortion carry the danger of doing unnecessary harm to a mother, to an 
infant, and to our conscience as a nation that values the sanctity of 
human life? The answer is yes. That is how I will vote, and I urge my 
colleagues to vote the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, will the distinguished leader yield?
  Mr. FRIST. Mr. President, I will yield.
  Mr. BYRD. Mr. President, I ask unanimous consent that I may ask a 
question without losing my right to the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. How did I vote on this question the last time we voted?
  Mr. FRIST. Mr. President, I will find out shortly how the 
distinguished Senator from West Virginia did vote.
  Mr. BYRD. I thank the distinguished leader.
  Mr. FRIST. Mr. President, I am informed that in the 106th Congress, 
the Senator from West Virginia voted yes to ban this procedure.
  Mr. BYRD. I thank the distinguished leader.
  Mr. President, I see two other Senators here who have been waiting. I 
have the floor, do I not?
  The PRESIDING OFFICER. The Senator does have the floor.
  Mr. BYRD. I thank the Chair. I hope I can yield to the distinguished 
Senator from California, Mrs. Boxer--for how long?
  Mrs. BOXER. Ten minutes.
  Mr. BYRD. Ten minutes, without losing my right to the floor, and then 
I may yield to the distinguished Senator from Ohio, my next-door 
neighbor, for 15 minutes, without losing my right to the floor, and 
that I will then be recognized as I am now recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. I thank the Chair. I thank all Senators.
  The PRESIDING OFFICER. The Senator from California is recognized for 
10 minutes.
  Mrs. BOXER. Will the Chair please inform me when I have a minute 
left?
  The PRESIDING OFFICER. The Senator will be informed.
  Mrs. BOXER. Mr. President, when a bill that deals with a medical 
procedure comes before the Senate, that in itself is very rare. When a 
bill comes before the Senate that bans a medical procedure that many 
women have stated saved their lives, preserved their fertility, stopped 
them from having a severe health impact, I think it is important to 
turn to the people who know the most about this, and that is the OB/
GYNs who choose, as their way of life, delivering children, who get 
their satisfaction in their work by staying close to a pregnant woman 
and seeing her through a pregnancy.
  Hearing Senator Frist's comments is very interesting to me, but I 
have to say I have read his bio, and there is nothing in here about 
delivering babies. Maybe he did when he was in school or as a resident. 
But what we are talking about here is OB/GYNs. What do they think? Why 
is that important? Because that is their life.
  Let me tell my colleagues what the OB/GYNs say:

       Partial-birth abortion does not exist.

  They are not the only ones who say that. The fact is the Supreme 
Court said that. They said the bill is so vague; it made up a term, 
``partial-birth abortion.''
  There is no such thing as partial-birth abortion, a very emotional 
term. But what we are talking about is a procedure that is used in a 
situation where any other procedure might cause grave harm to the 
woman.
  Now, the AMA does not support S. 3. I hope Senator Frist is aware of 
this. He is busy talking, which is fine, but I ask unanimous consent 
that the AMA statement that says they do not support S. 3 because it 
includes a provision that would impose a criminal penalty on physicians 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 American Medical Association,

                                                   March 10, 2003.
       The Senate is considering a bill that would ban the 
     procedure known as intact dilation and extraction, more 
     commonly referred to as partial birth abortion. The American 
     Medical Association (AMA) has previously stated our 
     opposition to this procedure. We have not changed our 
     position regarding the use of this procedure.
       The AMA also has long-standing policy opposing legislation 
     that would criminalize medical practice or procedure. Since 
     S. 3 includes a provision that would impose a criminal 
     penalty on physicians performing intact dilation and 
     extraction, the AMA does not support this bill.

  Mrs. BOXER. Then I want to tell a story. My colleagues have an 
artist's rendering, but I want to show a photograph of a woman named 
Coreen Costello. I want my colleagues to listen to this because it is 
not a made-up picture. It is a real picture of a real family and a real 
woman. Why don't my colleagues listen to it because I think this is 
what we are supposed to be about, real people facing real problems and 
what we are about to do by passing radical legislation, which is 
unconstitutional on its face. It did not even go to the committee. I 
say to my friends, it did not even go to the Judiciary Committee, 
although the Supreme Court said it was unconstitutional. The least they 
could have done was bring it back to the committee and look at what the 
Court said, that the definition was broad, it was vague, it could ban 
more than one procedure and that it had no exception for the health of 
a woman.
  Listen to the story of Coreen Costello. She says:

       I am writing to you on behalf of my family. I have 
     testified before both the Senate and the House concerning the 
     so-called partial-birth abortion ban. I have personal 
     experience with this issue for at 30 weeks pregnant I had a 
     procedure that would be banned by this legislation. When I 
     was 7 months pregnant, an ultrasound revealed that our third 
     child, a darling baby girl, was dying. She had a lethal 
     neurological disorder and had been unable to move any part of 
     her tiny body for almost 2 months. Her muscles had stopped 
     growing and her vital organs were failing. Her lungs were so 
     undeveloped, they barely existed. Her head was swollen with 
     fluid and her little body was stiff and rigid. She was unable 
     to swallow amniotic fluid and as a result, the excess fluid 
     was puddling in my uterus. When we learned about our baby's 
     condition, we sought out many specialists and educated 
     ourselves. Our doctors, five in all, agreed that our little 
     girl would come prematurely and there was no doubt that she 
     would not survive. It was not a matter of our daughter being 
     affected by a severe disability--her condition was fatal. Our 
     physicians discussed our options with us. When they mentioned 
     terminating the pregnancy, we rejected it out of hand.

  I want my colleagues to hear this, and I ask that there be order in 
the Chamber.
  The PRESIDING OFFICER. The Senate will come to order.
  Mrs. BOXER. I have listened to my colleagues, and I would appreciate 
it if they would hear a story of a woman named Coreen Costello, because 
if this procedure were to be banned--and I see that Dr. Frist has left 
the floor--this woman could have died. But they leave the floor, and 
that is their prerogative.
  This is what Careen Costello writes:

       We are Christians and we are conservative. We believe 
     strongly in the rights, value and sanctity of the unborn. 
     Abortion was simply not an option we would ever consider. 
     This was our daughter. Instead, we wanted our baby to come in 
     God's time and we did not want to interfere. We chose to go 
     into labor naturally. It was difficult to face life knowing 
     we were going to lose our baby but it became our mission to 
     make the last days of her life as special as possible. We 
     asked our pastor to baptize her in utero. We named her 
     Katherine Grace. Another ultrasound determined Katherine's 
     position in my womb. It was not conducive for delivery. Her 
     spine was so contorted it was as if she was doing a swan 
     dive, the back of her feet almost touching the back of her 
     head. Her head and feet were at the top of my uterus. Her 
     stomach was over my cervix. Due to swelling, her head was 
     already larger than that of a full-term baby.

  I say to my friends, this is real life. This is a situation of a 
woman who

[[Page 5704]]

never, ever wanted an abortion. She said:

       As my condition worsened, we again considered our options. 
     Natural birth or induced labor were not possible. We 
     considered a cesarean but the experts felt the risk to my 
     health and my life were too great.

  We have a bill before us that makes no exception for the health of 
the woman. I was in the Chamber yesterday. We had a very tough debate, 
and the question was asked, How low can we sink? I have to say, when we 
hear stories such as this, that happen to real people--and if this were 
our daughter or our wife or our aunt, would we not say, save her life 
and her health?
  The bottom line is this: This woman had the procedure that would have 
been banned with this bill. I ask unanimous consent that the entire 
letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      Testimony of Coreen Costello

       My name is Coreen Costello and I am writing to you on 
     behalf of my family. I have testified before both the Senate 
     and the House concerning the so-called ``partial birth 
     abortion'' ban and my family was with the President when he 
     vetoed his legislation. I have personal experience with this 
     issue for at 30 weeks pregnant I had a procedure that would 
     be banned by this legislation.
       On March 24, 1995, when I was seven months pregnant an 
     ultrasound revealed that our third child, a darling baby 
     girl, was dying. She had a lethal neurological disorder and 
     had been unable to move any part of here tiny body for almost 
     two months. Her muscles had stopped growing and her vital 
     organs were failing. Her lungs were so underdeveloped, they 
     barely existed. Her head was swollen with fluid and her 
     little body was stiff and rigid. She was unable to swallow 
     amniotic fluid and as a result, the excess fluid was puddling 
     in my uterus (a condition known as polyhydramnios). When we 
     learned about our baby's condition, we sought out many 
     specialists and educated ourselves to see what we could do to 
     save our child. My husband is a chiropractor and we are very 
     proactive about our health care. We are generally skeptical 
     about the medical profession and would never rely on the 
     advice or diagnosis of just one doctor. However, our doctors 
     (five in all) agreed that our little girl would come 
     prematurely and there was no doubt that she would not 
     survive. It was not a matter of our daughter being affected 
     by a severe disability--her condition was fatal.
       Our physicians discussed our options with us. When they 
     mentioned terminating the pregnancy, we rejected it out of 
     hand. We are Christians and conservative. We believe strongly 
     in the rights, value and sanctity of the unborn. Abortion was 
     simply not an option we would ever consider. This was our 
     daughter.
       Instead, we wanted our baby to come on God's time and we 
     did not want to interfere. We chose to go into labor 
     naturally. It was difficult to face life knowing we were 
     losing our baby. But it became our mission to make the last 
     days of her life as special as possible. We wanted her to 
     know she was loved and wanted. We asked our pastor to baptize 
     her in utero. We named her Katherine Grace--Katherine meaning 
     pure, and Grace representing God's mercy.
       Another ultrasound determined Katherine's position in my 
     womb. It was not conducive for delivery. Her spine was so 
     contorted it was as if she was doing a swan dive, the back of 
     her feet almost touching the back of her head. Her head and 
     feet were at the top of my uterus. Her stomach was over my 
     cervix. Due to swelling, her head was already larger than 
     that of a full term baby. For two weeks I tried exercises in 
     an attempt to change her position, but to no avail. Amniotic 
     fluid continued to puddle into my uterus at a rate of great 
     concern to my doctors. I was carrying an extra nine pounds of 
     fluid. It became increasingly difficult to breathe, to sit or 
     walk. I could not sleep. My health was rapidly deteriorating. 
     My family and friends were much more aware of my health 
     decline than I was. My complete focus was on Katherine.
       As my condition worsened, we again considered our options. 
     Natural birth or an induced labor were not possible due to 
     her position and the swelling of her head. We considered a 
     Cesarean section, but experts at Cedars-Sinai Hospital felt 
     that the risks to my health and possibly to my life were too 
     great. A Cesarean section is done to save babies. It can be a 
     life saving procedure for a child in stress or one who cannot 
     be delivered vaginally. It is not the safest for a woman. 
     There is an increased mortality rate with Cesarean section. 
     In my case, even if a Cesarean could be done, Katherine would 
     have died the moment the umbilical cord was cut. There was no 
     reason to risk my health or life, if there was no hope of 
     saving Katherine. She would never be able to take a breath.
       Our doctors all agreed that an intact D&E procedure 
     performed by Dr. James McMahon was the best option. I was 
     devastated. I could not imagine delivering my daughter in an 
     abortion clinic. But Dr. McMahon was an expert in cases 
     similar to mine. My situation and Katherine's condition were 
     not new to him. He explained the procedure to us. My cervix 
     would be gently dilated to maintain its integrity. Once I was 
     dilated enough, Dr. McMahon could begin the procedure. In 
     order for Katherine to be delivered intact, cerebral fluid 
     would be removed, which would allow her head to be delivered 
     without damage to my cervix.
       It took almost three hours to deliver our daughter. I was 
     given intravenous anesthesia. Due to Katherine's weakened 
     condition, her heart stopped beating during the procedure. 
     She was able to pass away peacefully in my womb.
       Some who support his bill have stated that I do not fit 
     into the category of someone who had a so-called ``partial 
     birth abortion'' because I contend my baby died while still 
     in my womb. Is this relevant? When the procedure began, her 
     heart was still beating--who could predict for certain when 
     she would actually pass away? If this legislation were 
     passed, an intact D&E would not have been an option for me. 
     The fact is, I had the procedure outlined in this 
     legislation. Since I present the procedure as humane, 
     dignified, and necessary, somehow this means I must have had 
     a different procedure and am not relevant to this bill. This 
     is simply not true.
       I come to you with no political motivation, rather I come 
     with the truth. I have experience of an intact D&E. Some want 
     you to believe their horrific version of this procedure. They 
     have never experienced an intact D&E. I have. This procedure 
     allowed me to deliver my daughter intact. My husband and I 
     were able to see and hold our daughter. I will never forget 
     the time I had with her, nor will I forget her precious face. 
     Having this time with her allowed us to start the grieving 
     process. I don't know how we would have coped if we had not 
     been able to hold her. Moreover, because I delivered her 
     intact, experts in fetal anomalies and genetics could study 
     her condition. This enabled them to determine that her 
     condition was not genetic. This was crucial for us in 
     deciding whether or not to have another child.
       No one predict how a baby's anomalies will affect a woman's 
     pregnancy. Every situation is different. We cannot tie the 
     hands of physicians in these life and health saving matters. 
     It is simply not right.
       With my health maintained, my cervix intact and my uterus 
     whole, we were able to have another child. On June 4, we were 
     blessed with a beautiful healthy baby boy. He is our delight! 
     He is not a replacement for his sister. There will always be 
     a hole in our hearts where Katherine Grace should be. He is, 
     to us, a sign that life goes on. We cherish every moment we 
     have with Tucker, and with our two other children, Chad and 
     Carlyn. What precious gifts God has given to us.
       Losing our daughter was the hardest thing we have 
     experienced. It's been difficult to come to Washington and 
     relive our loss. And it's ironic that I, with my profound 
     pro-life views, would be defending an abortion procedure. God 
     knows I pray for the day when no other woman will need this 
     procedure. But until there is a cure for the cruel disorders 
     that can affect babies, women must have access to this 
     important medical option.

  Mrs. BOXER. She concludes:

       Losing our daughter was the hardest thing we have ever 
     experienced. It has been difficult to come to Washington and 
     relive our loss. And it's ironic that I, with my profoundly 
     pro-life views, would be defending an abortion procedure. God 
     knows I pray for the day when no other woman will need this 
     procedure, but until there is a cure for the cruel disorders 
     that can affect babies, women must have access to this 
     important medical option.

  The PRESIDING OFFICER. The Senator from California has 1 minute 
remaining.
  Mrs. BOXER. In conclusion, in my last minute, I have told this story 
because what we are about to do, unless we adopt several of the 
amendments we will be offering, would mean that another woman such as 
this, another beautiful family such as this, might find that the woman 
has life-threatening illnesses if, in fact, she cannot have the 
procedure: hemorrhaging, uterine rupture, blood clots, embolism, 
stroke, damage to nearby organs, paralysis. This is what physicians 
tell us happens to women.
  So my colleagues have a picture, and that is fine, although I have to 
say I hope the pages who feel a little queasy on this will not be 
forced to stay in the Chamber, but we are dealing with a circumstance 
that affects real people and these are the things that can happen to 
these women. I believe we have to have a voice, and the Murray 
amendment should pass because the Murray amendment would mean that 
women can have access to contraception and that abortion would become 
safe, legal, and rare.
  I yield the floor back to Senator Byrd, who I believe has the time.

[[Page 5705]]

  The PRESIDING OFFICER. Under the previous order, the Senator from 
Ohio now has 15 minutes.
  The Senator from Ohio.
  Mr. DeWine. Mr. President, I will continue the debate in regard to 
the partial-birth abortion ban. This afternoon, I will talk about the 
constitutionality of this statute, S. 3. The argument has been made 
that this statute is unconstitutional, but I differ with my colleagues 
who make this argument.
  Reference has been made to the Stenberg case that overturned the 
Nebraska partial-birth abortion law. I argue that the law in front of 
us, or the statute in front of us, is fundamentally different.
  First, the language is different. The Partial-Birth Abortion Ban Act 
of 2003 provides a very precise definition of partial-birth abortion so 
that it is clear on the face of the legislation exactly what procedure 
is to be banned, unlike the Nebraska statute that was declared 
unconstitutional.
  The bill would outlaw one, and only one, abortion procedure, and that 
is the D&X procedure, the partial-birth procedure we have been 
describing in very vivid detail on the Senate floor, the procedure that 
no one really can argue is anything less than barbaric and inhumane.
  There is absolutely nothing vague, unclear, or ambiguous about how 
this bill defines the partial-birth abortion procedure.
  To make this even more clear, it is useful to examine the law struck 
down by the Supreme Court in the Stenberg case. The procedure was 
defined in that case by the Nebraska Legislature as follows, and I will 
read from that Nebraska law that was found to be unconstitutional, to 
show its difference from this law:

       An abortion procedure in which the person performing the 
     abortion partially delivers vaginally a living unborn child 
     before killing the unborn child and completing the delivery.

  That is what the Nebraska law said. The phrase ``partially delivers 
vaginally a living unborn child before killing the unborn child'' was 
further defined in the Nebraska statute as follows:

       Deliberately and intentionally delivering into the vagina a 
     living unborn child, or a substantial portion thereof, for 
     the purpose of performing a procedure; that the person 
     performing such procedure knows will kill the unborn child 
     and does kill the unborn child.

  The Supreme Court held this language of the Nebraska statute covered 
more than just one abortion procedure. The definition used in the 
Nebraska statute implicated not only partial-birth abortion procedures, 
but it also implicated the more common dilation and evacuation or D&E 
methods, which is different from a D&X method we are dealing with in 
this statute.
  For the record, a D&E, according to the nonpartisan Congressional 
Research Service, is described as follows:

       D&E involves the dilation of the cervix and the 
     dismemberment of the fetus inside the uterus. The fetal parts 
     are later removed from the uterus either with forceps or by 
     suction.

  In other words, in a D&E procedure, an unborn child is essentially 
dismembered, limb by limb, piece by piece. During a D&E, an arm or leg 
is sometimes pulled into the birth canal before being twisted off, 
while the baby is still alive. The Justices thought this might be 
considered a partial-birth abortion under the Nebraska law definition 
because that definition, as I have just stated, includes any procedure 
in which a baby is delivered vaginally, even if that vaginal delivery 
is just a partial delivery.
  At this point, it is worth repeating exactly how a partial-birth 
abortion procedure, again also known as a D&X procedure, is 
distinguished from a D&E procedure. The D&X or partial-birth abortion 
procedure was very well described by U.S. Supreme Court Justice 
Clarence Thomas in his dissent in the Stenberg case.
  This is what Justice Thomas wrote:

       After dilating the cervix, the physician will grab the 
     fetus by its feet and pull the fetal body out of the uterus 
     into the vaginal cavity . . . While the fetus is stuck in 
     this position, dangling partly out of the woman's body, and 
     just a few inches from a completed birth, the physician uses 
     an instrument such as a pair of scissors to tear or perforate 
     the skull. The physician will then either crush the skull or 
     will use a vacuum to remove the brain and other intracranial 
     contents from the fetal skull, collapse the fetus' head and 
     pull the fetus from the uterus.

  That is depicted in a later phase of this procedure in this picture.
  In order to avoid any possibility of confusion, the bill before the 
Senate, S. 3, defines the phrase ``partial-birth abortion'' so narrowly 
that only the D&X abortion procedure is covered. No other abortion 
procedures--including the D&E procedure in which an unborn baby's arm 
or leg is pulled into the birth canal before being twisted off--could 
possibly be implicated by S. 3.
  While we have already heard it read on the Senate floor during the 
debate, while I read it last night in this debate, I think it is 
important to again repeat the bill's definition of the partial-birth 
abortion procedure. According to the definition in this bill, S. 3:

       (1) the term 'partial-birth abortion' means an abortion in 
     which----
       (A) 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; and
       (B) performs the overt act, other than completion of 
     delivery, that kills the partially delivered living fetus;

  My colleague from California and others have argued that the S. 3 
definition of a partial-birth abortion still covers more than one 
abortion procedure. But she has never explained how this is possible. 
The description of partial-birth abortion in S. 3 is so precise and is 
based, frankly, on the description of a leading abortionist, Dr. Mark 
Haskell, a man about whom I spoke last night on the Senate floor, a man 
who regularly conducts these heinous procedures in my home State of 
Ohio. This is a very precise definition of a partial-birth abortion 
that leads absolutely nothing to the imagination.
  Clearly, without question, S. 3 very precisely and very specifically 
addresses the first constitutional issue that was raised in the 
Stenberg case and is fundamentally different than the Nebraska statute 
that was declared unconstitutional by the U.S. Supreme Court. S. 3 
would ban one and only one very specific abortion procedure. It simply 
imposes absolutely no undue burden on a woman's ability to obtain an 
abortion.
  Let me turn now to the second issue, the second constitutional issue, 
and that is the health of the mother, which was the other issue raised 
in the Stenberg case. The so-called requirement that the statute must 
contain ``the health of the mother'' also springs from the notion of 
undue burden on the woman's ability to get an abortion.
  The argument, as I understand, goes something like this: If a 
procedure is medically important to protect the health of the mother, 
banning that procedure would pose an undue burden on her ability to 
have an abortion. Yet in the case of the partial-birth abortion, 
medical experts have repeatedly confirmed that this callous act is 
never medically indicated. And because it is never medically indicated, 
banning it cannot possibly be an undue burden.
  There is substantial evidence from past congressional hearings on 
this issue to support a finding obtained in the bill itself, and the 
bill makes these findings. It says in part, the following: Rather than 
being an abortion procedure that is embraced by the medical community, 
partial-birth abortion remains a disfavored procedure that is not only 
unnecessary to protect the health of the mother but, in fact, poses 
serious risk to the long-term health of women and, in some 
circumstances, their lives.
  I remind my colleagues of a 1996 interview in which the former U.S. 
Surgeon General, C. Everett Koop, explicitly discussed partial-birth 
abortion. In that interview, a reporter for American Medical News posed 
the following question. This is what the interviewer asked.

       President Clinton just vetoed a bill to ban partial-birth 
     abortions, a late-term abortion technique that practitioners 
     refer to as intact dilation and evacuation or dilation and

[[Page 5706]]

     extraction. In so doing, he cited several cases in which 
     women were told these procedures were necessary to preserve 
     their health and their ability to have future pregnancies. 
     How would you characterize the claims being made in favor of 
     the medical need for this procedure?

  Dr. Koop responded as follows:

       I believe that Mr. Clinton was misled by his medical 
     advisers on what is fact and what is fiction in reference to 
     late term abortions because 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.

  Similarly, in 1997 a House committee report on the subject cited over 
400 OB/GYN and maternal/fetal specialists who have unequivocally 
stated:

       Partial-birth abortion is never medically indicated to 
     protect a woman's health or her fertility. In fact, the 
     opposite is true. The procedure can pose a significant and 
     immediate threat to both the pregnant woman's health and her 
     fertility.

  The majority leader of the Senate, a medical doctor, gave us, a few 
moments ago, the benefit of his wisdom, of his experience on this 
issue. The point I believe is worth repeating because it is notable 
that so many doctors are willing to come right out and say: No, this is 
absolutely not necessary; we can never find one instance in which it is 
medically indicated.
  Doctors usually don't say things like this. They just don't like 
being that definite because medicine, by definition, is usually a case-
by-case situation, a case-by-case profession. But this issue is 
different. On this issue, it is crystal clear, partial-birth abortions 
serve no legitimate medical purpose that cannot be served by other 
means. As my colleague from Pennsylvania stated earlier today:

       Over the past several years the Senate advocates of 
     partial-birth abortion have never produced even one case in 
     which a partial-birth abortion is shown to be medically 
     necessary.

  Opponents of this bill go beyond just arguing about the merits of 
partial-birth abortion. They go further, probably because it is so 
gruesome that some of my colleagues are uncomfortable supporting it. 
Some of my colleagues would prefer to debate the issue of abortion more 
generally. They try to cast this debate as a debate about a broader 
issue, and that issue is reproductive freedom. But the issue before us 
today is not reproductive freedom; it is a much more narrow issue. The 
issue is very narrowly defined. It is simply the issue of partial-birth 
abortion. The issue before us is the very specific method of partial-
birth abortion, a method that is particularly brutal and gruesome and 
wrong.
  Brenda Pratt Shafer, a registered nurse who observed Dr. Haskell use 
the procedure to abort three babies in 1993, testified before our 
Senate Judiciary Committee in 1995. I would like to share with my 
colleagues what she said because she gave very gripping, very telling 
testimony.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. DeWINE. I ask unanimous consent for 3 additional minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Nurse Shafer described a partial-birth abortion she 
witnessed on a child of 26.5 weeks, and this is what she said:

       Dr. Haskell brought the ultrasound in and hooked it up so 
     that he could see the baby. On their ultrasound screen I 
     could see the heart beat. As Dr. Haskell watched the baby on 
     the ultrasound screen, the baby's heartbeat was clearly 
     visible on the ultrasound screen.
       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. Then the doctor stuck the scissors in the 
     back of his head and the baby's arms jerked out like a 
     startle reaction, like a flinch, like a baby does when he 
     thinks he is going to fall. The doctor opened up the 
     scissors, stuck a high-powered suction tube into the opening, 
     sucked the baby's brains out. Now the baby went completely 
     limp. He 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. That 
     baby boy had the most perfect angelic face I think I have 
     ever seen in my life.

  As stated in a House committee report containing the transcript of 
this nurse's testimony:

       The only difference between the partial-birth abortion 
     procedure and infanticide is a mere 3 inches.

  Three inches between life and death, between murder and lawful 
action, is clearly not enough. The time to ban this procedure once and 
for all is now. We cannot in good conscience let this barbaric 
procedure continue to be legal.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, parliamentary inquiry: Has the Pastore rule 
run its course today?
  The PRESIDING OFFICER. It has expired.
  Mr. BYRD. It has. I thank the Chair.
  Mr. President, I shall speak out of order, not long. My guess is that 
I will speak for 20 minutes or less.
  The PRESIDING OFFICER (Mr. Chaffee). The Senator from West Virginia 
is recognized.


                                  IRAQ

  Mr. BYRD. Mr. President, the United Nations is in diplomatic disarray 
today as the foreign ministers from the world's most powerful nations 
scramble to find some scrap of common ground on the question of war 
with Iraq.
  What a difference a few months makes. Last November, under the 
leadership of the United States, the 15-member U.N. Security Council 
unanimously approved Resolution 1441, strengthening the weapons 
inspection regime and giving Iraq a final opportunity to comply with 
its disarmament obligations.
  The rapidity with which that unity has unraveled is astounding. What 
began as a constructive process to gain international support for war 
against Iraq has disintegrated into insults, accusations, and finger-
pointing among the key members of the Security Council. Instead of 
forging an international coalition to deal with Iraq, as it set out to 
do, the Administration has managed to turn much world opinion against 
United States. With his insistence that the United Nations declare the 
inspection regime a failure and immediately authorize war against Iraq, 
the President has opened a chasm between the U.S. and Great Britain on 
one side and the remaining permanent members of the Security Council on 
the other.
  Today, the White House is declaring the United Nations irrelevant--
one of the most over used words in the English language as of today, I 
would say, and as of the last several days.
  Today, the White House is declaring the United Nations irrelevant if 
it does not authorize immediate war against Iraq, and U.N. Secretary 
General Kofi Annan is countering that a U.S.-led invasion of Iraq 
without the sanction of the United Nations will violate the U.N. 
charter.
  The knock-down, drag-out in the Security Council has tarnished the 
images of both the United Nations and the United States, and it has 
imperiled the political career of at least one world leader, one 
foremost leader, President Bush's staunchest ally, British Prime 
Minister Tony Blair.
  What a high price to pay for the President's insistence on blindly 
following a war-first, war-now policy on Iraq. What a high price to 
pay.
  Despite feverish activity this week on the part of the U.S. and Great 
Britain to persuade a majority of members of the Security Council to 
support a second resolution authorizing war with Iraq, the President 
and his chief advisers have made it clear that the activity is merely 
window dressing and that the United States is prepared to act with or 
without U.N. support. For the Bush administration, war with Iraq seems 
to be no longer a question of if, but when and the window on ``when'' 
is rapidly closing.
  Dr. Condoleezza Rice, the President's National Security Advisor, 
declared over the weekend, ``There is plenty of authority to act. We 
are trying very hard to have the Security Council one more time affirm 
that authority. But it's important to know that we believe the 
authority is there.''

[[Page 5707]]

  In other words, the die has been cast. As Caesar said when he crossed 
the Rubicon, ``the die is cast.'' The rhetoric has hardened. U.S. 
forces are in place and poised to attack. The U.N. Security Council has 
been relegated to a classic Greek chorus of tragic protest while the 
United States takes center stage. The President has stopped listening.
  The administration's strategy for war with Iraq is so far advanced 
that not only does the President have war plans on his desk, he also 
has a blueprint for the post-war reconstruction of Iraq.
  On Monday, The Wall Street Journal reported that the U.S. Agency for 
International Development is soliciting bids from a handful of U.S. 
firms for a contract worth as much as $900 million to begin the 
reconstruction of Iraq. According to the Journal, the contract would be 
the largest reconstruction effort undertaken by the United States since 
the reconstruction of Germany and Japan after World War II.
  With post-war contracts already in hand, can the onset of war be far 
behind?
  My views, by now, are well known. I believe this coming war is not a 
necessity. I believe it is a grave mistake, not because Saddam Hussein 
does not deserve to be disarmed or driven from power, not because some 
of our allies object to war, but because Iraq does not pose an imminent 
direct threat to the security of the United States. There is no 
question that the United States has the military might to defeat Saddam 
Hussein. There is no question about that. But we are on much shakier 
ground when it comes to the question of why this Nation, the United 
States, under the current circumstances, is rushing to unleash the 
horrors of war on the people of Iraq.
  In many corners of the world, the United States is seen as 
manufacturing a crisis in Iraq, not responding to one. Key members of 
the U.N. Security Council, including France and Russia, have vowed to 
veto any move to secure the imprimatur of the U.N. on war with Iraq. 
The U.N. weapons inspectors have pleaded for more time to do their 
work. Citizens by the thousands--nay, by the hundreds of thousands--
have taken to the streets in countries around the globe, including the 
United States, Europe, and the Middle East, to protest the war.
  The day after the September 11 terrorist attacks on America, the 
French newspaper Le Monde proclaimed, ``We are all Americans!'' 
Eighteen months later, the United States and France are hurling insults 
at each other, and the French are leading the opposition to the war 
against Iraq. In country after country, the United States has seen the 
outpouring of compassion and support that followed September 11 
dissolve into anger and resentment at this Administration's heavy-
handed attempts to railroad the world into supporting a questionable 
war with Iraq.
  The latest report of the U.N. weapons inspectors only heightened the 
tensions in the Security Council and helped to precipitate the current 
scramble for a new resolution. On Friday--March 7--chief U.N. weapons 
inspector Hans Blix reported progress in the disarmament of Iraq and 
predicted that the inspection process could be completed in months--
``not years, nor weeks, but months.''
  At the same meeting, Mohamed ElBaradei, the Director General of the 
International Atomic Energy Agency, threw cold water on a key assertion 
of the Bush administration, that Iraq is actively pursuing a nuclear 
capability on two fronts--by importing high-strength aluminum tubes 
which could be used as part of a centrifuge to produce enriched uranium 
and by attempting to buy uranium from Niger. Dr. ElBaradei said the 
inspectors have found no evidence--none--that Iraq is attempting to 
revive its nuclear weapons program, concluding that the aluminum tubes 
were for a rocket engine program, as Iraq claimed, and that the 
documents used to establish the Niger connection were faked.
  Not even reports of a chilling discovery by U.N. weapons inspectors 
of a new type of rocket in Iraq that appears to be designed to carry 
chemical or biological agents has swayed the hardening opposition in 
the United Nations to authorizing an immediate war against Iraq.
  The world is awash in anti-Americanism. The doctrine of preemption 
enshrined in the Bush administration's national security strategy the 
policy on which the war with Iraq is predicated has turned the global 
image of the United States from that of a world class peacemaker into 
what many believe is dangerous warmonger.
  The President is on the wrong track in insisting on rushing into war 
without the support of the international community, and specifically 
the United Nations. Not only is America's reputation on the line, but 
so is our war on terror. The recent arrest of Khalid Shaikh Mohammed 
and two of his cohorts in Pakistan is evidence that the United States 
is making slow but steady progress in dismantling the al-Qaida 
organization, and that we are reaping huge dividends from the anti-
terrorism efforts we have undertaken in cooperation with other nations 
in the Middle East.
  Pakistan's cooperation is particularly important in the war on 
terror, and yet the majority of the Pakistani people are opposed to war 
with Iraq. How or whether Pakistani opposition to the war against Iraq 
will affect the war against terror is one of many unknowns.
  The United States cannot bring down al-Qaida alone. We need support 
and cooperation from friendly nations in the region. We risk losing 
their friendship, and possibly causing major upheavals in the Middle 
East, if the President defies world opinion and launches a U.S. led 
invasion of Iraq.
  Mr. SARBANES. Will the Senator yield for a question on that point?
  Mr. BYRD. Yes, I am happy to yield, without losing my right to the 
floor.
  Mr. SARBANES. On the al-Qaida front, we have just captured supposedly 
the third ranking person in al-Qaida.
  Mr. BYRD. Yes.
  Mr. SARBANES. We were able to do that because of cooperation from 
Pakistan.
  Mr. BYRD. Yes.
  Mr. SARBANES. Just to underscore the Senator's point about the 
necessity of having the cooperation of other countries to deal with the 
terrorism threat.
  Mr. BYRD. Undoubtedly.
  Mr. SARBANES. Yet Pakistan, which has been trying to work with us, 
has already announced that at best they will abstain at the Security 
Council with respect to the coming vote because it is applying such 
tremendous internal pressure in Pakistan that there is some danger that 
this Government that has been working with us may not survive and may 
collapse.
  Mr. BYRD. Unquestionably.
  Mr. SARBANES. Isn't that a dramatic example of the kind of problem 
the Senator is talking about that is being created for us around the 
world?
  Mr. BYRD. It is a dramatic example and a most somber and chilling 
one. I thank the distinguished Senator for his observation.
  The President may be lucky. We may be lucky. If we launch this war on 
Iraq, we may be lucky. I hope we will be. But we may not be.
  The cost of war and the potential casualties--not only to American 
military personnel but also to innocent civilians in and around Iraq--
are unknowns. The impact of war on the fragile fabric of the Middle 
East is also unknown. The administration seems to think that war with 
Iraq will pave the way to peace and democracy in the Middle East, but I 
believe that is merely wishful thinking. Saddam Hussein is not the 
cause of the strife between the Israelis and the Palestinians, and 
Saddam Hussein's downfall will not erase the deeply rooted conflict 
between the two sides.
  War against Iraq may prove to be a fatal distraction from the war on 
terror. It could be. The danger to Americans today is from al-Qaida. 
Intelligence officials predict that war with Iraq will precipitate a 
new wave of terrorism against the United States and its allies and will 
serve as a powerful recruiting tool for anti-American extremists.

[[Page 5708]]

  We need to keep the pressure on al-Qaida. We need to strengthen our 
defenses against a terrorist attack here at home. We need to focus the 
resources of our Nation on the war on terror and dismantle the al-Qaida 
network before it can mount another catastrophic attack on the United 
States.
  The hour is late; the clock is ticking. But if the President would 
only listen to voices outside his war cabinet of superhawks, he might 
discover that it is not too late to stop the rush to war. There is 
still a chance that Saddam Hussein can be disarmed and neutralized 
short of war. As long as that possibility exists, the United States 
should drop its resistance to any slowdown in the march to war and 
should begin to talk with, and listen to, the other members of the 
Security Council.
  The prospect of regaining unanimity within the United Nations on the 
question of Iraq is dim at best, but as long as there remains even a 
glimmer of hope, it is in the best interests of both the United States 
and the other members of the Security Council to regroup and strive to 
achieve that goal. The world community deserves nothing less.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. BYRD. Yes, I yield without losing my right to the floor. I am 
about finished.
  Mr. DURBIN. I would like to say, before asking my question to the 
Senator from West Virginia, if the American people are looking for a 
debate on the war in Iraq, the looming possibility of war in Iraq----
  Mr. BYRD. They have been looking for one. They have been entitled to 
one. And now they have received one.
  Mr. DURBIN. The only place they can find it is in the House of 
Commons in London----
  Mr. BYRD. Thank God.
  Mr. DURBIN. And from the desk of the Senator from West Virginia and 
two or three other souls who come to this floor to raise the issue.
  Mr. BYRD. Thank Providence again.
  Mr. DURBIN. I say a commendation to the Senator from West Virginia. 
Thank you for your leadership in bringing us to this debate. I ask you, 
to make certain this point is clear on the record, is it the position 
of the Senator from West Virginia that we all believe the world would 
be a safer place without weapons of mass destruction in Iraq, even 
without the leadership of Saddam Hussein, but that in order to be 
strong in our war on terrorism, we need the cooperation of countries 
all around the world which now are questioning our wisdom in pursuing 
this war in Iraq?
  Mr. BYRD. Indubitably, that is the way I see it. That is my opinion. 
I believe there is ample evidence of that fact. The world itself at 
large wishes to see that, wants to see that and hopes for that.
  Mr. DURBIN. I might also ask the Senator from West Virginia, is the 
point he is making that if we stay working with the United Nations on a 
common plan to disarm Iraq and if it fails and we ultimately join with 
the other nations around the world to take whatever action is necessary 
against Iraq, we will have a better outcome, not only in terms of the 
military outcome but the responsibility of reconstruction of Iraq? Is 
that the Senator's point as well?
  Mr. BYRD. Precisely so and importantly, emphatically on the second 
observation the Senator has made.
  In other words, the morning after, what happens in Iraq? What does 
that cost? If we destroy much of Iraq, we have a responsibility to help 
to rebuild it. That is going to be a tremendous cost. I am afraid this 
administration has not thought that element through.
  Moreover, the administration has not told the Congress very much 
about that, what the cost of that may be, what the administration's 
plans are in that case. I think that is a very soft underbelly of this 
whole matter.
  Mr. DURBIN. I will ask one final question. I don't want to 
mischaracterize the Senator's position, but I think what I am about to 
say he and I share. There is no question in our minds about not only 
the goodness of the men and women serving in the American military 
today and their ability and skill to win any military challenge thrown 
their way. I hope the Senator agrees that it is far better for our 
military forces and our Nation, in the long run, for us to show wisdom 
in the decision of how to bring Iraq under control rather than just 
demonstrate that military strength.
  Mr. BYRD. The Senator is preeminently correct. Let me add, as ranking 
member of the Senate Appropriations Committee, I will never yield to 
anyone when it comes to supporting America's fighting men and women who 
have been sent abroad, and those at home, once the war begins.
  I do not believe this war is necessary. But I will support to the 
last degree the men and women who have to go. They didn't ask to go, 
but they have to go; they are answering the call. I will support them 
on the Appropriations Committee to the furthermost of my ability.
  Mr. SARBANES. Will the Senator yield for a question?
  Mr. BYRD. Yes.
  Mr. SARBANES. The Senator spoke earlier about the preemption doctrine 
the administration has put forward. Would the Senator agree that one of 
the dangers with the enunciation of that doctrine and the path the 
administration has now been pursuing--which is to assert that they may 
take unilateral action instead of trying to work in a cooperative way 
through international bodies--is that it will set a precedent for other 
countries around the world to pursue the same course? After all, here 
is the predominant superpower asserting a doctrine of preemption, 
apparently prepared to go the unilateral path. What is then in the 
future to prevent some other regional power that asserts that it is 
confronted with some danger, from some neighbor, from pursuing the same 
path? Are we not in the process of setting a very dangerous precedent 
on the international scene in terms of maintaining international peace?
  Mr. BYRD. The Senator is right on point. This doctrine is exceedingly 
dangerous. It not only will set a precedent, it has set a precedent, as 
we have seen it begun to be put into play in Iraq. It will be a 
precedent. There will be a blotch on the escutcheon of the United 
States from now and until kingdom come. It is a dangerous precedent. 
Can't the Senator see that already it is beginning to have an impact on 
other nations, as we watch North Korea, as we watch Iran--why, those 
countries and others are going to say, well, if this bully on the block 
is going to do this, we had better get ready and get our things in 
order. Maybe we had better get ready to hit him or others within our 
reach. This is a genie that we will regret ever having let out of the 
bottle.
  Mr. SARBANES. Let me ask the Senator one final question and be very 
clear. I take it the Senator would agree with me that none of us 
questions that if we were in imminent danger of being struck, we would 
be warranted in taking measures to protect ourselves against such 
dangers.
  Mr. BYRD. No question about it. The President--whether it is a 
Republican or a Democrat--has an inherent power under the Constitution. 
If there is an imminent threat about to be carried out against the 
United States, of course, the President has a responsibility and a duty 
to act first.
  Mr. SARBANES. Actually, the U.N. Charter grants the right of self-
defense, which would in fact entitle us to act on our own accord if 
confronted with an imminent danger.
  Mr. BYRD. No question. But even without the U.N. Charter, we have the 
inherent right. It is under the Constitution. I will be the last person 
to give up on that right.
  Mr. SARBANES. I wanted to make that point because some are arguing 
that somehow we are giving over to someone else the decisionmaking 
authority, in case we are confronted with an imminent danger, to 
respond. That is not the case at all. So as we see this situation, that 
is not present. The question becomes how smart and how wise are we in 
exercising this unquestioned power, which we hold now on the 
international scene; is that not correct?
  Mr. BYRD. Absolutely. We are taking a reckless course in advocating 
this

[[Page 5709]]

doctrine. It is a nefarious doctrine, and it is scaring the world to 
death today. No wonder we are looked upon as being warmongers. When our 
friends begin to fear us, may I say to the distinguished Senator from 
Maryland--who is one of the foremost thinkers in this body. I have been 
in this Congress for 50 years now, and I have seen some thinkers. I 
remember John Pastore, for example, who was a thinker. The Senator from 
Maryland is a thinker. The Senator is right on point in what he is 
saying. This is a dangerous doctrine, a reckless doctrine. When our 
friends begin to fear us, we are in trouble.
  Mr. SARBANES. I thank the distinguished Senator from West Virginia 
for the enormous contribution he has been making. He has been willing 
to speak the truth and raise these very important and serious 
questions, which I am frank to say I don't think have been given 
adequate attention downtown by the President or by, as the Senator 
characterizes it, his war cabinet. This course we are on has tremendous 
implications in all of the United States.
  Mr. BYRD. It has vast implications. I will say to the Senator that 
some of us have trouble going to sleep at night as we ponder this 
question. I thank the Senator for his observations today and for the 
service he has rendered not only to the State of Maryland but to this 
country. I think the Framers of the Constitution would be proud of Paul 
Sarbanes. I think Paul Sarbanes could very well have been one of the 39 
signers of the Constitution.
  Mr. SARBANES. I thank the Senator. I would hope the circumstance 
would be that the Senator from West Virginia would have been presiding 
in the chair, if I may say so.
  Mr. BYRD. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. REID. Mr. President, I have no problem with the Senator from Utah 
getting the floor. We have a unanimous consent request we wish to 
propound if the Senator will withhold.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I have listened to my distinguished friend 
and colleague from West Virginia. Everybody in this body knows the deep 
affection I have for him and for his feelings, and for his earnest and 
very important analysis of many of the issues we have had to live with 
over the years. I have deep respect for the distinguished Senator from 
Maryland, as well. We came to the Senate together. They are both great 
Senators, in my eyes.
  Mr. BYRD. Mr. President, will the distinguished Senator yield? I 
thank the distinguished Senator. When he speaks of respect for the 
Senator from Maryland and for this Senator, may I say it is mutual. I 
have great respect for the Senator from Utah. There have been few 
occasions--not many--when we have differed on the floor. I have 
tremendous respect for him, for his leadership, for his dedication to 
his country, and for his State.
  Mr. HATCH. Mr. President, I appreciate that. I listened carefully to 
much of what the distinguished Senator from West Virginia said, and he 
raised a number of very important issues, no question about it. I have 
great assurance as a member of the Select Committee on Intelligence in 
our President as we are considering one of those issues. It just points 
out how difficult it is to be President of the United States, 
especially during times of strife and difficulty; how difficult it is 
to make these decisions; how difficult it is to determine what 
imminence really is. Hugo Grotius, the father of international law, 
basically said imminency is a very hard thing to define.
  I think the Senator raised a lot of interesting points, but I also 
believe the President and his advisers have gone over every one of 
those points. I wish to mention one problem, and that is, some people 
try to blame Israel for our positions--not the distinguished Senator 
from West Virginia. But some have tried to raise that point and blame 
Israel. The fact is Israel is important here, but so are all the Arab 
states. Keep in mind, this man, Saddam Hussein, has weapons of mass 
destruction. He came within a few weeks of having a nuclear device. We 
all know that. It was a matter of time. They had the ability. They had 
the capacity. They had the scientists. Who knows how close they are to 
having a nuclear device now, because there is no possible way that 100 
inspectors, or even 1,000 inspectors, whose every action, every word, 
everything they do is monitored by more than 1,000 security people, 
intelligence people.
  Everybody knows Iraq, being the size of California, it is virtually 
impossible to be absolutely sure that these inspections are even 
working. If, in fact, they continue to have--which we know they have--
biological and chemical weapons, we know they have certain stores of 
them. We know pretty much how much they have. But if, in fact, they 
have a nuclear device, I am going to tell my colleagues, Israel is 
acting very restrained and has throughout these difficulties in the 
Middle East. I hope they will be able to continue to act restrained. 
They have one of the best intelligence forces in the world, if not the 
best, in the Mossad. They are not going to wait if we are not going to 
take the responsibility of stopping this type of madman with weapons of 
mass destruction.
  There have been 17 U.N. resolutions that have been ignored--17 of 
them. We have had over 9, 10, 11 years now of watching him flagrantly 
violate the U.N. resolutions. I respect my colleagues for their 
thoughtful analysis of this situation, but I also think there is a 
thoughtful analysis going on in the White House, the State Department, 
at the CIA, and in so many other ways.
  With regard to the war on al-Qaida, anybody who thinks that war is 
not going on and we are not doing everything we possibly can ought to 
look at Khalid Shaikh Mohammed. Khalid Shaikh Mohammed is the director 
of operations for al-Qaida. We were not just sitting there worrying 
about Iraq. We were out there actively trying to find Khalid Shaikh 
Mohammed. I might add, we found him. We have him in custody now. We are 
learning a lot from what we found around Khalid Shaikh Mohammed.
  That battle is ongoing. There is no letup in what we are doing 
against terrorism from that perspective. I can personally testify to 
that.
  We may be very close to ascertaining the whereabouts of Osama bin 
Laden. So let no one misconstrue, the fact is, this administration is 
doing a very good job with regard to al-Qaida, with regard to 
terrorism. I happen to believe the administration listens carefully to 
my distinguished friend from West Virginia, and analyzing and realizing 
they have thought very carefully about the issues he raises, which are 
important issues, issues about which we all have to stop and think.
  Keep in mind, imminence does not mean we have to wait until a nuclear 
device is blowing up New York or Washington, DC, or Los Angeles or 
Miami or Chicago. Imminence means the threat--it can happen tomorrow--
and that threat is all around us. We know because we have been rounding 
up the people in America who are terrorist threats to us, who would not 
hesitate for a minute to take the lives of every American citizen they 
could possibly take.
  I believe right now what we need is to rally together as much as we 
can. We do need wise men to raise these issues, as my distinguished 
friend from West Virginia has done, and he has done it continuously 
throughout his career. Many times he has been right. But I also believe 
there comes a time when we have to act, too, in the direct care and 
nurturing of our own country.
  I believe the administration is listening to everything that has been 
said by my dear colleagues on the other side, and I think they are 
doing everything they can to protect this Nation and to protect the 
world from a third world war.
  One of the worst happenings would be to leave Israel to have to 
defend itself over there and to leave the moderate Arab nations to have 
to defend themselves over there. There are a significant number of 
moderate Arab nations. If they have to go in, then we are really in 
very dire straits.
  I mention these points hopefully in a way of helping all of us 
understand

[[Page 5710]]

these are important issues. It is important we discuss them. It is also 
important we support the administration, which has the ultimate 
responsibility, and we do, too, here, no question about it.
  We have passed a resolution that says we have to do what is in the 
best interest of our country. I believe this President and his advisers 
are doing that. They have, across the board, people who have 
philosophical differences in the administration. I think it is a good 
balance between those in the Defense Department and those in the State 
Department. I say with particularity, no one can say Colin Powell goes 
to war willingly, that he goes to war without having thought through 
every possible problem. No one believes he would risk our young men and 
women or our country in any way without thoughtful reflection and 
consideration.
  I believe that is true of Donald Rumsfeld, who would be perhaps on 
the other side of the equation because he has the obligation of making 
sure our military is the best in the world, and that when we have to 
deploy our military, we do so in a manner that will let anybody know 
the United States is no pushover, and that you better think twice 
before you start taking on our people.
  I respect my colleagues and I respect their viewpoints. I happen to 
differ with them on some of them, but the fact is my main difference is 
I believe these viewpoints have been considered and reflected upon by 
people of good will who, I believe, are trying to do the very best they 
can. In that regard, I compliment the distinguished Prime Minister of 
England who, against some very bad odds and some very difficult times, 
has stood as a very strong leader in this world. I think he will go 
down in history as a very strong leader, recognizing the threat of 
terrorism throughout the world, at least in part emanating from Iraq 
and the leadership of Saddam Hussein.
  I also pay respect to our colleagues and friends in Pakistan who, 
under very stringent and difficult circumstances, have been willing to 
assist us in the capture of Khalid Shaikh Mohammed.
  At this point, I would like to change the subject.
  Mr. REID. Mr. President, could we do our UC? I am sorry to interrupt.
  Mr. HATCH. Without losing my right to the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Pennsylvania.


                           Amendment No. 258

  Mr. SANTORUM. Mr. President, on behalf of Senator Nickles, I state 
that the pending amendment offered by the Senator from Washington, Mrs. 
Murray, increases mandatory spending and, if adopted, would cause an 
increase in the deficit. Therefore, I raise a point of order against 
the amendment pursuant to section 207 of H. Con. Res. 68, the 
concurrent budget resolution on the budget for fiscal year 2000, as 
amended by S. Res. 304 from the 107th Congress.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I move to waive the Budget Act and ask 
for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. SANTORUM. Mr. President, I ask unanimous consent that the vote on 
the motion to waive the Budget Act with respect to the pending Murray 
amendment 258 occur at 6 p.m. today; that the time prior to the vote be 
equally divided in the usual form.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Who yields time?
  Mr. REID. We have another unanimous consent.
  Mr. HATCH. I will be happy to yield to my colleague, without losing 
my right to the floor.
  Mr. SANTORUM. Mr. President, I further ask unanimous consent that 
following the disposition of the Murray amendment, Senator Durbin be 
recognized in order to offer an amendment regarding health exceptions. 
I further ask unanimous consent that following the debate this evening, 
the amendment be temporarily set aside; provided further that when the 
Senate resumes consideration of S. 3 beginning at 9:30 tomorrow 
morning, Senator Boxer be recognized in order to offer a motion to 
commit; further, there be 2 hours equally divided in the usual form, 
and that following that debate the motion be temporarily set aside and 
the Senate resume consideration of the Durbin amendment for 1 
additional hour of debate, equally divided. Finally, I ask unanimous 
consent that following the use or yielding back of the time, the Senate 
proceed to a vote in relation to the Durbin amendment, to be followed 
by a vote in relation to the Boxer motion to commit; provided further 
that no amendments be in order to either the motion or the amendment 
prior to the votes, with 4 minutes equally divided prior to the second 
vote.
  Mr. REID. Reserving the right to object, Mr. President, we made 
progress on this most difficult issue today. If this unanimous consent 
agreement is entered, we will have gone at least halfway.
  There are a couple of other amendments that have been submitted to 
the majority. We hope they would review those and maybe before the 
night is out enter into an agreement to have some end game for this 
legislation.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. I thank the Senator from Nevada for his cooperation, 
and I appreciate the good work. We are making good progress. I 
encourage Members who have statements they would like to make on the 
bill, there will be time in the debate of the Durbin amendment tonight 
to make those statements, and we encourage Members to do that.
  I ask unanimous consent that Senator Murkowski be added as a 
cosponsor to this bill, S 3.
  The PRESIDING OFFICER. Without objection, both requests are agreed 
to.
  Mr. HATCH. Mr. President, I rise today in strong support of S. 3, the 
Partial-Birth Abortion Ban Act of 2003. To begin, I would like to thank 
my colleague from the State of Pennsylvania, Senator Santorum, and 
applaud his leadership on this bill particularly, and on this issue 
generally, over the years. He is clearly very passionate about it, and 
is also one of the most extremely knowledgeable people anywhere on this 
issue. I respect him and am very proud of the work he has done on this 
issue.
  I have spoken on the need to ban partial birth abortions many times 
since we began this effort many years ago. I have done so out of my 
personal conviction, and also because I am here to represent the people 
of Utah. By a huge margin, Utahns find the practice of partial-birth 
abortion offensive, immoral and impossible to justify as legal in 
America, or anywhere else in the world.
  As chairman of the Senate Judiciary Committee, I have chaired several 
hearings about partial-birth abortions in past sessions, and I remain 
as convinced as ever that this important legislation is essential and 
will go a long way toward helping us restore our sense of human dignity 
in this country.
  This bill does only one thing: it prohibits one particularly gruesome 
abortion procedure--so gruesome that only a handful of doctors are 
willing to perform it. This procedure is never medically necessary. It 
is simply morally reprehensible, indefensible, and should be banned. I 
honestly do not know how anyone, after learning of this procedure, 
could continue to defend it.
  Those Members of this body who disagree with me, I think they should 
have to actually watch this procedure being done. Once they have seen 
the baby's legs kicking while it is being killed--I challenge them to 
defend it then, because as one can see, the legs and hands are outside, 
and anybody watching will know this is a fully living human being.
  The procedure, known as dilation and extraction--or ``D&X''--involves 
the partial delivery of an intact baby into the birth canal. In the 
case of a breech presentation, the baby is delivered from the feet 
through the shoulders so

[[Page 5711]]

only the head remains in the birth canal. And in the case of a head-
first presentation, the body's full head is delivered outside the birth 
mother. Then, either scissors or another instrument are used to stab a 
hole in the base of the skull. There is no doubt that this is a living 
baby at this point--a baby that feels pain, make no mistake about it. 
After the scissors are stabbed into the head a suction catheter is 
inserted to suck out the baby's brains and collapse the skull. That is 
about as barbaric as anything I have seen or heard.
  Each time I read the description of this procedure I am sickened. It 
is not done as a mass of tissue but to a living baby capable of feeling 
pain and, at the time this procedure is typically performed, capable of 
living outside of the womb with appropriate medical attention.
  All this bill would do is ban this grotesque, barbaric procedure. We 
are not talking about the entire framework of abortion rights here but 
just one procedure. And S. 3 also provides an exception for cases where 
the life of the mother is endangered by a physical disorder, illness or 
injury.
  At least 31 States--including my home State of Utah--have enacted 
their own partial-birth abortion bans but, sadly, many have not taken 
effect due to temporary or permanent injunctions. S. 3 would create a 
Federal ban on just the D&X procedure I have described, and it 
carefully conforms to the constitutional jurisprudence in this area.
  Now, let me explain how this bill differs slightly from previous 
versions. A couple of years ago, the Supreme Court handed down an 
opinion in Stenberg v. Carhart, which addressed a partial-birth ban in 
Nebraska. The Stenberg court, relying in part on a dubious trial court 
finding that it was forced to accept, struck down the statute.
  In fact, the trial court's finding that partial-birth abortions could 
be necessary to protect the health of the mother was just wrong, and 
the findings outlined in S. 3 clarify this point.
  The record in support of the fact that D&X is never medically 
necessary is long. In November, 1995, I presided over a 6\1/2\ hour 
Senate Judiciary Committee hearing on partial-birth abortions, and we 
also had a 1997 joint hearing with the Constitution Subcommittee in 
which we heard that D&X is not done for medical reasons.
  The former U.S. Surgeon General, C. Everett Koop has said:

     . . . in no way can I twist my mind to see that [partial-
     birth abortion] . . . is a medical necessity for the mother. 
     And it certainly can't be a necessity for the baby.

  And Dr. Daniel Johnson, the former president of the American Medical 
Association said in 1997 that he and others investigating the issue:

     could not find any identified circumstances in which the 
     procedure was the only safe and effective abortion method.

  The fact is that there is no medical need to allow this type of 
barbaric procedure.
  The 5-4 Stenberg court also had concerns that the procedure, as 
defined in the Nebraska statute, could have been construed to ban more 
than one type of abortion procedure, including one which could 
theoretically be used to protect the health of the mother. Based on 
this, the court found that the lack of a ``health of the mother'' 
exception created an ``undue burden'' because it could prevent a 
procedure that could be necessary for the health of the mother.
  S. 3, the Partial-Birth Abortion Ban Act of 2003, addresses that 
problem as well by very specifically defining the procedure so that it 
only prohibits the D&X procedure, which, as our hearings have shown, 
and the findings in S. 3 confirm, is never necessary to protect the 
health of the mother.
  Let me repeat, the carefully-drafted definition used in S. 3 for 
partial-birth abortion cannot be construed to include any abortion 
procedure other than the D&X procedure.
  In other words, other alternative procedures, all of which will 
remain legal under S. 3, will be available in the event that the health 
of the mother needs to be preserved. For this reason, this bill does 
not require an exception for the health of the mother.
  Now, let me address a misrepresentation that has been floated over 
the years--that is, that this barbaric procedure is rare. The record 
indicates that this is clearly not the case. In fact, one clinic in New 
Jersey alone admitted to 1500 of these procedures in just one year! And 
that is just one state. How can anyone claim that is ``rare''?
  And in the State of Kansas, which requires that doctors report 
partial-birth abortions and also cite the reasons given for having the 
abortion, we found out that doctors there performed 182 partial-birth 
abortions in just one year on babies they deemed viable. And every one 
of these reports, by the way, cited ``mental health'' as the reason for 
having this barbaric procedure.
  It is likely that there are at least 3,000 to 5,000 of these 
procedures performed every year, despite what some try to claim.
  To further expose the lack of credibility of those who claim this 
procedure is rare, we need only listen to Ron Fitzsimmons of the 
National Coalition of Abortion Providers. He admitted in 1997 that when 
he told us the procedure was rare, he ``lied through my teeth.'' He 
added that he only represented it as being rare because, ``I just went 
out there and spouted the party line.'' That shows how far these people 
will go. Abortion is so sacred to them they see no reason to ban any 
aspect of it, not even this barbaric procedure.
  The truth always eventually prevails over the party line, and the 
truth is that this procedure is not rare, and it should be banned.
  I think former Sen. Daniel Moynihan had it about right when speaking 
in favor of this ban in previous debates he called the procedure 
``close to infanticide.'' It is infanticide.
  In recent years, we have heard about teenaged girls giving birth and 
then dumping their newborns into trash cans. One young woman was 
criminally charged after giving birth to a child in a bathroom stall 
during her prom, and then strangling and suffocating her child before 
leaving the body in the trash. Tragically, there have been several 
similar incidents around the country in the past few years.
  This is what happens when we devalue human life.
  William Raspberry argued in a column in the Washington Post several 
years ago that ``only a short distance [exists] between what [these 
teenagers] have been sentenced for doing and what doctors get paid to 
do.'' How right he is.
  When you think about it, it is incredible that there is a mere three 
inches separating a partial-birth abortion from murder.
  Now, I have sympathy for any young woman who contemplates an 
abortion. The circumstances that drive a woman to it must certainly be 
complex and appear to her to be overwhelming and insoluble.
  But the D&X procedure is not an ordinary abortion. It is not 
contemplated by the Roe v. Wade decision. Even the Stenberg court 
confirmed, and I quote, ``By no means must physicians [be granted] 
`unfettered discretion' in their selection of abortion methods.'' So 
this is not about overturning Roe v. Wade--that is a red herring.
  The D&X procedure is one method which we ought not give doctors the 
discretion to perform. It is never medically necessary, it is never the 
safest procedure available, and it is morally reprehensible and 
unconscionable.
  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.'' I wholeheartedly agree. I 
strongly urge my colleagues to join me in voting in favor of S. 3, the 
Partial Birth Abortion Ban Act of 2003, and help restore human dignity.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, this would be an easier debate if we were 
speaking to an issue that only dealt with healthy mothers and healthy 
fetuses. The fact is, we are not. The Senator from California outlined 
a number of very difficult, troubling cases of women who have had to 
make very difficult choices that no one on

[[Page 5712]]

this floor can comprehend without having gone through.
  If we can reduce unintended pregnancies we can go a long way to 
reducing abortions in this country and not have these kinds of debates 
in the Senate. That is precisely what the current pending amendment is 
about that we are discussing at this time. It is an amendment that 
provides contraceptive equity for women. It provides emergency 
contraception education. It provides emergency contraceptives in the 
emergency room and it expands SCHIP and Medicaid to include low-income 
pregnant women so the mother and the fetus are both covered--unlike the 
current administrative rule.
  My colleagues on the other side have offered a point of order against 
this amendment. I say to them, no one can hide behind a point of order. 
If we truly believe we want to reduce the number of abortions in this 
country, if we reduce the number of unintended pregnancies and allow 
help for women, as this amendment will do, we will all have made a step 
in the right direction.
  I will have more to say but my colleague from Illinois is here. I 
yield 15 minutes to the Senator.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from Illinois.
  Mr. DURBIN. I thank the Senator from Washington.
  I come to the floor to discuss an issue which is highly charged and 
emotional. In the 20 years I have served in both the House and the 
Senate, I can say the debates on this issue have been some of the most 
painful. No matter who you are, in the Senate or the House, whatever 
your political party, whatever your background, if you take this issue 
as seriously as you must, you have to reflect every time as to whether 
or not your vote makes sense, is fair, is a policy that America should 
follow.
  Now, of course, we are debating the so-called partial-birth abortion 
procedure. I came to Congress many years ago personally opposed to 
abortion. It was part of my faith tradition, part of my personal value 
system. I came here to find that many of the people I assumed would be 
my allies opposed abortion but had other elements in their belief which 
started to trouble me.
  I believe that a woman pregnant, facing extraordinary medical 
circumstances, a woman who is pregnant, having been impregnated by a 
rape or incest, should be given special concern and consideration. But 
I found many times that those who opposed abortions would make no 
exception no matter what the circumstances leading up to a pregnancy. 
And that troubled me.
  I also found that in those extraordinary situations where a woman 
found in her pregnancy, one that she anticipated to be normal, 
uneventful, that something awful had occurred, that, in fact, many of 
the people who opposed abortion would not even allow that procedure in 
those extraordinary medical situations. I was surprised by that. I 
didn't expect to find it.
  Then I met with some of the women and talked to them about their 
personal experiences. One of them is a woman I met from my home State 
of Illinois, Vikki Stella. This is a picture of Vikki, her husband, her 
family. Vikki's is an extraordinary story.
  When Vikki was pregnant several years ago, she learned late in her 
pregnancy that her much wanted son was suffering from some 
extraordinary, serious abnormalities. Vikki, who is diabetic, was told 
that if she continued her pregnancy through to its natural conclusion, 
she could endanger her own health.
  She told me personally--I had a chance to meet with her--that she 
couldn't believe it. This was supposed to be a very normal pregnancy. 
As you can see, she has other children. She learned, much to her 
surprise and amazement, that she faced an extraordinarily complicated 
pregnancy, and her doctor sat down with her and her husband, who is 
also a doctor, and said to them: You need to do something; you need to 
do it now to protect Vikki's survival and her own health.
  She was faced with a terrible decision. She had already created the 
nursery in her home for the new baby. They had the walls painted, the 
furniture picked out; they expected in just a few weeks to have this 
new baby--to be told, instead, that she was facing a medical crisis in 
her own life. As she said, she could barely walk, it hit her so hard. 
Her husband had to help her walk away from the doctor's office.
  She went home, she told me, in tears, saying to her husband: What are 
we going to do? I don't believe in abortion. He explained to her, as 
her doctor explained to her, that unless she did something right then 
and there to terminate that pregnancy, she would endanger her own life 
and her ability to have other children.
  She prayed over it, thought about it long and hard with her husband 
and family, and decided to go through with the termination of the 
pregnancy.
  Would you want to face that decision? I am sure glad I never had to 
as a father and husband. But she faced it. She terminated that 
pregnancy.
  One of the last times I saw Vikki was here, right in front of the 
Capitol Building. She was pushing a stroller with her new baby in it--
Nicholas. Nicholas came into this world as healthy and normal as you 
could ever ask.
  So people who are arguing that those who go in for these 
extraordinary abortion procedures somehow hate babies, or look at these 
things lightly--please. If you listen to the women who have been 
through it, if you talk to them and their families, you will understand 
the tragedy that comes into their life, the crisis that comes into 
their life.
  What we are saying on the floor of the Senate with S. 3, a bill 
sponsored by Senator Santorum, is that we do not want the doctor to 
make the decision. No. And we don't want the mother or her husband to 
make the decision. We want to make the decision. The Government should 
make the decision. The Government should overrule the doctor. The 
Government should say to her: Finish your pregnancy regardless of the 
outcome. You can't use the procedure.
  Is that the right thing to do, for us to inject ourselves into those 
medical crisis situations? I don't think it is.
  Whatever your view on abortion personally, for goodness' sake, I 
think you should have the heart to understand that you don't know 
everything; that, frankly, there are doctors in disagreement as to 
whether these abortion procedures are needed. If there is true medical 
disagreement, are we going to choose one side and say this will be the 
official Government medical position? That is what we are hearing 
today. We are hearing, when it comes to abortion, don't let your doctor 
decide; let your Senator decide for you.
  I may have some expertise in some areas, but it certainly is not in 
medicine. I rely on professionals for my family, for myself, and when 
it comes to making these important decisions.
  If you listen to these doctors, they are telling us: For goodness' 
sake, Senator, stop and think. Do you want to say that you can imagine 
every possible complication a mother would find late in her pregnancy 
and you want to rule that certain surgical procedures cannot be used to 
save a mother's health or her life? That is how far this goes. And it 
goes too far.
  The other thing I learned when I came here was that many of the 
people who oppose abortion very strongly, with the deepest of 
convictions, feel just as strongly in opposition to contraception. I 
couldn't believe that part because--think about it--if you don't offer 
to a woman, a wife, for example, in a family situation, an option to 
plan her pregnancies, then you are just inviting an unplanned or 
unwanted pregnancy, inviting the possibility of abortion.
  So to oppose contraception is to say to the woman: We are not going 
to stand by you even making your own decision and your family decision 
on when a child should come to your household. Of course, you know what 
happens. The likelihood of abortion increases when there are unwanted, 
unplanned pregnancies.
  I always thought if you opposed abortion, it was common sense to say 
we would make contraception, family planning, birth control information 
available to women in America. That seems to me just common sense, so

[[Page 5713]]

that you wouldn't have the unwanted, unplanned pregnancies leading to 
abortions.
  I was stunned when I came to Congress many years ago to find that the 
people most vehemently opposed to abortion were equally opposed to 
contraception. How can that make any sense? Thank goodness Senator 
Patty Murray of Washington, along with Senator Reid of Nevada, came to 
the floor today on this abortion debate and said we really need to be 
on the record as to whether or not we are going to provide 
contraception in health insurance plans so that women can get birth 
control pills to decide when they are going to have children, when it 
is the right thing for them and their family.
  Isn't it ironic that these health insurance plans will provide Viagra 
to men but will not provide birth control pills to women? That is a 
fact. Senator Murray's amendment comes to the floor and says we are 
going to put an end to that. We are going to provide that these women 
and families will have the contraception that they need to make their 
decisions on planning their families so there are wanted and planned 
children as often as possible, and the likelihood of abortion is 
diminished. That seems so patently obvious.
  I commend Senator Murray again. She goes on to say if your feelings 
and emotions are strong when it comes to mothers and babies, for 
goodness' sake, prove it--not just by voting against abortion but 
voting for the mother, the pregnant mother, making certain that she has 
access to health care during her pregnancy.
  Senator Murray offers a provision in her amendment which says we are 
going to allow pregnant women across America to come into what we call 
the SCHIP plan, a basic health insurance program offered by the States 
so that more and more working mothers have a chance to get prenatal 
care and have healthy babies. Why in the world would anybody even 
debate this: Contraception, birth control, family planning available 
for mothers, women and their families, and health insurance coverage 
for the pregnant mother so she can be certain to come out of this 
pregnancy healthy herself with a healthy baby?
  This is a good amendment. This is a pro-life amendment.
  What do we hear? We hear that the Senators on the other side of the 
aisle who say they are opposed to abortion--and I believe they are--are 
now going to try to kill the Murray amendment. They don't want the 
Senate to go on record in favor of family planning and birth control in 
the health insurance plans for women across America. They don't want 
the Senate to go on record so rape and incest victims brought into 
emergency rooms can have the contraceptive care they need immediately 
so they do not end up pregnant because of the crime that was committed 
against them. They don't want to vote for the Murray amendment that 
says pregnant mothers will have health insurance so that the babies 
will be healthy and the mothers will be healthy. And they call 
themselves pro-life.
  I am sorry, it doesn't work. It is not consistent. If they are 
consistently pro-life, they should stand by the woman, stand by the 
mother, do everything in their power to make certain that that baby is 
born into a loving family and is as healthy as it possibly can be. That 
is what this amendment comes down to.
  It is hard to imagine there is any opposition, and yet there is. In 
fact, a Senator will come to the floor here, he will make a procedural 
motion, and it will take more than a majority for Senator Murray to 
prevail. Do I understand right, we will need 60 votes? Is that correct? 
Sixty votes out of a hundred. So they have just raised the bar, and 
they said to Senator Murray: If you want to protect women in terms of 
family planning and birth control, you need more than a majority, 
Senator Murray; you need 60 votes.
  Mr. REID. Will the Senator yield?
  Mr. DURBIN. I will just finish, and I will be happy to yield.
  If you want to protect women who have been raped who are going into 
the emergency rooms--can you imagine the emotional problem they are 
facing right then and there? If you want to protect them so they can 
have emergency contraception and not be pregnant, you need 60 votes. 
Fifty-one will not do. If you want to give women basic health insurance 
so they can have a successful pregnancy, you need 60 votes. That is 
what is coming from the Republican side of the aisle. I don't believe 
it is consistent with the ethic that says we care not just about babies 
but about the mothers as well.
  I yield to the Senator from Nevada for a question.
  Mr. REID. Madam President, in the debate which took place from 11 
until about quarter to 1 today, there was a lot of talk about 60 votes. 
I am wondering if this is a constitutional vote. They are asking for 60 
votes. Does the Senator have anything to say about that?
  Mr. DURBIN. The Senator from Nevada is right. When it comes to 
judicial nominations, the floor was filled earlier this morning with 
Republican Senators objecting to 60 votes. They set an outrageous 
standard to live by. Now they have turned around here. When it comes to 
Senator Murray's amendment to stand by women, to stand by pregnant 
mothers, to stand by victims of crimes, they have said to her that she 
is going to need 60 votes. In other words, they have been trying their 
best to stop her from protecting women in this circumstance.
  I have to say to the Senator from Nevada, whether you are pro-choice, 
pro-life, or anti-abortion, it really is a woman's right to choose. 
Wouldn't you stand by a woman's right to plan for her own family and to 
be able to have at her disposal health insurance, birth control pills, 
and family planning information? We certainly say if a husband decides 
he needs Viagra in order to have a family, health insurance will cover 
that. Why wouldn't we cover birth control pills? That is what this 
says. Senator Reid of Nevada has a bill. Senator Murray has added it to 
her amendment. It is eminently sensible.
  We come down in this debate to pretty basic values and issues. As far 
as I am concerned, whatever you call yourself on the abortion issue, I 
think most people across America will agree we want to reduce the 
number of unplanned and unwanted pregnancies. We want to reduce those 
tragic circumstances in the case of crimes of rape or incest, and we 
want to make sure mothers have health insurance protection so they and 
their babies will be helped and taken care of in the best medical 
profession. Sadly, the opposition on the other side makes that very 
difficult, if not impossible.
  This will be a good test vote when it comes to families and the 
rights of women and children. It really gets down to some fundamentals. 
It is not enough to stand up, as did my colleague from Wisconsin, David 
Obey, and pose for holy pictures and say, I am opposed to abortion, and 
then turn around and vote against family planning that can avoid 
abortion; turn around and vote against those contraception techniques 
of an emergency nature and avoid unwanted pregnancies; to vote against 
health insurance for these mothers.
  The Senator from Washington has put this debate in the right 
perspective. If we are going to be honest about this issue, we need to 
support Senator Murray. I will be one who votes for her amendment.
  I yield the floor.
  Mr. REID. Madam President, was the time evenly divided?
  The PRESIDING OFFICER. Yes.
  Mr. REID. How much time remains on each side?
  The PRESIDING OFFICER. The Senator from Washington controls 21 
minutes 11 seconds. The Senator from Pennsylvania controls 25 minutes 
38 seconds.
  Mr. REID. I thank the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. SANTORUM. Madam President, I want to make a couple of points, and 
then I will yield to my colleague.
  No. 1, the Senator from Oklahoma asked me to make a budget point of 
order on his behalf. I want to make it clear he has an SCHIP provision 
that is in the budget which they are marking up later this week. We 
will be on that subject. We will have plenty of opportunity to deal 
with this issue next week.

[[Page 5714]]

  I agree with the Senator from Illinois. We should have a provision 
covering women going through pregnancy, and be supportive of that. I 
will not be supportive of covering medications that would lead to a 
fertilized egg not implanted in the uterus. I believe life begins at 
conception. I will not support drugs that would prevent a conceived 
embryo to be implanted.
  I have mixed emotions about this amendment. But, nevertheless, it is 
roughly a $1 billion addition to the budget, and that should be done in 
the context of the budget, not on a partial-birth abortion bill.
  Finally, I would like to add to the record by unanimous consent a 
letter from Dr. Pamela Smith, who was the director in 1996 of the 
Department of Obstetrics and Gynecology at Mt. Sinai Medical Center in 
Chicago. She is a member of the Association of Professors of Obstetrics 
and Gynecology. In response to the case Senator Durbin has laid out, 
she has a response that is rather lengthy. But I will just quote one 
comment she said.

       . . . medically I would contend of all the abortion 
     techniques currently available to her this was the worst one 
     that could have been recommended for her.

  Again, that just proves the point.
  I ask unanimous consent to have this letter printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                      Physicians' Ad Hoc Coalition


                                                    for Truth,

                                  Chicago, IL, September 23, 1996.
       Dear Member of Congress: My name is Dr. Pamela E. Smith. I 
     am a founding member of PHACT (Physicians' Ad Hoc Coalition 
     for Truth). This coalition of over three hundred medical 
     providers nationwide (which is open to everyone, irrespective 
     of their political stance on abortion) was specifically 
     formed to educate the public, as well as those involved in 
     government, in regards to disseminating medical facts as they 
     relate to the Partial-Birth Abortion procedure.
       In this regard, it has come to my attention that an 
     individual (Ms. Vicki Stella, a diabetic) who underwent this 
     procedure, who is not medically trained, has appeared on 
     television and in Roll Call proclaiming that it was necessary 
     for her to have this particular form of abortion to enable 
     her to bear children in the future. In response to these 
     claims I would invite you to note the following:
       1. Although Ms. Stella proclaims this procedure was the 
     only thing that could be done to preserve her fertility, the 
     fact of the matter is that the standard of care that is used 
     by medical personnel to terminate a pregnancy in its later 
     stages does not include partial-birth abortion. Casarean 
     section, inducing labor with pitocin or protoglandins, or (if 
     the baby has excess fluid in the head as I believe was the 
     case with Ms. Stella) draining the fluid from the baby's head 
     to allow a normal delivery are all techniques taught and used 
     by obstetrical providers throughout this country. These are 
     techniques for which we have safety statistics in regards to 
     their impact on the health of both the woman and the child. 
     In contrast, there are no safety statistics on partial-birth 
     abortion, no reference of this technique in the national 
     library of medicine database, and no long term studies 
     published that prove it does not negatively affect a woman's 
     capability of successfully carrying a pregnancy to term in 
     the future. Ms. Stella may have been told this procedure was 
     necessary and safe, but she was sorely misinformed.
       2. Diabetes is a chronic medical condition that tends to 
     get worse over time and that predisposes individuals to 
     infections that can be harder to treat. If Ms. Stella was 
     advised to have an abortion most likely this was secondary to 
     the fact that her child was diagnosed with conditions that 
     were incompatible with life. The fact that Ms. Stella is a 
     diabetic, coupled with the fact that diabetics are prone to 
     infection and the partial-birth abortion procedure requires 
     manipulating a normally contaminated vagina over a course of 
     three days (a technique that invites infection) medically I 
     would contend of all the abortion techniques currently 
     available to her this was the worse one that could have been 
     recommended for her. The others are quicker, cheaper and do 
     not place a diabetic at such extreme risks for life-
     threatening infections.
       3. Partial-birth abortion is, in fact, a public health 
     hazard in regards to women's health in that one employs 
     techniques that have been demonstrated in the scientific 
     literature to place women at increased risks for uterine 
     rupture, infection, hemorrhage, inability to carry 
     pregnancies to term in the future and maternal death. Such 
     risks have even been acknowledged by abortion providers such 
     as Dr. Warren Hern.
       4. Dr. C. Everett Koop, the former Surgeon General, 
     recently stated in the AMA News that he believes that people, 
     including the President, have been misled as to ``fact and 
     fiction'' in regards to third trimester pregnancy 
     terminations. He said, and I quote, ``in no way can I twist 
     my mind to see that the late term abortion described . . . is 
     a medical necessity for the mother . . . I am opposed to 
     partial-birth abortions.'' He later went on to describe a 
     baby that he operated on who had some of the anomalies that 
     babies of women who had partial-birth abortions had. His 
     particular patient, however, went on to become the head nurse 
     in his intensive care unit years later!
       I realize that abortion continues to be an extremely 
     divisive issue in our society. However, when considering 
     public policy on such a matter that indeed has medical 
     dimensions, it is of the utmost importance that decisions are 
     based on facts as well as emotions and feelings. Banning this 
     dangerous technique will not infringe on a woman's ability to 
     obtain an abortion in the early stage of pregnancy or if a 
     pregnancy truly to be ended to preserve the life of health of 
     the mother. What a ban  will do is insure that women will not 
     have their lives jeopardized when they seek an abortion 
     procedure.
       Thank you for your time and consideration.
           Sincerely,
                                                     Pamela Smith,
      Director of Medical Education, Department of Obstetrics and 
                             Gynecology, Mt. Sinai Medical Center.

  Mr. SANTORUM. Second, I have another letter with an analysis done by 
Dr. Curtis Cook, Maternal Fetal Medicine, Michigan State College of 
Human Medicine, on the case of Coreen Costello. I will discuss both of 
these in detail later. But I ask unanimous consent that this letter be 
printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                [Physicians' Ad Hoc Coalition for Truth]

                      The Case of Coreen Costello

       Partial-birth abortion was not a medical necessity for the 
     most visible ``personal case'' proponent of procedure.
       Coreen Costello is one of five women who appeared with 
     President Clinton when he vetoed the Partial-Birth Abortion 
     Ban Act (4/10/96). She has probably been the most active and 
     the most visible of those women who have chosen to share with 
     the public the very tragic circumstances of their pregnancies 
     which, they say, made the partial-birth abortion procedure 
     their only medical option to protect their health and future 
     fertility.
       But based on what Ms. Costello has publicly said so far, 
     her abortion was not, in fact, medically necessary.
       In addition to appearing with the President at the veto 
     ceremony, Ms. Costello has twice recounted her story in 
     testimony before both the House and Senate; the New York 
     Times published an op-ed by Ms. Costello based on this 
     testimony; she was featured in a full page ad in the 
     Washington Post sponsored by several abortion advocacy 
     groups; and, most recently (7/29/96) she has recounted her 
     story for a ``Dear Colleague'' letter being circulated to 
     House members by Rep. Peter Deutsch (FL).
       Unless she were to decide otherwise, Ms. Costello's full 
     medical records remain, of course, unavailable to the public, 
     being a matter between her and her doctors. However, Ms. 
     Costello has voluntarily chosen to share significant parts of 
     her very tragic story with the general public and in very 
     highly visible venues. Based on what Ms. Costello has 
     revealed of her medical history--of her own accord and for 
     the stated purpose of defeating the Partial-Birth Abortion 
     Ban Act--doctors with PHACT can only conclude that Ms. 
     Costello and others who have publicly acknowledged undergoing 
     this procedure ``are honest women who were sadly misinformed 
     and whose decision to have a partial-birth abortion was based 
     on a great deal of misinformation'' (Dr. Joseph DeCook, Ob/
     Gyn, PHACT Congressional Briefing, 7/24/96). Ms. Costello's 
     experience does not change the reality that a partial birth 
     abortion is never medically indicated--in fact, there are 
     available several alternative, standard medical procedures to 
     treat women confronting unfortunate situations like Ms. 
     Costello had to face.
       The following analysis is based on Ms. Costello's public 
     statements regarding events leading up to her abortion 
     performed by the late Dr. James McMahon. This analysis was 
     done by Dr. Curtis Cook, a perinatologist with the Michigan 
     State College of Human Medicine and member of PHACT.
       ``Ms. Costello's child suffered from at least two 
     conditions: `polyhydramnios secondary to abnormal fetal 
     swallowing,' and `hydrocephalus'. In the first, the child 
     could not swallow the amniotic fluid, and an excess of the 
     fluid therefore collected in the mother's uterus. The second 
     condition, hydrocephalus, is one that causes an excessive 
     amount of fluid to accumulate in the fetal head. Because of 
     the swallowing defect, the child's lungs were not properly 
     stimulated, and an underdevelopment of the lungs would likely 
     be the cause of death if abortion had not intervened. The 
     child had no significant

[[Page 5715]]

     chance of survival, but also would not likely die as soon as 
     the umbilical cord was ctut.
       The usual treatment for removing the large amount of fluid 
     in the uterus is a procedure called amniocentesis. The usual 
     treatment for draining excess fluid from the fetal head is a 
     procedure called cephalocentesis. In both cases the excess 
     fluid is drained by using a thin needle that can be placed 
     inside the womb through the abdomen (``transabdominally''--
     the preferred route) or through the vagina 
     (``transvaginally''). The transvaginal approach however, as 
     performed by Dr. McMahon on Ms. Costello, puts the woman at 
     an increased risk of infection because of the non-sterile 
     environment of the vagina. Dr. McMahon used this approach 
     most likely because he had no significant expertise in 
     obstetrics and gynecology. In other words, he may not have 
     been able to do it well transabdominally--the standard method 
     used by ob/gyns--because that takes a degree of expertise he 
     did not possess. After the fluid has been drained, and the 
     head decreased in size, labor would be induced and attempts 
     made to deliver the child vaginally.
       Ms. Costello's statement that she was unable to have a 
     vaginal delivery, or, as she called it, `natural birth or an 
     induced labor,' is contradicted by the fact that she did 
     indeed have a vaginal delivery, conducted by Dr. McMahon. 
     What Ms. Costello had was a breech vaginal delivery for 
     purposes of aborting the child, however, as opposed to a 
     vaginal delivery intended to result in a live birth. A 
     caesarean section in this case would not be medically 
     indicated--not because of any inherent danger--but because 
     the baby could be safely delivered vaginally.''
       Given these medical realities, the partial-birth abortion 
     procedure can in no way be considered the standard, medically 
     necessary or appropriate procedure appropriate to address the 
     medical complications described by Ms. Costello or any of the 
     other women who were tragically misled into believing they 
     had no other options.''

  Mr. SANTORUM. Madam President, I want to yield 10 minutes to the 
Senator from Kansas, and thank him.
  Mr. DURBIN. Madam President, will the Senator from Pennsylvania be 
kind enough to yield for 2 minutes so I might respond? And I would be 
happy to yield.
  Mr. SANTORUM. On the Senator's time. That is fine.
  Mrs. MURRAY. I yield 2 minutes to the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. I hope you listen carefully to what the Senator from 
Pennsylvania just entered into the Record. He entered into the Record 
an opinion of another doctor which said the woman who faced that crisis 
pregnancy should have done it differently. I don't know if the Senator 
from Pennsylvania is aware of the fact that she not only had the 
counsel of her own obstetrician/gynecologist, but she had the counsel 
of her husband who was a practicing physician. She was relying on her 
husband's medical knowledge and the advice of her obstetrician/
gynecologist. The Senator from Pennsylvania has found another doctor 
who disagrees. And he says that is why we should overrule her personal 
doctor and her personal obstetrician in this case; that we should make 
the decision here; that Senators and politicians should be making the 
decisions about what was the right information for her in that 
circumstance.
  Is there something wrong with that picture? I think there is. We 
should leave the decisions in a crisis pregnancy, in a case where 
literally disaster occurs to the family, to the woman and her doctor, 
to her family, and to her God. For us to step in and say we are going 
to make medical decisions goes way too far.
  The American College of Obstetricians and Gynecologists, representing 
45,000 OB/GYNs, agrees:

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

  I yield the floor.
  Mr. SANTORUM. Madam President, if I may respond very briefly, there 
is no evidence in any record, nor did she give any testimony, that this 
was a crisis pregnancy. Second, there is ample testimony and 
overwhelming evidence that this procedure is never necessary for the 
life or health of the mother. It is never used in a 3-day procedure.
  I won't go into great detail. That is the reason we have malpractice 
laws in this country. Doctors make very bad decisions and give bad 
advice to patients. It happens all the time. In this case, it happens 
with frequency. But there is dispositive, overwhelming evidence that 
the advice she was given was wrong. Because someone gives advice 
doesn't mean it is correct advice. She got bad advice and, 
unfortunately, it resulted in a heinous act being perpetrated in this 
case.
  I yield 10 minutes to the Senator from Kansas.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Madam President, I thank my colleague from 
Pennsylvania for yielding the time. This debate is about a very 
difficult and very important topic of our era and our day.
  I believe a true mark of a civilized society is not the level of 
human dignity it confers upon the strong or wealthy, but a true mark is 
on how much it confers upon the vulnerable and the oppressed. Clearly 
an abortion procedure that dismembers and kills partially-born human 
beings has no place in a civilized society.
  I think it is becoming increasingly clear that the impact of 
abortions on society is profound. I want to spend some time talking 
about the impact on society, particularly when you take such a risky 
procedure as this which is not necessary and allow it to continue 
within the context of this society today.
  I ask unanimous consent to have printed in the Record some statistics 
of the Kansas Department of Health and Environment on partial-birth 
abortions, when they were being conducted in the State, and the reasons 
they were being done.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Kansas Department of Health & Environment, Center for 
           Health and Environmental Statistics,
                                       Topeka, KS, March 24, 2000.
       Dear Interested Party: State statutes require physicians, 
     ambulatory surgical centers, and hospitals to report 
     abortions to the Kansas Department of Health and Environment. 
     The law also requires physicians, who perform abortions, to 
     report to KDHE the number of certifications received under 
     the Women's Right-to-Know Act. These data are compiled by the 
     Center for Health and Environmental Statistics, Office of 
     Health Care Information.
       The collection of these vital statistics reports for 1999 
     is now complete. This report is a summary of the preliminary 
     analysis of that data. Additional analysis of the 1999 
     abortion data will be included in the Kansas Annual Summary 
     of Vital Statistics.
       This report also contains information the Legislature 
     requires physicians to report regarding (a) abortions 
     performed at 22 weeks or more and (b) ``partial birth'' 
     procedures. Responses to each of the numbered questions in 
     these two categories are included and tabulated.
       Please feel free to contact me regarding any questions you 
     have.
           Sincerely,

                                     Lorne A. Phillips, Ph.D.,

                                       State Registrar & Director,
                   Center for Health and Environmental Statistics.

           SELECTED INCLUDED ABORTION STATISTICS, KANSAS, 1999
------------------------------------------------------------------------
                Selected statistics                   Number    Percent
------------------------------------------------------------------------
Total\1\ induced abortions reported...............     12,421      100.0
Total\2\ physician certifications reported........     12,708      100.0
Residence of patient:
    Number of in-state residents..................      6,392       51.5
    Number of out-of-state residents..............      6,029       48.5
    Not Stated....................................  .........       n.a.
        Total Reported............................     12,421      100.0
Age group of patient:
    Under 15 years................................        114        1.0
    15-19 years...................................      2,622       21.1
    20-24 years...................................      4,149       33.4
    25-29 years...................................      2,728       22.0
    30-34 years...................................      1,499       12.0
    35-39 years...................................        960        7.7
    40-44 years...................................        328        2.6
    45 years and over.............................         21        0.2
    Not Stated\3\.................................  .........       n.a.
        Total Reported............................     12,421      100.0
Race of patient:
    White.........................................      9,044       73.0
    Black.........................................      2,668       21.5
    Native American...............................        133        1.1
    Chinese.......................................        100        1.0
    Japanese......................................         15        0.1
    Hawaiian......................................          3        0.0
    Filipino......................................         16        0.1
    Other Asian or Pacific Islander...............        387        3.1
    Other Nonwhite................................         17        0.1
    Not Stated\3\.................................         38       n.a.
        Total Reported............................     12,421      100.0
Marital Status of Patient:
    Yes...........................................      2,472       19.9
    No............................................      9,921       80.1
    Not Stated\3\.................................         28       n.a.
        Total Reported............................     12,421      100.0
Weeks Gestation:
    Less than 9 weeks.............................      7,444       60.0
    9-12 weeks....................................      2,998       24.1
    13-16 weeks...................................        841        6.8
    17-21 weeks...................................        564        4.5
    22 weeks & over...............................        574        4.6
    Not Stated....................................  .........       n.a.
        Total Reported............................     12,421      100.0
Method of Abortion:
    Suction curettage.............................     10,650       85.7

[[Page 5716]]

 
    Sharp curettage...............................          2        0.0
    Dilation & Evacuation.........................        929        7.5
    Medical Procedure I...........................  .........  .........
    Medical Procedure II..........................        289        2.3
    Intra-uterine prosta-glandin instillation.....          3        0.0
    Hysterotomy...................................  .........  .........
    Hysterectomy..................................  .........  .........
    Digoxin-Induction.............................        366        3.0
    ``Partial Birth'' Procedure...................        182        1.5
    Other.........................................  .........  .........
    Not Stated....................................  .........       n.a.
        Total Reported............................     12,421      100.0
------------------------------------------------------------------------
\1\All reported, includes 26 Kansas resident abortions that occurred out-
  of-state.
\2\Occurrence data.
\3\Patient(s) refused to provide information.
 
Source: KDHE, Center for Health and Environmental Statistics, Office of
  Health Care Information.

                 ``Partial Birth'' Procedure Statistics

       Physicians reporting ``partial birth'' abortions were 
     required to fill out three numbered questions on the back of 
     the VS-213 form. Those questions and the answers are provided 
     below for Kansas and out-of-state residents. The questions 
     would be in addition to those filled out if gestation was 22 
     weeks or more. All data are occurrence. The data represent a 
     full year of reporting. A sample VS-213 form is in the 
     appendices.
       Number of ``partial birth'' procedures:

------------------------------------------------------------------------
                                                     Out-of-
              Time period                    KS       state      Total
                                         residents  residents
------------------------------------------------------------------------
January 1-March 31.....................          2         65         67
April 1-June 30........................          2         60         62
July 1-September 30....................          3         50         53
October 1-December 31..................          -          -          -
      Total............................          7        175        182
------------------------------------------------------------------------

       17a) For terminations where ``partial birth'' procedure was 
     performed, was fetus viable?

------------------------------------------------------------------------
                                                     Out-of-
                Answers                      KS       state      Total
                                         residents  residents
------------------------------------------------------------------------
Yes....................................          7        175        182
      Total............................          7        175        182
------------------------------------------------------------------------

       17b) Reasons for determination of fetus viability:

------------------------------------------------------------------------
                                                     Out-of-
                Answers                      KS       state      Total
                                         residents  residents
------------------------------------------------------------------------
It is the professional judgement of the          -          -          -
 attending physician that there is a
 reasonable probability that this
 pregnancy is not viable...............
It is the professional judgement of the          7        175        182
 attending physician that there is a
 reasonable probability that this
 pregnancy may be viable...............
        Total..........................          7        175        182
------------------------------------------------------------------------

       18a) Was this abortion necessary to:

------------------------------------------------------------------------
                                                     Out-of-
                Answers                      KS       state      Total
                                         residents  residents
------------------------------------------------------------------------
Prevent patient's death................          -          -          -
Prevent substantial and irreversible             7        175        182
 impairment of a major bodily function.
        Total..........................          7        175        182
------------------------------------------------------------------------

       18a) If the abortion was necessary to prevent substantial 
     and irreversible impairment of a major bodily function, was 
     the impairment:

------------------------------------------------------------------------
                                                     Out-of-
                Answers                      KS       state      Total
                                         residents  residents
------------------------------------------------------------------------
Physical...............................          -          -          -
Mental.................................          7        175        182
        Total..........................          7        175        182
------------------------------------------------------------------------

       18b) Reasons for Determination of 18a:

------------------------------------------------------------------------
                                                     Out-of-
                Answers                      KS       state      Total
                                         residents  residents
------------------------------------------------------------------------
Based on the patient's history and               7        175        182
 physical examination by the attending
 physican and referral and consultation
 by an unassociated physician, the
 attending physician believes that
 continuing the pregnancy will
 constitute a substantial and
 irreversible impairment of the
 patient's mental function.............
        Total..........................          7        175        182
------------------------------------------------------------------------

  Mr. BROWNBACK. I would just note, in citing this statistic, it has 
been cited previously, the statistical year we have available to us, 
182 partial-birth abortions were done and reported within the State of 
Kansas. Of those, when they asked if the abortion was necessary to 
prevent substantial and irreversible impairment of a major bodily 
function, was the impairment physical or mental, they were asking, are 
you asking for this abortion, this partial-birth abortion to be done 
for physical reasons or for mental reasons, all 182 partial-birth 
abortions done in Kansas this year were for mental reasons. Zero were 
for physical reasons. The doctors conducting these, the patients doing 
it, said this is all for a mental reason.
  The notion that some have put forward that there is not another 
physical option, that you are jeopardizing the physical health of the 
mother, the life of the mother by banning a partial-birth abortion 
procedure is certainly not borne out by the statistics in my State. You 
would think there should be at least one, maybe five that were for 
physical reasons of the mother. In our instance, in Kansas, where we 
require by law that partial-birth abortion be reported, and the 
reasoning, zero were for physical reasons. These were all for mental 
reasons that were put forward. I would hope we could put to rest the 
debate point about we have to maintain this procedure for the life of 
the mother, the health of the mother. Our experience in the State is 
that is simply not the reason. I am delighted to be able to provide 
that to my colleagues for the Record.
  Regardless of your view overall on abortion, to have this grisly 
practice of partial birth continuing is something we should not have 
taking place. It is something we don't need to take place, and it does 
lead to a more callous society. That is the point I want to discuss, 
its overall impact on society. I hope we can step back a moment and 
philosophize a bit about what it does.
  Aside from partial-birth abortion, it has become increasingly clear 
that the impact abortion has had on society is in itself profound. I am 
quite convinced the widespread acceptance of this brutal practice has 
already significantly coarsened public attitudes toward human life in 
general, particularly toward the most vulnerable in society, whether 
they are unborn or old or infirm. This coarsening of public attitude 
over the past several years has made other assaults against the dignity 
of humans and human life more acceptable and more accessible.
  It is one of those slopes that you start down. If you say as a 
society, partial-birth abortion, we really don't like it that much but 
we will go ahead and let it take place, when you say it from a large 
legislative body such as this one, the Senate, the House of 
Representatives, to say we really don't care for it but we will let it 
take place, and we know what this procedure is and we know most of it, 
if not all of it, is on a choice basis of a mental concept, it is not 
on physical consequence for the mother, we know most of this is about a 
mental choice on the mother's part, and yet we are going to let this 
continue, what message does that send overall to society? What does it 
say to the country? What does it say to the world?
  Does it make other assaults on human dignity possible? Euthanasia; 
assisted suicide; let's do embryo research; now let's clone human 
beings. We continue to move upon that path of saying the human being is 
not sacred; it is not precious; it is another entity; and we can 
countenance that such coarseness takes place, and it continues to move 
us on down that road.
  Mother Teresa was quoted as once saying that ``if we can accept that 
a mother can kill her own child, how can we tell other people not to 
kill one another?''
  That is a really good question she was asking. If we accept that a 
mother would do this, particularly a partial-birth abortion procedure, 
how can we tell other people not to kill one another?
  We all have a duty, an obligation, as citizens of the United States 
to stand up against such a moral outrage as partial-birth abortion. 
Human life is sacred. It is a precious gift. Human life is not 
something to be disposed of by those with more power. One of the most 
extreme assaults against human dignity is made against some of the most 
innocent among us, whether from the first moments of life to the 
moments just before birth, a child continues in that point to be a 
precious and unique gift, a gift never to be given or to be created 
again. It is given once. That is it. It seems therefore that in some 
measure this debate is about whether or not that child prior to birth 
is a child at all. Is this young human a person? Is it a child or is it 
a mere piece of property?
  Some who support partial-birth abortion will argue this young human 
is not a person and can therefore be disposed of as property, as need 
sees. To me, this would be a ghastly concept. Elizabeth Cady Stanton, a 
lady whose statue is in this building, one of the

[[Page 5717]]

women depicted in the portrait monument, foresaw this awful view of 
humanity, of human life. She wrote a letter to Julia Ward Howe in 
October of 1873 and said:

       When we consider that women are treated as property, it is 
     degrading to women that we should treat our children as 
     property to be disposed of as we see fit.

  That is a quote from 1873. The Congress must speak out against this 
atrocity. We must speak out against this degradation of human life. 
These are life issues of enormous consequence, and they are issues by 
which history will rightly judge us.
  I thank those who have brought the debate forward. I know everybody 
who has entered into it does so with deep convictions, deep desires to 
do what is right. I hope we would back up as a society and ask 
ourselves, what coarsening does this do to us; what message is this 
sending, and what are we really saying about that young human life? Is 
it a person or is it a piece of property? It is one or the other in our 
jurisprudence, it has to be. Everything in this building right now, 
everything in this country is either a person or a piece of property. I 
am a person; my clothes are property. The building is property. The 
people in here are personages. What is the young human? We have had 
this debate before. We really need to consider that that is a child. It 
is a gift.
  I want to quote one more time Mother Teresa and her concern on this 
particular issue and this particular issue of abortion itself. I don't 
think anybody could question her bona fides for being willing to take 
care of the weakest and the poorest in society and in the culture 
overall and her willingness to work and her work being carried on of 
taking care of the most vulnerable in society. She said this one time 
about the whole issue of abortion. She spoke very passionately, clearly 
about this topic. She said:

       Many are concerned with the children of India, with the 
     children of Africa where quite a few die of hunger and so on. 
     Many people are also concerned about the violence in this 
     great country of the United States. These concerns are very 
     good. But often these same people are not concerned with the 
     millions being killed by the deliberate decision of their own 
     mothers. And this is the greatest destroyer of peace today--
     abortion which brings people to such blindness.

  We are confronted with an issue that is difficult and has been in 
front of us before. We have a chance for the first time in a number of 
years to limit a particular ghastly abortion procedure. It has been 
adequately described over and over. This is the time. This is the 
place. This is the moment for the Senate to pass this bill, to pass it 
without amendment, to get it on through to the House and to the 
President, who will sign it into law. We can do something that really 
will send a right signal to society, a right signal overall to the 
culture, away from the coarsening and towards a life that does support 
a culture of life and not one of death.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mrs. MURRAY. How much time do we have remaining?
  The PRESIDING OFFICER. The Senator from Washington has 19 minutes and 
43 seconds remaining.
  Mr. KYL. I would like to take 20 seconds.
  Mrs. MURRAY. Off of your time, I would be happy.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. I wanted to compliment the Senator from Kansas for his 
leadership on this issue, as well as the Senator from Pennsylvania for 
his leadership. While they have done the bulk of the discussion on this 
issue, they represent a lot of us who feel just as strongly about the 
issue. I want them to know how much those of us who haven't spoken 
appreciate their leadership in proposing this legislation.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Madam President, I yield 5 minutes to the Senator from 
California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Madam President, I want to take 5 minutes to thank my 
friend from Washington, Senator Murray, for her extraordinary 
leadership on women's health. The fact that this amendment is being 
debated is very encouraging to me, because when people stand up and say 
we want to prohibit a procedure that doctors tell us, OB/GYNs tell us 
is absolutely necessary in some cases in order for a woman to have her 
life saved or her health preserved, that is not something we should be 
doing here. We are not physicians; we are Senators.
  What we would be doing is making sure that every woman in this 
country, when faced with a very difficult life-threatening or a health-
threatening pregnancy can make decisions based on the best advice that 
she can get, the best science, because if we look at these families--
and I have been showing these portraits of real women. This is a woman 
who, in her own words, said, ``I am a conservative pro-life 
Christian.'' Those are her words. She said, ``Abortion, to me, is 
something unthinkable.'' Yet she said in her own words, far more 
eloquent than mine, that had she not been able to have the procedure 
that my colleagues on the other side of the aisle want to ban, she 
might not have been able to bear another child. In fact, the possible 
health impacts of her not being able to have the procedure have been 
spelled out by physicians.
  I am so happy to see my friend from Illinois in the Chamber because 
he is going to be offering an amendment to make sure that if this bad 
law moves forward, there is an exception, so that women won't 
hemorrhage, won't have uteruses rupture, won't suffer blood clots, 
won't have embolism or strokes, or won't suffer damage to nearby organs 
or have paralysis. Can you imagine us doing something that could lead 
to a woman--like this beautiful woman and the others I have talked 
about having to suffer one of those consequences--being ripped away 
from her family?
  Mr. DURBIN. Will the Senator yield for a question?
  Mrs. BOXER. I am happy to yield.
  Mr. DURBIN. We had a conversation on the floor about another woman 
whose photograph is here, whom I met, Vikki Stella, from my home State 
of Illinois. We talked about the complications she faced. It was 
interesting to me that as I told her tragic story--I wonder if the 
Senator from California is aware of the fact--the Senator from 
Pennsylvania took the floor and said that, in his opinion, she did not 
face a medical crisis in her pregnancy. I wonder if the Senator from 
Pennsylvania or the Senator from California are aware of the fact that 
at 32 weeks in her pregnancy an ultrasound disclosed that her son had 
nine major anomalies, including a fluid-filled cranium with no brain 
tissue at all; compacted, flattened congenital hip dysplasia; and 
skeletal dysplasia; and hypertoloric eyes, and he would never have 
survived outside the womb.
  I wonder if the Senator believes it is within our purview, within our 
authority and knowledge, to judge that that terrible outcome in a 
pregnancy was not a medical crisis.
  Mrs. BOXER. My friend has put it in a very stark way--that what is 
happening in this Chamber, and as my friend, Senator Murray, has 
eloquently pointed out, as we are amassed to go to war in Iraq, as we 
have a building crisis in North Korea, as we have the worst economy I 
have seen in decades, what is on this floor is banning a procedure that 
your constituent--is she yours?
  Mr. DURBIN. Yes.
  Mrs. BOXER. That your constituent needed in order to spare her son 
horrific health consequences. And the fact that somebody would say that 
is not a crisis, when you have described the status of this pregnancy, 
is stunning to me. I know people around here have big egos. I don't 
doubt that. We all have----
  The PRESIDING OFFICER. The Senator has used 5 minutes.
  Mrs. BOXER. I ask for an additional 3 minutes.
  Mrs. MURRAY. I yield an additional 3 minutes to the Senator from 
California.
  Mrs. BOXER. I know that most politicians--and we are all included--
think we really know a lot, and we are really

[[Page 5718]]

pretty smart, and we have to work hard at our jobs, and we feel 
confident and comfortable in our work, but when we start doing things 
such as this--outlawing a medical procedure that OB/GYNs tell us is 
necessary to preserve the health of a woman, and when we start telling 
women such as this woman here, and others I have shown, that they don't 
know what they are talking about, they were not in crisis, this isn't 
an emergency--I actually heard someone on the floor today say this 
isn't an emergency situation if it takes 3 days.
  Well, let me tell you, it may take 3 days because of these 
complications that we are talking about. These are very complicated, 
difficult situations that are delicate. If it takes 3 days, it is 
because it is delicate.
  I have to say, if we wind up banning this procedure--which, by the 
way, the way the bill as written is unconstitutional because the 
lawyers who have fought the previous case said it is legally identical 
to the case that the Supreme Court said was unconstitutional--and it is 
upheld because of a change in the Court, or whatever, we are going to 
find some tragedies that we are going to bring to the floor.
  I don't want to see that day come. Doctors take an oath to do no 
harm. I wish we can take that same oath to do no harm. Roe v. Wade was 
a very important decision. It said in the first few months of a 
pregnancy, before viability, a woman has a right to choose what she 
wants to do with the pregnancy. That is Roe. After viability, we all 
support restrictions--but always with an exception for the life or the 
health of the mother.
  This bill is so radical, it has no exception for health. The women I 
have brought to you have told me they could have suffered any one of 
these on this list of problems. How we can stand here on the floor, 
when physicians are telling us these are the problems--the hemorrhages, 
blood clots, strokes, paralysis--that could result If this particular 
method is banned, it seems to me we are doing harm. We are doing harm 
to the women of this country.
  I would like to see us finish this bill. I would like to see these 
amendments pass. Senator Murray's amendment is so important. They are 
so important because what they will do if they pass and are signed into 
law is make abortion rare because it is talked about in every aspect of 
contraception being available to women. That is what we ought to be 
doing so we don't have to have this debate on abortion.
  The PRESIDING OFFICER. The Senator has used her time.
  Mrs. BOXER. I yield the floor at this time.
  Mr. SANTORUM. Madam President, I ask the Senator from California 
this. She keeps making the statement and I want to make sure I give her 
an opportunity to substantiate this statement. The statement is made 
repeatedly that obstetricians and gynecologists around the country are 
saying that this is medically necessary to preserve the health of the 
mother.
  Has one of those obstetricians or gynecologists submitted a 
circumstance by which this would be the case? And where have they said 
this is the case? I am asking. If the Senator from California is going 
to make a statement that obstetricians believe this is medically 
necessary to preserve the health of a mother, substantiate the 
statement.
  For 7 years I have asked this question. Seven years. It has been 
asked at hearings and in a variety of different forums. I understand 
why the OB/GYN association opposes this ban because they do not like 
anything that criminalizes their behavior. I understand that. I am sure 
anybody who does behavior outside the bounds of morality and, 
therefore, potentially criminal, would like laws that do not stop them 
from doing what they want to do. I understand why people do not want 
constraints on their actions, but we have laws because we believe there 
are certain actions that are so morally reprehensible that we want to 
prohibit them and at which we want consequences directed.
  Mrs. BOXER. Will the Senator yield for an answer to the question?
  Mr. SANTORUM. I ask the question, as I have repeatedly: Provide for 
me an instance, a circumstance, a medical situation in which this 
procedure would be necessary to preserve the health of the mother. That 
is what I am asking. Give me a circumstance where this would be 
necessary and there would be no other procedures available. Give me a 
circumstance where this would be the best procedure.
  Mrs. BOXER. I assume I am answering on my friend's time.
  Mr. SANTORUM. If you can answer the question.
  Mrs. BOXER. Yes, I would like to submit for the Record a letter from 
the University of California, San Francisco, Dr. Felicia Stewart, in 
which she says very clearly that this bill:

       . . . fails to protect women's health by omitting an 
     exception for women's health; it menaces medical practice 
     with the threat of criminal prosecution; it encompasses a 
     range of abortion procedures; and it leaves women in need of 
     second trimester abortions with far less safe medical 
     options: hysterotomy and hysterectomy.
       The proposed ban would potentially encompass several 
     abortion methods.

  She goes on:

       If the safest medical procedures are not available to 
     terminate a pregnancy, severe adverse health consequences are 
     possible for some women who have underlying medical 
     conditions.

  And she says here is what happened to them: Death, infertility, 
paralysis----
  Mr. SANTORUM. Reclaiming my time.
  Mrs. BOXER. Coma, stroke, hemorrhage, brain damage, infection, liver 
damage, and kidney damage.
  The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
  Mr. SANTORUM. Madam President, with all due respect to the Senator 
from California, she has not answered my question. That letter does not 
answer my question. I have asked not what could happen if abortions are 
not available. What I have asked is for a specific medical circumstance 
that someone can provide me where this procedure would be necessary to 
save the health of the mother.
  In 7 years of asking that question, I have not gotten an answer. I 
think that is significant, that if this is so important, if Members of 
the Senate are going to come here and say this is medically necessary 
to protect the health of the mother, then they have to have evidence to 
support that statement. Saying that this limits options and saying 
potentially it could have adverse--give me a circumstance, give me a 
case.
  The reason that no cases have been brought forward is because we have 
overwhelming testimony, dispositive testimony from physicians all 
across this country who say that it is never medically necessary, 
including the American Medical Association, which says this is a bad 
practice.
  Take the cases that are being presented today. Vikki Stella. Did I 
say the pregnancy was not a crisis in the sense the child had multiple 
birth defects? Is that a crisis pregnancy? Of course it is in the sense 
that the child does not have a chance or very much of a chance to 
survive long after birth. But that is not what I said. What I said was 
it was not a medical crisis for the mother, and there is no evidence 
the mother was in any physical danger. I have gone through this 
personally as----
  Mr. DURBIN. Will the Senator yield?
  Mr. SANTORUM. Let me finish, and I will be happy to yield as I have 
continually. The fact that a child in utero is going through a crisis 
does not equate that the mother is going through a health crisis. There 
are lots of mothers of babies with multiple defects who carry that 
child to term or do things to try to help that child in utero survive. 
One does not equate to the other.
  The case of Vikki Stella--and I am just reporting--I understand the 
fact she was carrying a child with multiple disabilities. My heart 
grieves for her and for all women who have to go through such difficult 
pregnancies. It is horrible to find out that a child you want may not 
live long after birth. It is as compelling a story as you can present 
to me. The point is, the answer does not have to be the death of the 
child.

[[Page 5719]]


  Mr. DURBIN. Will the Senator yield for a question?
  Mr. SANTORUM. I will be happy to yield for a question.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. SANTORUM. Without losing my right to the floor.
  Mr. DURBIN. The Senator is an accomplished legislator. He is an 
accomplished lawyer with good background and understanding, but he is 
not a medical doctor. In this case, her medical doctor said because of 
her diabetic condition and complications that the fetus she was 
carrying could not survive outside the womb, if she had a C-section to 
deliver this child, it would have put her life and health at risk. The 
Senator from Pennsylvania comes to the floor and says: No, I understand 
it better. I can make a better diagnosis. She was not at risk.
  Mr. SANTORUM. I reclaim my time.
  Mr. DURBIN. How can the Senator stand here and make a medical 
judgment on a person he has never seen?
  The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
  Mr. SANTORUM. One, you make it sound like the doctor who diagnosed 
the fetal abnormality was the one who performed the abortion. In fact--
I am reading her story--the diagnosis was made by a perinatologist and 
the abortion was performed by an abortionist in a clinic, not the same 
person.
  Mr. DURBIN. What is the point?
  Mr. SANTORUM. The point is that this is not done in hospitals. This 
is done in abortion clinics. This is not a procedure that was developed 
to protect the health of the mother. This was a procedure that was 
developed so the abortionist could do multiple abortions and do more of 
them at the same time.
  The case we are laying out here--and by the way, we are arguing a 
case of where you have a fetal abnormality which, by the way, is less 
than 1 percent of the abortions that are performed.
  Mr. DURBIN. Does the Senator make that exception in his bill?
  Mr. SANTORUM. Excuse me, there need not be an exception, but you are 
arguing these compelling cases and they are compelling because they are 
talking about women going through very difficult decisions, but there 
is no medical reason to do this procedure. There are other procedures 
available and safer. There are better procedures for abortion 
available. I am not talking about C-sections, but other abortion 
procedures that are better.
  Mr. DURBIN. Will the Senator please tell me what procedure would have 
been better for Vikki Stella?
  Mr. SANTORUM. Look, this procedure is not done in hospitals. So all I 
suggest is there are other safer, peer-reviewed procedures that can and 
are used on a routine basis by a physician----
  Mr. DURBIN. Will the Senator please tell me, since he said it was not 
a medical crisis, and she did not need this procedure----
  Mr. SANTORUM.--which is a standard D&E, which is the most common 
late-term abortion performed at hospitals, taught in medical school, 
and peer reviewed. This is not Rick Santorum talking. This is not the 
Senator from Tennessee talking. This is a variety of obstetricians.
  The point is, they are giving a reason for keeping this procedure 
legal that is a red herring. This procedure is not taught in hospitals. 
It is not performed in hospitals. It is not done by advanced 
perinatologists who run into difficult pregnancies. Why? Because it is 
not safe. Why? Because there are better methods.
  What we are trying to do here is protect women's health. We hear so 
much passion here about protecting women's health. We have a procedure 
that has been demonstrably proven is dangerous to women's health; that 
there are other procedures that are safer.
  Why are we not concerned about women's health when we want to keep a 
procedure legal that is unsafe? Are we really concerned about women's 
health, or are we really concerned about eroding, chipping ever so 
slightly at this oracle of abortion in America? This is trying to stop 
something that is unsafe for women, that is obviously brutal for 
children, and is simply not necessary to protect the health of a woman.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time? The Senator from Washington.
  Mrs. MURRAY. Madam President, I think this discussion shows exactly 
why this Senate should agree on the women's health amendment that is 
now before this body and that we will vote on in a few minutes.
  Senator Reid and I have said that the goal of all of us should be to 
reduce the number of unintended pregnancies so that this issue that is 
being debated does not have to be debated on the floor of the Senate; 
that this issue should be decided between a women and her doctor, her 
family and her faith.
  I commend Senator Reid for working with me on this very important 
amendment, and I yield 8 minutes of my remaining time to Senator Reid.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, this amendment is to end insurance 
discrimination against women and improve awareness and understanding of 
emergency contraception, ensure that rape victims have information 
about and access to emergency contraception, and promote healthy 
pregnancies of babies by allowing States to expand coverage for 
prenatal and postpartum care. That is what this amendment is.
  The debate that has been going on in the last few minutes has nothing 
to do with the amendment offered by the Senators from Washington and 
Nevada.
  As I mentioned earlier today, the abortion debate has been a divisive 
one for our Nation for many years. We recognize the issue is not going 
to go away soon, but there is a need--and I thought we had an 
opportunity, and I hope we still do--to find common ground and to take 
steps toward a goal I hope we all share: Reducing the number of 
unintended pregnancies in America and reducing the number of abortions.
  We put forth a good-faith effort to find common ground by offering 
commonsense solutions in our amendment. Instead of giving serious 
consideration to our amendment that would improve access to 
contraception and improve access to care for pregnant women, the other 
side has instead chosen to hide behind a technicality. That is what it 
is. If my friends on the other side of the aisle were serious about 
improving women's health, serious about improving access to 
contraception, and serious about reducing unintended pregnancies, they 
would not dismiss this amendment on a technicality.
  When the Bush administration decided it would allow a fetus to be 
covered through the SCHIP program but it was all right to exclude the 
mother from coverage, we did not have the opportunity to dismiss this 
shameful and absurd regulation on a technicality. As a result, we are 
missing the opportunity to provide critical health care coverage for 
low-income women and their babies.
  The sad irony of tonight's vote is that the measures contained in our 
amendment would actually save the country money. In fact, as the 
Washington Business Group on Health has found in its report ``Business, 
Babies and the Bottom Line,'' more than $6 of neonatal intensive care 
costs could be saved for every $1 spent on prenatal care, and low-
birth-weight babies are 64 percent more likely to attend special 
education classes than normal-birth-weight babies. That is why the 
neonatologists came to see me, as I reported earlier today. They want 
women who have not had the opportunity to have prenatal care to have 
prenatal care. It saves the Government money.
  Furthermore, an Agency for Health Care Research and Quality report 
has found 4 of the top 10 most expensive conditions in the hospital are 
related to care of infants with complications, respiratory diseases, 
prematurity, health defects, and lack of oxygen. All of these 
conditions can be improved and, in most cases, eliminated through 
quality prenatal care.
  The same holds true for EPICC legislation that would improve access 
to contraception by requiring insurance plans which provide coverage 
for prescription drugs to provide the same

[[Page 5720]]

coverage for prescription contraceptives.
  The Washington Business Group on Health estimates that not covering 
contraceptives in employee health plans would cost 17 percent more than 
providing the coverage. It is a loser to vote against this amendment. 
If my colleagues are concerned about money--and that is what this 
technicality is all about--then vote with us because we are going to 
save the State, local, and Federal Governments money.
  The Federal Employee Health Benefits Program, which has provided 
contraceptive coverage for several years now as the result of an 
amendment made on this floor, shows that adding such coverage does not 
make the plan more expensive.
  This vote is not about money. If the other side were serious about 
improving women's health, serious about improving access to 
contraception, and serious about reducing unintended pregnancies, they 
would not dismiss this amendment on a technicality.
  I hope people will vote their conscience, the conscience to help 
women have healthy babies.
  Mrs. LINCOLN. Madam President, I support the prevention package 
amendment offered today by Senators Murray and Reid to reduce the high 
rates of unintended pregnancy in our country as well as improve access 
to prenatal and postpartum care for pregnant women.
  I urge my colleagues to support this commonsense approach to the 
health of women and their babies. If Senators really want to make our 
country a better place for babies, women, and their families, they 
should support this amendment.
  Half of the 4 million pregnancies that occur in the United States 
every year are unintended. This amendment seeks to curb that trend by 
helping women better plan their pregnancies, improving knowledge of and 
access to contraception, and expanding insurance coverage for prenatal 
and postpartum care. If the provisions in this amendment were already 
law, I sincerely believe we wouldn't be here debating the underlying 
bill.
  A recent report showed that abortion rates are at their lowest level 
since 1974. Most of this decline is attributed to women becoming better 
educated about how to care for their bodies. We are gaining greater 
access to safe contraceptive measures. That is the good news.
  However, while there was an overall decline in abortion rates, the 
abortion rate among women of lower economic status actually rose. These 
women face greater barriers to contraception. To really reduce 
abortions in our country, we need to ensure that all women--poor and 
wealthy--have access to affordable and timely contraceptives.
  This prevention amendment makes significant progress towards that 
goal. First, the amendment makes contraception more affordable for 
privately insured women, an important provision based on bipartisan 
legislation introduced by Senators Snowe and Reid. This provision 
establishes parity for prescription contraception by requiring private 
health plans to cover FDA-approved prescription contraceptives and 
related medical services to the same extent that they cover 
prescription drugs and other outpatient medical services. By making 
contraception affordable for working women and families, this provision 
takes a positive step forward in the effort to reduce abortions in our 
country.
  Second, this amendment seeks to make women and health care providers 
more aware of emergency contraception, which is really just a specified 
dose of standard birth control pills that can be taken up to 72 hours 
after unprotected sex. Despite the potential for emergency 
contraception to drastically reduce unintended pregnancies and the need 
for abortion, it is underutilized and misunderstood. This amendment 
seeks to correct that. Emergency contraception is FDA-approved to be a 
safe and effective form of contraception, and it is often the only 
contraception option for women who have been raped.
  Of the 300,000 women in our country who report rapes every year, 
25,000 of them become pregnant. Women who have been raped deserve to be 
given information about emergency contraception when they seek medical 
help following their sexual assault. Rapes can happen at any time, day 
or night. Oftentimes, women are treated in hospital emergency rooms. 
This amendment also ensures that hospitals counsel raped women about 
their risk of pregnancy and offer them emergency contraception as an 
option. This policy is in line with emergency care standards 
established by the American Medical Association and could significantly 
reduce future abortions.
  Lastly, I am glad that this amendment gives States the option of 
covering pregnant women in their Children's Health Insurance Programs. 
Based on bipartisan legislation we passed unanimously in the Finance 
Committee last summer, this bill allows coverage for prenatal care, 
delivery, and postpartum care. This provision could drastically improve 
the lives and health of thousands of women and children throughout our 
Nation.
  The infant and maternal mortality statistics in this great country of 
ours are shocking. According to the Centers for Disease Control and 
Prevention, the United States ranks 28th in the world in infant 
mortality. We rank behind countries like Cuba and the Czech Republic. 
It is amazing to me that the United States lags far behind these 
nations in this area. Another shocking statistic from the CDC is that 
the United States ranks 21st in the world in maternal mortality. The 
World Health Organization estimates that the U.S. maternal mortality 
rate is double that of Canada.
  When we are ahead of every other nation in almost every other arena, 
I am deeply saddened that we have not taken a course of action that 
would prove to the rest of the world that we truly do value life in 
this country, and that we want to do all we possibly can to ensure the 
healthy delivery of children, as well as the health of their mothers.
  The fact is, we know how to address this problem. The solution lies 
in prenatal and postpartum care. Studies have shown that this care 
significantly reduces infant mortality, maternal mortality, and the 
number of low-birthweight babies. Prenatal care is also cost-effective. 
For every dollar we spend on prenatal care, we save more than 6 dollars 
in neonatal intensive care costs. Pre-term births are one of the most 
expensive reasons for a hospital stay in the United States.
  I cannot emphasize enough the great opportunity we have here in the 
Senate to drastically improve the lives and health of women and babies 
in our country. We must allow States to cover pregnant women under 
SCHIP--the States want to do it, and the Federal government should give 
them the option.
  I do not understand why anyone would stand in the way of common 
sense, practical solutions like the ones offered in this amendment. If 
my colleagues are serious in their quest to reduce abortions, they will 
support this amendment. Instead of debating the same bill we did 5 
years ago--a bill that will ultimately be decided by the courts--let's 
do something proactive for our Nation's most vulnerable women and 
families. I urge all my colleagues to support this amendment today.
  Mr. GRASSLEY. Madam President, I am aware that an amendment has been 
offered to the Partial-Birth Abortion Ban Act of 2003 that would 
provide coverage through the State Children's Health Insurance Program 
(S-CHIP) to pregnant women.
  The amendment is similar to a bill that passed out of the Finance 
Committee last July. The bill providing health care to low-income 
pregnant women was never enacted in the 107th Congress. I support 
caring for low-income mothers and their unborn children. It is sound 
health policy.
  It is a new Congress, and unfortunately, I can't support this 
amendment. This policy has not been properly debated in the 108th 
Congress.
  Policies that alter our Nation's safety net programs deserve the 
Senate's proper attention. We must address policy changes to the safety 
net through

[[Page 5721]]

regular order. By accepting this amendment, we are not allowing for 
this process to work.
  Earlier this year, I worked with Senator Nickles, Senator Snowe and 
others to setup a process to address the need to redistribute unspent 
S-CHIP funds. Together we have set up a solid process to address S-CHIP 
redistribution through regular order.
  I assure my colleagues that, as Chairman of the Finance Committee, I 
am willing to address pertinent S-CHIP issues in the near future and 
discuss the possibility of extending S-CHIP coverage to pregnant women.
  Ms. MIKULSKI. Madam President, I rise in strong support of the 
Murray-Reid amendment. This amendment protects women's health. It makes 
abortions more rare--not more dangerous. It tries to find common 
ground.
  I acknowledge the seriousness of this debate. My colleagues have 
raised troubling ethical issues about these grim and ghoulish 
procedures. But there are other equally troubling ethical issues at 
stake about who should decide how best to protect a women's health.
  Proponents of the Santorum bill that we are debating deny that their 
legislation will have any consequences for women's health. They are 
wrong.
  Denying women access to the abortion that could save their life and 
physical health is unconscionable--and unconstitutional.
  A pregnant woman facing the most dire circumstances must be able to 
count on her doctor to do what is medically necessary to protect her 
from serious physical harm.
  I want every woman who hears this debate to know: I am on your side. 
I will fight to protect your health.
  That is why I am proud to support this amendment. It builds on my two 
decades of advocacy--to protect women's health, to give women access to 
appropriate medical treatments, and to make sure women are treated 
fairly and equally under the law.
  When I was still a Congresswoman on the House side, there was study 
after study on how women were not included in the clinical trials at 
the National Institutes of Health (NIH).
  Studies were being done with men only. One study examined whether 
aspirin decreases cardiovascular deaths on 22,000 men. A study on heart 
disease risk factors was conducted on 13,000 men--and not one woman. 
But the results of these studies were applied to both men and women.
  What did this mean for women? Millions of men benefited from a study 
that found taking aspirin reduced their incidence of heart attacks. But 
since women weren't included in the clinical trial, we didn't know 
whether it would hurt us, help us, or have no effect.
  This policy was unfair. It was harming women.
  So one day, I called up Pat Schroeder, Connie Morella, and Olympia 
Snowe. We decided to go to NIH--to light a fire so they would take 
action.
  It was a hot day in August. We pulled up in our cars, up to the curb 
at the front door of NIH. They knew we were there, they knew we were 
serious. They knew we were going to have a Seneca Falls on NIH if 
necessary. True story and the rest is history.
  Within 1 month after that, working with Ted Kennedy, Tom Harkin and 
the women of the House, there was an Office of Women's Health at NIH. 
NIH finally moved and I moved Congress.
  We mow know that men and women often have different symptoms before a 
heart attack. We know that men and women have biological differences 
that must be studied and understood so women's symptoms can be 
recognized and treatments can be developed that are effective for both 
women and men.
  Including women in clinical trials and making sure investments in 
biomedical research benefit men and women equally is about basic 
fairness.
  This amendment is also about fairness. It includes the Equity in 
Prescription Insurance and Contraceptive Coverage Act (EPICC). EPICC 
requires health plans that cover prescription drugs to provide the same 
coverage for prescription contraceptives. 98 percent of workers with 
health insurance have prescription drugs benefits,but only 64 percent 
of workers have plans that cover birth control pills. Only 40 percent 
of workers have plans that cover all forms of contraceptives.
  When health plans cover other prescription drugs but exclude the 
drugs that only women take, it is gender discrimination. It is wrong.
  The Equal Employment Opportunity Commission (EEOC) agreed. I chaired 
a hearing of the Health, Education, Labor, and Pensions Committee on 
this legislation. The Committee heard testimony from Jennifer Erickson, 
a 28-year-old pharmacist from Seattle. Jennifer used this EEOC decision 
to take her employer to court. She won.
  This was a landmark victory for women. But women should not have to 
sue their employers to get their health plans to treat them fairly.
  That is why I am such a strong supporter of this legislation. EPICC 
protects every woman from illegal gender discrimination. It reaffirms 
our commitment to basic fairness for women under the law. It leaves 
medical decisions in the hands of women and their doctors--not 
legislators, and not insurance company bureaucrats. It expands access 
to contraceptives that help prevent unwanted pregnancies.
  EPICC also builds on past successes. In 1998, I worked with Senators 
Snowe and Reid to require Federal Employee Health Benefit Plans that 
covered other prescription drugs to also cover prescription 
contraceptives. I have stood sentry in the Appropriations Committee to 
keep this promise to Federal employees.
  Contraceptive equity for Federal employees was a downpayment. It 
created a model for employers--and other States--to follow, like my own 
state of Maryland. Maryland was the first state to pass a contraceptive 
equity law.
  This legislation will make the final payment--so every woman can 
count on her health plan to treat her fairly and to cover her basic 
medical care.
  This amendment also expands access to medical treatment for women by 
giving women who have been raped access to emergency contraceptives, 
and giving low-income pregnant women health insurance through the 
Children's Health Insurance Program.
  The Murray-Reid amendment builds on past efforts to make sure every 
woman has access to the medical care she deserves. In 1990, I fought to 
make sure low-income women could get screened for breast and cervical 
cancer. Since this screening program started, over 1.5 women have been 
screened, more than 9,000 breast cancers have been diagnosed, and over 
48,000 precancerous cervical lesions have been detected.
  This screening program was a good start--but it left a serious gap. 
The program paid for women to get screened, but it did not pay the 
costs of treatment for women who were diagnosed with breast and 
cervical cancer through the program. Women were left to fend for 
themselves or rely on volunteers to provide free or reduced-cost 
treatment. I fought to change that.
  In 2000--after years of effort--Senator John Chafee and I passed a 
law to give women who were diagnosed with breast and cervical cancer 
through this program access to the medical treatment they needed.
  Let's continue to build on these efforts to make sure every woman has 
access to quality health care. Millions of Americans do not have access 
to health care, because they cannot afford health insurance. There are 
267,000 women in Maryland without health insurance, 11 percent of 
Maryland women under age 65.
  The Murray-Reid amendment will expand health insurance coverage. It 
includes legislation that I strongly support that allows states to 
expand their children's health insurance program to give pregnant women 
earning less than $17,000 a year access to the health care they need.
  This amendment sends a message to women. I am on your side. I will 
fight to protect your health. I will fight to make sure you get treated 
fairly. I urge you to support it.
  I am also here in support of the Murray-Reid amendment because it 
sends a message about the importance of prevention. This amendment will 
help prevent unwanted pregnancies--by expanding access to 
contraceptives through fair, equitable insurance coverage, guaranteeing 
that women who

[[Page 5722]]

have been raped can get emergency contraceptives (ECs), and getting 
information to women and their doctors about ECs. It will prevent 
abortions.
  Unlike this amendment, the Santorum bill that we are debating does 
not prevent a single abortion. It prohibits certain abortion 
procedures, but allows doctors to use other procedures in its place. 
The Santorum bill directs doctors to use other procedures that may be 
more dangerous to women. It is a hollow and ineffective approach.
  Improving access to contraceptives makes sense. This amendment makes 
abortions more rare, not more dangerous.
  Preventing unwanted pregnancies in the first place is something we 
can all agree on. People of good conscience and good will disagree on 
some of these difficult issues. I support commonsense ways to find 
middle ground. The Durbin amendment I will support is a commonsense 
approach to prohibit late-term abortions and protect women's life and 
health from serious harm.
  There is too much at stake to angle for partisan advantage or to be 
driven by narrow ideology. Let's work together to prevent abortions and 
protect the health and lives of American women. I urge my colleagues to 
support this amendment.
  Ms. SNOWE. Mr. President, I rise today in support of the amendment 
offered by Senator Murray, which would ensure that women have access to 
preventive health services--services like contraceptive coverage, and 
emergency contraception--to try to reduce the overall need for abortion 
by reducing the number of unintended pregnancies in this country. 
Furthermore, I support this amendment because just as critical to 
ensuring that women have the right to plan their families in ensuring 
that uninsured pregnant women have access to the care they need to have 
healthy pregnancies and pre-natal care.
  The composition of this amendment provides women with the ability to 
have healthy families--which is what family planning is all about. Key 
to this effort is access to prescription contraceptives--including the 
most commonly used contraception by far, oral contraceptives. Access to 
these prescriptions are guaranteed under this amendment which includes 
legislation I have authored each year since 1997, the Equity in 
Prescription Insurance and Contraceptive Coverage Act.
  I have led the fight for equitable coverage of contraceptives after 
having found out that in 1994, according to an Alan Guttmacher 
Institute, AGI, report, 49 percent of all large-group health plans and 
49 percent of preferred provide organizations, PPOs, did not routinely 
cover all five methods of reversible contraceptives. That report led me 
to introducing EPICC for the first time in 1997. And while the 
statistics have improved there is more work to be done. According to a 
2001 Kaiser Family Foundation report, while 98 percent of employers 
offer prescription drug coverage in general, still only 64 percent 
offer coverage of oral contraceptives. Again, this category is the most 
popular of all prescription contraceptives.
  It's been 6 long years now since I first introduced EPICC, and 
according to an AGI report, in each of those 6 years women have spent 
over $350 per year on prescription oral contraceptives--for a total of 
over $2,100. Why? Because many insurance companies that already cover 
other prescription drugs do not cover prescription contraceptives. How 
can we continue to deny this fundamental coverage for prescription 
drugs that are a key component in women's reproductive health?
  And that's no exaggeration, either. Take for example the known health 
benefits of oral contraceptives, which have been in use for over 40 
years now. First, the pill has been demonstrated to lower the risk of 
pelvic inflammatory disease, and has been linked to reducing the risk 
of ovarion, endometrial and uterine cancers. And, the estrogen in the 
pill facilitates maintaining bone-density--a key component in the 
effort to fight osteoporosis and the debilitating and often life 
threatening results of bone fractures which are all too often faced by 
older women.
  But if that's not enough, just consider the importance and impact of 
prescription contraceptives in context with what we're debating on the 
Senate floor this week. No matter where you are on the issues . . . no 
matter what your political stripe--there isn't a U.S. Senator who 
wouldn't want to reduce the number of abortions in America. I would 
guarantee that.
  Knowing that approximately 50 percent of all pregnancies in the U.S. 
each year are unintended--the highest of all industrial nations--
shouldn't that be a compelling reason to support this amendment, no 
matter which side of the abortion debate you're on? Indeed, I along 
with Senator Reid--who has long been a Democrat lead on my 
legislation--have long believed the EPICC not only makes sense in terms 
of the cost of contraceptives for women, but also as a means of 
bridging, at least in some small way, the pro-choice pro-life chasm by 
helping prevent unintended pregnancies and thereby also prevent 
abortions.
  Because, according to the Institute of Medicine Committee on 
Unintended Pregnancy, one of the reasons for the high rates of 
unintended pregnancies in the U.S. has been the failure of private 
health insurance to cover contraceptives--and half of these pregnancies 
end in abortion. Indeed, we know that there are 3 million unintended 
pregnancies every year in the United States. We also know that almost 
half of those pregnancies result from just the three million women who 
do not use contraceptives--while 39 million contraceptive users account 
for the other 53 percent of unintended pregnancies--most of which 
resulted from inconsistent or incorrect use.
  In other words, when used properly, contraceptives work. They prevent 
unintended pregnancies--we know that. Yet, there are opponents of my 
legislation, regardless of what we know about what access to 
contraceptives does for both the health of women and their children by 
having pregnancies better planned, and better spaced. Why? Well, it 
certainly shouldn't be cost.
  After all, a January 2001, OPM statement on EPICC-like coverage of 
federal employees under the FEHBP found no effect on premiums 
whatsoever since implementation in 1998. Let me repeat--no effect. In 
fact, some--like the Alan Guttmacher Institute--argue that improved 
access to and use of contraception nationwide would save insurers and 
society money by preventing unintended pregnancies, as insurers 
generally pay pregnancy-related medical costs--which can range anywhere 
from $5,000 to almost $10,000. Improved access to contraception would 
eliminate these costs and would reduce the costs to both employers and 
insurers.
  In 1999, the New York Business Group on Health released estimates 
calculated by Pharmacia and Upjohn Pharmaceuticals on the cost to 
employers of providing contraceptive coverage. Taking into account the 
cost of unintended pregnancies, Pharmacia and Upjohn estimated an 
overall savings of $40 per employee when contraception is a covered 
benefit. An estimate that is supported by a study that estimated that 
not covering contraceptives in employee health plans would actually 
cost employers 15-17 percent more than providing the coverage due to 
the other pregnancy related costs.
  Now, no one is saying that access to prescription contraceptives will 
solve the most vexing of social problems, but if access helps women 
plan their pregnancies, and includes in this planning assurances that 
they are in good health and that they will seek prenatal care, and that 
they have the financially stability to provide for their child--then, 
clearly, contraceptive coverage would significantly help improve the 
lives of millions of mothers and their future children.
  While the facts demonstrate that this amendment is something that 
every senator regardless of their position on abortion should support 
it as it will reduce the instance of abortion while improving the 
health of women and their future children, I must also say that Senator 
Murray's amendment--her prevention package--even in its totality, is 
not enough to fix the problems in the underlying bill offered by my 
friend, Senator Santorum, which

[[Page 5723]]

would ban late term abortions without providing for any clear exception 
to protect the life or the physical health of the mother. This is 
completely contrary to the 22-year-old landmark Supreme Court decision 
in Roe v. Wade that held that women have a constitutional right to an 
abortion, but after viability, States could ban abortions--as long as 
they allowed exceptions for cases in which a woman's life or health is 
endangered.
  And there should be no doubt--the underlying legislation puts women's 
lives and health on the line. If we vote this week to send this 
legislation to the President without additional changes beyond the 
inclusion of this amendment--which beyond the guaranteed access to 
prescription contraceptives provides information about emergency 
contraceptives for women and doctors, access to emergency 
contraceptives for sexual assault victims and finally, access to health 
care for pregnant uninsured women--we will bear the burden of putting 
women's lives and health at risk by substituting the judgement of 
politicians for the judgement of medical doctors. And that just isn't 
right.
  The bottom line is, women should have control over their reproductive 
health--whether it be through access to contraceptives, access to 
health care when they are pregnant or through preserving the right to 
choose which should include the right to terminate a pregnancy post-
viability if a doctor determines that continuance of the pregnancy 
would result in a grievous injury to the woman's physical health.
  After all, allowing women to decide what is in their best interests 
serves not only the woman's overall health, but their children's and 
their future children's health. This goal will be furthered by the 
amendment offered by Senator Murray and other amendments expected to be 
offered later this week by others which will ensure that we are 
following the guidelines laid out for us in the landmark Roe v. Wade 
decision ensuring that a woman's physical health is paramount in these 
decisions.
  In the meantime, I urge my colleagues to join us in supporting this 
important amendment.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. How much time is remaining on both sides?
  The PRESIDING OFFICER. The Senator from Washington has 5 minutes 48 
seconds. The Senator from Pennsylvania has 38 seconds.
  Mrs. MURRAY. Madam President, I state for all of our colleagues that 
we are going to vote in a few minutes on a very important amendment. We 
have heard a lot of rhetoric in the last few days saying that people 
care about women, care about women's health, care about the health of a 
child. I think what we all can agree on is that if we can help prevent 
unintended pregnancies and ensure access to health care coverage for 
low-income women, we have taken a major step forward in this country.
  The Murray-Reid amendment we are going to vote on in a few minutes 
does several really important things. Today, in this country, in too 
many States, women do not have access to contraceptives simply because 
they are discriminated against by their insurance company.
  What this amendment merely says is that it would prohibit those 
insurance plans from discriminating against contraception, so that 
women would not be denied the ability to make their own choices for 
their own family in their own homes with contraception that they can 
afford. I think this is something many Members agree on, many Members 
have supported, and it is a step in the right direction in this country 
for women's health.
  Secondly, it provides emergency contraceptive education. It simply 
authorizes a $10 million education program to help people know and get 
information to women and health care providers on the availability and 
effectiveness of emergency contraceptives--again, preventing unintended 
pregnancies. It provides emergency contraceptives in the emergency 
room.
  Senator Reid spoke very eloquently this morning about a young woman 
who was raped, who had no knowledge of what she could do to make sure 
she would not have an unintended pregnancy as a result of the rape. 
This simply makes sure that emergency contraceptives are available in 
our emergency rooms so that victims of sexual assault can get the care 
they need and be taken care of without having to have an unintended 
pregnancy that would be devastating. This is something of which 
everyone in this Chamber can be supportive.
  Finally, it expands the SCHIP and Medicaid Program to include low-
income pregnant women. As we all know, the administration moved to make 
the fetus eligible under SCHIP but left out the woman. I find that 
reprehensible. I do not know how a woman's health can be separated from 
her fetus and one can say this procedure and this medical condition 
only applies to the fetus. For all of us who have been pregnant, we 
know that oftentimes when you are not feeling well, you are not sure 
why you are not feeling well. You cannot separate a woman from her womb 
when she is pregnant, and you cannot make that kind of coverage just 
for the fetus. You have to make sure the woman is healthy. That is what 
this amendment will do. I think it is something all of us can support.
  What we have found this evening is that our colleagues on the other 
side, who have not spoken against this amendment because they do not 
want to speak against it, are hiding behind a budget waiver. To me, 
that is a technicality to hide behind. How can they go home and tell 
women that they are for women's health; that they are for making sure 
women have the opportunity to prevent unintended pregnancies so that we 
do not have these difficult choices on the floor of the Senate, and 
hide behind a budget waiver?
  I tell all of my colleagues, a vote to waive the Budget Act is a vote 
to help prevent unintended pregnancies. It is a vote for women's 
health, a vote to make sure that women have access and the ability to 
make these choices for themselves.
  I hope all of my colleagues will vote to waive the Budget Act so that 
we can put in place a bill that will allow women to make good choices 
for themselves that will allow them to be healthy and for their 
children to be healthy. Certainly, that is something on which we can 
all agree.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. SANTORUM. Madam President, a couple of points on the Murray 
amendment: No. 1, this amendment puts conditions on the receipt of 
enhanced SCHIP dollars. In order to get the enhanced match, a State 
must first expand eligibility up to 185 percent of the Federal poverty 
level with the regular Medicaid match rate. In other words, we will 
force States which are already facing tough budgetary times--and they 
are pounding on our door because of the cost of Medicaid already--to 
expand Medicaid before they are able to receive the benefits of this 
enhanced match.
  I do not think this is going to accomplish what they want to 
accomplish anyway. We are going through the process right now in the 
budget to deal with this issue. Senator Nickles has already said this 
is going to be dealt with in the budget. We will have a full discussion 
about this next week. That is the proper place for this discussion, not 
on this amendment.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Washington.
  Mrs. MURRAY. The Senate is about to vote on the Murray-Reid 
amendment. This is a prevention amendment. It is an amendment that 
supports women's health. If our colleagues choose to hide behind the 
technicality, that is their choice, but the American people want us to 
stand behind women's health. I urge my colleagues to support the motion 
to waive.
  The PRESIDING OFFICER. The time has expired.
  The question is on waiving section 207(b) of H. Con. Res. 68 of the 
106th Congress as extended by S. Res. 304 of the 107th Congress. The 
yeas and nays have been ordered. The clerk will call the roll.

[[Page 5724]]

  The bill clerk called the roll.
  Mr. FRIST. I announce that the Senator from Kentucky (Mr. McConnell) 
is necessarily absent.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from Florida (Mr. Graham), and the Senator from Massachusetts 
(Mr. Kerry) are necessarily absent.
  I further announce that, if present and voting the Senator from 
Massachusetts (Mr. Kerry) would vote ``aye''.
  The PRESIDING OFFICER (Mr. Alexander). Are there any other Senators 
in the Chambers desiring to vote?
  The result was announced--yeas 49, nays 47, as follows:

                      [Rollcall Vote No. 45 Leg.]

                                YEAS--49

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Clinton
     Collins
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Smith
     Snowe
     Stabenow
     Warner
     Wyden

                                NAYS--47

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Chambliss
     Cochran
     Coleman
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich

                             NOT VOTING--4

     Biden
     Graham (FL)
     Kerry
     McConnell


                             Change of Vote

  Mr. WARNER. Mr. President, on rollcall vote No. 45, I voted nay, and 
it was my intention to vote aye. Therefore, I ask unanimous consent 
that I be permitted to change my vote since it will not affect the 
outcome.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The foregoing tally has been changed to reflect the above order.)
  The PRESIDING OFFICER. On this vote, the yeas are 49, the nays are 
47.
  Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected. The point of order is 
sustained, and the amendment falls.
  The Senator from Illinois.


                           Amendment No. 259

  Mr. DURBIN. Mr. President, I have an amendment which I will be 
offering. At this point, I am prepared to commence debate on the 
amendment. I see the majority leader in the Chamber. If there is no 
other business to come before the Senate this evening, I will just 
continue the debate on the issue before us.
  I would like to bring the attention of my colleagues to an amendment 
which I will bring to a vote tomorrow afternoon. This is an amendment 
which I have prepared and offered with a number of cosponsors. I would 
like to acknowledge their support in offering this amendment with me. 
They include a bipartisan group of Senators who, frankly, are on 
different places on the political spectrum when it comes to the issue 
of abortion. This may be one of the only amendments to be offered which 
brings together people who don't see eye to eye, usually, on this 
issue. It is a good-faith effort on the part of myself and the 
cosponsors to bring this amendment forward in an effort to find a 
reasonable way to resolve an extremely difficult issue.
  I have said in previous debates, and I repeat that those who are on 
both sides of the issue come to it in good faith. Anyone who is in 
political life knows this is not an issue on which you are ever going 
to win. When it comes to the issue of abortion, there are a substantial 
portion of Americans who believe very strongly against a woman's right 
to choose, and a substantial portion who strongly favor a woman's right 
to choose. No matter which position you take, you are bound to make 
some enemies.
  What I have found is that between these two positions on the issue, 
you will find most Americans. And most Americans when pressed come to 
the following conclusion: They believe that we should keep abortion 
procedures safe and legal but make them as rare as possible, do not 
encourage them, have them available in extraordinary situations, but do 
not encourage them.
  That is the nature of the amendment which I am offering tomorrow, an 
amendment which I hope goes to the heart of the issue before us.
  We are debating what is known as the partial-birth abortion 
procedure. It has been graphically described during the course of this 
debate, and I am sure will be described again. It is one of the 
procedures that is used to terminate a pregnancy.
  There are those, including medical doctors, who argue that there is 
no such thing as a so-called partial-birth abortion. This was a term 
created for political purposes and that, in fact, when you look at all 
of the various abortion procedures available, you won't find this one 
listed. Some have called this the D&X procedure, dilation and 
extraction. Others say, no, it is somewhat different.
  The reason the definition of that procedure is important is that 
across the street from the Senate in the Supreme Court, they have 
thrown out State statutes that just refer to partial-birth abortion by 
saying that it is so vague, they can't reach a conclusion as to what 
the State legislature in that case intended.
  We come in this general debate on partial-birth abortion to the same 
impasse. The procedure is not well defined. But the amendment I offer 
is not an amendment that focuses on this procedure. What I focus on 
with the amendment is all abortion procedures postviability.
  That is an important distinction. What we are saying is that 
regardless of the abortion procedure you are talking about, I am 
looking at that period of time after it is medically determined that 
the fetus that the mother or woman is carrying is viable, could survive 
outside the womb. That was a critical distinction made in Roe v. Wade 
over 25 years ago. They said, when it comes to a case where that fetus 
could survive and is viable, only under the most extraordinary 
circumstances could you end a pregnancy, could you terminate with an 
abortion.
  That is reasonable. My amendment says that all abortion procedures 
postviability, after the fetus is viable, are prohibited except in two 
specific instances. You can only terminate a pregnancy legally through 
an abortion procedure after the fetus is viable if the life of the 
mother is at stake--same thing as said by my colleagues offering S. 3--
or a woman, if she continued the pregnancy, has a risk of grievous 
physical injury. I will explain these terms a little later.
  We also go on to say that in order to determine whether that late in 
the pregnancy, after the fetus could nominally survive outside the 
womb, in order to determine whether a woman's life is at risk to 
continue the pregnancy, or if she faces a grievous physical injury if 
she continues that pregnancy, you need not one but two doctors to 
certify that. But a reason that the two-doctor certification is 
important is that arguments were made that the same doctor performing 
the abortion would happily certify that the woman is eligible for the 
abortion. I don't believe that, but the critics have raised that point.
  To overcome that point, we have added the requirement for a second 
medical certification of a doctor who is not performing the abortion 
procedure--a doctor who will certify that continuing the pregnancy 
threatens the life of the mother, or would expose this mother to 
grievous physical injury.
  Then we add a very tough section in the bill that says that doctors 
who certify need to tell the truth. If they falsify information to 
justify a termination of a pregnancy, they face not only substantial 
fines of $100,000 in the

[[Page 5725]]

first instance, $250,000 in the second instance, but in either case, if 
they falsify information about whether a woman's medical condition 
qualifies her for a late-term abortion, they can lose their licenses to 
practice medicine. That is about as serious a penalty as you can impose 
on a doctor.
  So when you look at the span of what this amendment will do, it, in 
fact, limits all late-term abortions, regardless of the procedure--
limits all late-term abortions, only allowing them in two cases: where 
the life of the mother is at stake if she continues the pregnancy, or 
whether she faces grievous physical injury--which we define--if she 
continues the pregnancy. She needs two doctors to stand by her.
  We create an exception for an emergency. A woman late in her 
pregnancy, whose life is at risk, may not be able to find a second 
doctor; and if she can have a certification that it is an emergency 
situation, the second doctor's opinion will not be necessary. But that 
is the only exception. I think this is a very strict approach. I think 
it is one that is reasonable.
  There has been a lot said on the floor as to whether the partial-
birth abortion procedure is ever medically necessary. I have said 
repeatedly in debate that I am not a doctor; I cannot reach that 
conclusion on my own. I have to turn to others for advice. The American 
College of Obstetricians and Gynecologists says it is never the only 
thing you can do, but in some cases it may be the most appropriate 
thing for you to do.
  I have a statement of policy from the American College of 
Obstetricians and Gynecologists which restates their earlier position 
of 1997. I ask unanimous consent that this be printed in the Record at 
this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               American College of


                              Obstetricians and Gynecologists,

                                    Washington, DC, March 6, 2003.
     Hon. Barbara Boxer,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Boxer: The American College of Obstetricians 
     and Gynecologists (ACOG) reaffirms its Statement of Policy on 
     Intact Dilation and Extraction, initially approved by the 
     ACOG Executive Board in 1997.
           Sincerely,
                                                   Ralph Hale, MD,
                                         Executive Vice President.
       Attachment.

                        ACOG Statement of Policy

                (As issued by the ACOG Executive Board)


             statement on intact dilatation and extraction

       The debate regarding legislation to prohibit a method of 
     abortion, such as the legislation banning ``partial birth 
     abortion,'' and ``brain sucking abortions,'' has prompted 
     questions regarding these procedures. It is difficult to 
     respond to these questions because the descriptions are vague 
     and do not delineate a specific procedure recognized in the 
     medical literature. Moreover, the definitions could be 
     interpreted to include elements of many recognized abortion 
     and operative obstetric techniques.
       The American College of Obstetricians and Gynecologists 
     (ACOG) believes the intent of such legislative proposals is 
     to prohibit a procedure referred to as ``Intact Dilatation 
     and Extraction'' (Intact D&X). This procedure has been 
     described as containing all of the following four elements:
       1. deliberate dilatation of the cervix, usually over a 
     sequence of days;
       2. instrumental conversion of the fetus to a footling 
     breech;
       3. breech extraction of the body excepting the head; and
       4. partial evacuation of the intracranial contents of a 
     living fetus to effect vaginal delivery of a dead but 
     otherwise intact fetus.
       Because these elements are part of established obstetric 
     techniques, it must be emphasized that unless all four 
     elements are present in sequence, the procedure is not an 
     intact D&X.
       Abortion intends to terminate a pregnancy while preserving 
     the life and health of the mother. When abortion is performed 
     after 16 weeks, intact D&X is one method of terminating a 
     pregnancy. The physician, in consultation with the patient, 
     must choose the most appropriate method based upon the 
     patient's individual circumstances.
       According to the Centers for Disease Control and Prevention 
     (CDC), only 5.3 percent of abortions performed in the United 
     States in 1993, the most recent data available, were 
     performed after the 16th week of pregnancy. A preliminary 
     figure published by the CDC for 1994 is 5.6 percent. The CDC 
     does not collect data on the specific method of abortion, so 
     it is unknown how many of these were performed using intact 
     D&X. Other data show that second trimester transvaginal 
     instrumental abortion is a safe procedure.
       Terminating a pregnancy is performed in some circumstances 
     to save the life or preserve the health of the mother. Intact 
     D&X is one of the methods available in some of these 
     situations. A select panel convened by ACOG could identify no 
     circumstances under which this procedure, as defined above, 
     would be the only option to save the life or preserve the 
     health of the woman. An intact D&X, however, may be the best 
     or most appropriate procedure in a particular circumstance to 
     save the life or preserve the health of a woman, and only the 
     doctor, in consultation with the patient, based upon the 
     woman's particular circumstances can make this decision. The 
     potential exists that legislation prohibiting specific 
     medical practices, such as intact D&X, may outlaw techniques 
     that are critical to the lives and health of American women. 
     The intervention of legislative bodies into medical decision 
     making is inappropriate, ill advised, and dangerous.
       Approved by the Executive Board, January 12, 1997.

  Mr. DURBIN. Mr. President, we have a difference of opinion. Senator 
Santorum and others have said, wait a minute, we have doctor statements 
that say just the opposite. Some doctors and some doctor associations 
say this procedure is never needed, never necessary. Yet other doctors, 
such as the ones to whom I have referred, who do this for a living, say 
it may be the best thing to do. So when you have a difference of 
medical opinion, the obvious question is, Why would we, as a matter of 
law, come down on one side of this medical debate?
  It is not unusual for a patient who is facing a serious medical 
decision to get a second opinion because sometimes doctors disagree. 
You have to decide as a patient, or as a parent of a patient, what is 
the right thing to do. To say we are only going to take one approach, 
one opinion, and that will be the law of the land is to foreclose 
medical options. To foreclose options in a case where there may be a 
medical crisis, a serious complication in the pregnancy, I don't think 
is a wise course of action. As visceral and emotional as this issue is, 
our responsibility is to step back and say let's deal with this 
honestly and deal with it in a way that we can defend in medical terms.
  The bill before us bans only certain procedures and allows others to 
take place. Earlier, I had a conversation on the Senate floor with the 
Senator from Pennsylvania, Mr. Santorum, who is the lead sponsor. We 
talked about a particular case of a woman whom I have met from my 
State. She was the mother of two children. She was in her third 
pregnancy. Her husband, a businessman, had also been a practicing 
physician. She believed she was in a very normal pregnancy--until late, 
late, late in the pregnancy, the 32nd week, or 8 months into the 
pregnancy. She went in for an ultrasound because she had personal 
medical conditions they were worried about, and they determined by the 
ultrasound that the baby she was carrying had horrible birth anomalies 
and would not survive outside the womb, at which point her doctor said 
to her: If you go ahead with this pregnancy, normal labor in this 
pregnancy, or if you submit yourself to a C-section, it could be 
extremely dangerous. We recommend that you use the very procedure that 
is being banned by S. 3.
  She tells the story of almost collapsing in the doctor's office when 
she learned this. She told me personally that she wasn't a person who 
supported abortion. She told many people she was opposed to it. Here 
she was facing a medical emergency with few choices. So she prayed over 
it, talked to her husband, and made the decision to go for this 
procedure.
  The Senator on the floor, the Senator from Pennsylvania, Mr. 
Santorum, said she did the wrong thing. He has interposed his medical 
judgment, for what it is worth, and said she should have had a 
different form of abortion. I would not be so bold as to stand here on 
the floor and suggest that I can make that call or that decision. But 
it is interesting to me that, even being pro-life, he was saying she 
should have had an abortion procedure other than the one she chose.
  The reason I raise that is that this amendment deals with all 
abortion procedures, not just one, not just the

[[Page 5726]]

D&X, or the partial-birth abortion procedure, but all abortion 
procedures postviability. I think that is important to remember in what 
we are trying to achieve.
  If your goal is to reduce the number of late-term abortions in 
America, this amendment I am offering today has a greater likelihood of 
reducing that number than the underlying bill, S. 3. There is no 
question about it because only a very small percentage of cases use the 
so-called partial-birth abortion procedure. In fact, this amendment 
deals with all late-term abortions, all postviability abortion 
procedures. It would actually reduce the number of abortions performed.
  My amendment bans all postviability abortions regardless of 
procedure, unless ``the continuation of pregnancy would threaten the 
mother's life or risk grievous injury to her physical health.'' This 
exception is very important.
  The Santorum bill violates a woman's constitutional right to have her 
health protected. If you will read S. 3--and I have read it--the 
biggest problem they have is that the language of the bill before us is 
virtually identical to a Nebraska statute that has already been 
rejected by the Supreme Court. The Senators who offer this believe that 
by passing this bill and putting in the findings of the earlier Supreme 
Court decision, that is good enough.
  I don't think any student of constitutional law would agree with 
that. If the Supreme Court has reached the conclusion that this 
language fails to meet the test of Roe v. Wade, why in the world are we 
going through this exercise again?
  I think it is better for us to consider my alternative because the 
substitute I am going to offer takes a different approach--I hope a 
better approach. The Santorum approach, S. 3, violates a woman's 
constitutional right to choose under Roe v. Wade. Don't take my word, 
take the word of the Supreme Court. That was their decision in the case 
involving the Nebraska statute with the identical language.
  My amendment specifically protects a woman's constitutional right to 
choose before viability, before the fetus can survive outside the 
woman. That is an important distinction. Viability is, of course, a 
moving target. When Roe v. Wade was decided--I think the year was 
1973--the last 3 months was considered the time that a fetus would be 
viable. Medical technology has made great leaps forward, and now there 
are fetuses that are viable even before the third trimester. So we say 
to use as a standard, as in Roe v. Wade viability in general, the 
trimester system. They said in Roe v. Wade that until the time the 
fetus is viable there are certain legal rights in this country. We 
protect them. Once viability is reached, those rights change and we 
start acknowledging the fact that the fetus has now become a potential 
human being at birth.
  Roe v. Wade said we will define the laws of America based on 
viability. The amendment I offered does the same thing. The problem 
with S. 3--the reason this bill and versions have been found 
unconstitutional repeatedly is they refuse to accept the basic premise 
of Roe v. Wade, the premise of existing law in this country.
  They just will not acknowledge that you should have a law banning a 
certain procedure only after viability, which is why the Supreme Court 
rejected the Nebraska statute. Each time it is stricken because it 
would, in fact, restrict the right to abortion before viability, before 
the fetus could survive. Court after court has stricken down State laws 
that have followed S. 3, the Santorum model. Yet here we are again: 
same language, same outcome.
  My amendment represents a good-faith effort to deal with this issue. 
It draws the line with two specific cases: where the continuation of 
the pregnancy would threaten the mother's life, or risk grievous injury 
to her physical health. That is it, grievous physical injury.
  Here is why I believe this is reasonable. At this late stage in the 
pregnancy, seventh, eighth, or ninth month, I believe Roe v. Wade tells 
us we have to look at the pregnancy in different terms. We are now 
postviability. We are now in a circumstance where the fetus can 
survive.
  In those circumstances, I say the only way legally you can terminate 
the pregnancy is if continuing it could threaten the mother's life or 
continuing it could subject her to grievous physical injury, which is 
defined in my amendment.
  What does grievous physical injury include? What if you diagnosed a 
mother in the course of her pregnancy with serious cancer? And what if 
you found that continuing the pregnancy somehow compromised your 
ability to treat her for that cancer? My alternative retains the 
abortion option for mothers facing extraordinary heartbreaking medical 
conditions, such as breast cancer, discovered during the course of 
pregnancy.
  It also allows for postviability abortions in cases of uterine 
rupture, which could leave a woman sterile, future infertility, or non-
Hodgkin's lymphoma.
  The two-doctor requirement is an important element, too. Some have 
said one of the objections is if you allow a doctor to certify a 
mother's life is at stake or she runs the risk of grievous physical 
injury if the pregnancy continues, you are playing right into the hands 
of the people who perform the abortions. I have heard this argument so 
many times. We have addressed it directly in the amendment.
  I require a second doctor to certify. You have two doctors who come 
forward and say exactly what the conditions are to terminate a 
pregnancy. I also have a requirement that this can be waived in case of 
a medical emergency.
  What risks do doctors take if they are falsifying this information? 
If they do not tell the truth that a mother's life is at risk, they 
face substantial fines and the suspension or revocation of their 
license to practice medicine. It could not be more serious.
  There are two reasons to support my substitute amendment. One, it 
would actually reduce the number of abortions performed in this Nation 
and, two, because it has a health exception not contained in S. 3, the 
Santorum bill now under consideration, it is more likely to withstand 
the constitutional challenge and scrutiny across the street at the 
Supreme Court.
  I am honored a number of my colleagues on both sides of the aisle 
have joined me as cosponsor of the amendment. I particularly note the 
presence of my friend and cosponsor, Senator Collins of Maine. Her 
colleague, Senator Snowe of Maine, is also a cosponsor, as is Senator 
Akaka, Senator Bingaman, Senator Landrieu, and Senator Mikulski.
  As I said at the outset, it is the only amendment I know that will be 
considered in this debate which has the support of Senators across the 
spectrum on the issue of abortion:

     those who consider themselves closer to a pro-life position, 
     those who consider themselves closer to a pro-choice 
     position. I think that speaks to the wisdom of the amendment. 
     I hope my colleagues will consider that when the issue comes 
     before us for a vote.

  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. I thank the Chair. I am going to address most of my remarks 
to the bill. I do not think the amendment has been offered yet.
  Mr. DURBIN. I ask the Senator's indulgence for a moment. That is 
correct, I have not offered the amendment. If I might at this time 
offer the amendment and then yield to the Senator to continue his 
speech.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Illinois [Mr. DURBIN], for himself, Ms. 
     Collins, Ms. Snowe, Mr. Akaka, Mr. Bingaman, Ms. Landrieu, 
     and Ms. Mikulski proposes an amendment numbered 259.

  Mr. DURBIN. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Late Term Abortion 
     Limitation Act of 2003''.

[[Page 5727]]



     SEC. 2. BAN ON CERTAIN ABORTIONS.

       (a) In General.--Title 18, United States Code, is amended 
     by inserting after chapter 73 the following:

                 ``CHAPTER 74--BAN ON CERTAIN ABORTIONS

``Sec.
``1531. Prohibition of post-viability abortions.
``1532. Penalties.
``1533. Regulations.
``1534. State law.
``1535. Definitions.

     ``Sec. 1531. Prohibition of Post-Viability Abortions.

       ``(a) In General.--It shall be unlawful for a physician to 
     intentionally abort a viable fetus unless the physician prior 
     to performing the abortion, including the procedure 
     characterized as a ``partial birth abortion''----
       ``(1) certifies in writing that, in the physician's medical 
     judgment based on the particular facts of the case before the 
     physician, the continuation of the pregnancy would threaten 
     the mother's life or risk grievous injury to her physical 
     health; and
       ``(2) an independent physician who will not perform nor be 
     present at the abortion and who was not previously involved 
     in the treatment of the mother certifies in writing that, in 
     his or her medical judgment based on the particular facts of 
     the case, the continuation of the pregnancy would threaten 
     the mother's life or risk grievous injury to her physical 
     health.
       ``(b) No Conspiracy.--No woman who has had an abortion 
     after fetal viability may be prosecuted under this chapter 
     for conspiring to violate this chapter or for an offense 
     under section 2, 3, 4, or 1512 of title 18.
       ``(c) Medical Emergency Exception.--The certification 
     requirements contained in subsection (a) shall not apply 
     when, in the medical judgment of the physician performing the 
     abortion based on the particular facts of the case before the 
     physician, there exists a medical emergency. In such a case, 
     however, after the abortion has been completed the physician 
     who performed the abortion shall certify in writing the 
     specific medical condition which formed the basis for 
     determining that a medical emergency existed.

     ``Sec. 1532. Penalties.

       ``(a) Action by the Attorney General.--The Attorney 
     General, the Deputy Attorney General, the Associate Attorney 
     General, or any Assistant Attorney General or United States 
     Attorney specifically designated by the Attorney General may 
     commence a civil action under this chapter in any appropriate 
     United States district court to enforce the provisions of 
     this chapter.
       ``(b) First Offense.--Upon a finding by the court that the 
     respondent in an action commenced under subsection (a) has 
     knowingly violated a provision of this chapter, the court 
     shall notify the appropriate State medical licensing 
     authority in order to effect the suspension of the 
     respondent's medical license in accordance with the 
     regulations and procedures developed by the State under 
     section 1533(b), or shall assess a civil penalty against the 
     respondent in an amount not to exceed $100,000, or both.
       ``(c) Second Offense--Upon a finding by the court that the 
     respondent in an action commenced under subsection (a) has 
     knowingly violated a provision of this chapter and the 
     respondent has been found to have knowingly violated a 
     provision of this chapter on a prior occasion, the court 
     shall notify the appropriate State medical licensing 
     authority in order to effect the revocation of the 
     respondent's medical license in accordance with the 
     regulations and procedures developed by the State under 
     section 1533(b), or shall assess a civil penalty against the 
     respondent in an amount not to exceed $250,000, or both.
       ``(d) Hearing.--With respect to an action under subsection 
     (a), the appropriate State medical licensing authority shall 
     be given notification of and an opportunity to be heard at a 
     hearing to determine the penalty to be imposed under this 
     section.
       ``(e) Certification Requirements.--At the time of the 
     commencement of an action under subsection (a), the Attorney 
     General, the Deputy Attorney General, the Associate Attorney 
     General, or any Assistant Attorney General or United States 
     Attorney who has been specifically designated by the Attorney 
     General to commence a civil action under this chapter, shall 
     certify to the court involved that, at least 30 calendar days 
     prior to the filing of such action, the Attorney General, the 
     Deputy Attorney General, the Associate Attorney General, or 
     any Assistant Attorney General or United States Attorney 
     involved----
       ``(1) has provided notice of the alleged violation of this 
     chapter, in writing, to the Governor or Chief Executive 
     Officer and Attorney General or Chief Legal Officer of the 
     State or political subdivision involved, as well as to the 
     State medical licensing board or other appropriate State 
     agency; and
       ``(2) believes that such an action by the United States is 
     in the public interest and necessary to secure substantial 
     justice.

     ``Sec. 1533. Regulations.

       ``(a) Federal Regulations.----
       ``(1) In general.--Not later than 60 days after the date of 
     enactment of this chapter, the Secretary of Health and Human 
     Services shall publish proposed regulations for the filing of 
     certifications by physicians under this chapter.
       ``(2) Requirements.--The regulations under paragraph (1) 
     shall require that a certification filed under this chapter 
     contain----
       ``(A) a certification by the physician performing the 
     abortion, under threat of criminal prosecution under section 
     1746 of title 28 that, in his or her best medical judgment, 
     the abortion performed was medically necessary pursuant to 
     this chapter;
       ``(B) a description by the physician of the medical 
     indications supporting his or her judgment;
       ``(C) a certification by an independent physician pursuant 
     to section 1531(a)(2), under threat of criminal prosecution 
     under section 1746 of title 28, that, in his or her best 
     medical judgment, the abortion performed was medically 
     necessary pursuant to this chapter; and
       ``(D) a certification by the physician performing an 
     abortion under a medical emergency pursuant to section 
     1531(c), under threat of criminal prosecution under section 
     1746 of title 28, that, in his or her best medical judgment, 
     a medical emergency existed, and the specific medical 
     condition upon which the physician based his or her decision.
       ``(3) Confidentiality.--The Secretary of Health and Human 
     Services shall promulgate regulations to ensure that the 
     identity of a mother described in section 1531(a)(1) is kept 
     confidential, with respect to a certification filed by a 
     physician under this chapter.
       ``(b) State Regulations.--A State, and the medical 
     licensing authority of the State, shall develop regulations 
     and procedures for the revocation or suspension of the 
     medical license of a physician upon a finding under section 
     1532 that the physician has violated a provision of this 
     chapter. A State that fails to implement such procedures 
     shall be subject to loss of funding under title XIX of the 
     Social Security Act.

     ``Sec. 1534. State Law.

       ``(a) In General.--The requirements of this chapter shall 
     not apply with respect to post-viability abortions in a State 
     if there is a State law in effect in that State that 
     regulates, restricts, or prohibits such abortions to the 
     extent permitted by the Constitution of the United States.
       ``(b) Definition.--In subsection (a), the term `State law' 
     means all laws, decisions, rules, or regulations of any 
     State, or any other State action, having the effect of law.

     ``Sec. 1535. Definitions.

       ``In this chapter:
       ``(1) Grievous Injury.----
       ``(A) In general.--The term `grievous injury' means----
       ``(i) a severely debilitating disease or impairment 
     specifically caused or exacerbated by the pregnancy; or
       ``(ii) an inability to provide necessary treatment for a 
     life-threatening condition.
       ``(B) Limitation.--The term `grievous injury' does not 
     include any condition that is not medically diagnosable or 
     any condition for which termination of the pregnancy is not 
     medically indicated.
       ``(2) Physician.--The term `physician' means a doctor of 
     medicine or osteopathy legally authorized to practice 
     medicine and surgery by the State in which the doctor 
     performs such activity, or any other individual legally 
     authorized by the State to perform abortions, except that any 
     individual who is not a physician or not otherwise legally 
     authorized by the State to perform abortions, but who 
     nevertheless directly performs an abortion in violation of 
     section 1531 shall be subject to the provisions of this 
     chapter.''.
       (b) Clerical Amendment.--The table of chapters for part I 
     of title 18, United States Code, is amended by inserting 
     after the item relating to chapter 73 the following new item:

``74. Ban on certain abortions.................................1531.''.

  Mr. DURBIN. I thank the Senator.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I am proud today to join Senator Santorum 
from Pennsylvania and a large majority of my colleagues in support of 
S. 3, the Partial-Birth Abortion Ban Act of 2003. I urge my colleagues 
to join me in passing this bill.
  Since the amendment has been laid down, I will ask my colleagues to 
join me in opposing the amendment that has been put forth. My colleague 
said the procedure is not well defined. Read the bill. Partial-birth 
abortion is the best description of what we are talking about: allowing 
a baby to come within a heartbeat of being born and then killing it.
  I am also fascinated by this term ``viable fetus.'' I think that 
means a real baby. It is nice to phrase it in some other terms, but if 
it is viable, that is what we are talking about.
  The argument is this is about health. No, it is not. This is about 
life and death, and that is why the bill speaks

[[Page 5728]]

specifically to life. What we tried to do in framing this argument was 
to come up with the most definite situation where those who are in 
favor of abortion are separated from those opposed to abortion. It is 
pretty much that simple. There will be some efforts to try to bring it 
back a little more to the middle so people can put a little bit of a 
spin on their decision, but that is what this is about. That is why a 
procedure was picked that is not taught any longer; a procedure was 
picked that the American Medical Association said is not needed 
anymore. That makes it pretty clear.
  You can add all the qualifications you want to it, but if you cannot 
oppose partial-birth abortion, then you must be in favor of abortion.
  We are debating an issue that has an important bearing on the future 
of this Nation. Partial-birth abortion is a pivotal issue because it 
demands we decide whether we as a civilized people are willing to 
protect the most fundamental of rights: the right to life itself.
  If we rise to this challenge and safeguard the future of our Nation's 
unborn, if we make this statement, we will be protecting those whose 
voices cannot yet be heard by the polls and the surveys and those whose 
votes cannot be weighed in the political process. If we fail in our 
duty, we will justly earn the scorn of future generations when they ask 
why we stood idly by and did nothing in the face of national 
infanticide.
  Opponents have argued this procedure is necessary in some 
circumstances: to save the life of the mother or to protect her health 
or future fertility. These arguments do not have foundation in fact.
  First, this bill provides an exception if the procedure is necessary 
to save the life of the mother and no alternative procedure could be 
used for that purpose. Moreover, leaders in the medical profession, 
including former Surgeon General C. Everett Koop, have stated 
unequivocally that partial-birth abortion is never medically necessary 
to protect a mother's health or her future fertility; on the contrary, 
this procedure can pose a significant threat to both.
  A coalition of over 600 obstetricians, perinatologists, and other 
medical specialists have similarly concluded there is no sound medical 
evidence to support the claim that this procedure is ever necessary to 
protect a woman's future fertility.
  These arguments are offered as a smokescreen to obscure the fact that 
this procedure results in taking an innocent life at the moment of 
birth.
  The practice of partial-birth abortion has shocked the conscience of 
our Nation and it must be stopped. Even the American Medical 
Association has endorsed this legislation. In a letter to the chief 
sponsor of this bill, Senator Santorum, the American Medical 
Association explained:

       Although our general policy is to oppose legislation 
     criminalizing medical practice or procedure, the AMA has 
     supported such legislation where the procedure was narrowly 
     defined and not medically indicated. The Partial-Birth 
     Abortion Ban Act now meets both of these tests. . . . Thank 
     you for the opportunity to work with you towards restricting 
     a procedure that we all agree is not good medicine.

  I have based my decision on every bill that has come before this body 
on what effect it will have on those generations still to come. We in 
the Senate have deliberated about what steps we can take to make the 
society a better place for our families and the future of our children. 
We, as Senators, will cast no vote that will more directly affect the 
future of our families and our children than the vote we cast on this 
bill.
  When I ran for office, I promised my constituents I would protect and 
defend the right to life of unborn babies. The sanctity of human life 
is a fundamental issue on which we as a nation should find consensus. 
It is a right that is counted among our unalienable rights in our 
Nation's Declaration of Independence.
  We must rise today to challenge what has been laid before us to 
protect innocent human life. I urge my colleagues to join me in casting 
a vote for life by supporting the Partial-Birth Abortion Ban Act.
  All of us in this body have had significant life experiences that 
have helped to shape our political philosophies. Eight years ago I had 
a torn heart valve and I was rushed to the hospital for emergency 
surgery. I had never been in a hospital except to visit sick folks. It 
was a tragic surprise to me. I am impressed with what they are able to 
do, but I have also been impressed with what doctors do not know, and 
that is not a new revelation for me.
  Thirty-one years ago, my wife and I were expecting our first child. 
One day early in the sixth month of pregnancy my wife started having 
some pains and contractions. We were so new to the game we did not even 
know what that was, but fortunately she had a visit to the doctor 
scheduled that same day. I took her there and I went back to work. Then 
I received a call from the doctor who said: You need to come down here, 
too.
  That is never good news when the doctor tells you to come to the 
doctor's office.
  I went down there and the doctor said: You may have a baby right now. 
We know it is early, 3 months early, and that does not bode well. We 
will try to stop it and we can probably stop it.
  Well, they could not. The baby came that night and weighed just a 
little over 2 pounds. I wanted to know what the doctor was going to do. 
The doctor said: Well, we will just have to wait until morning and see 
if she lives--not exactly the kind of medical technology and knowledge 
that one wants somebody to have about a baby.
  He admitted that he did not have any control over it. It was in our 
hands at that point in time. We sweated through that night. I could not 
believe that the doctors could not stop a premature birth. Then I could 
not believe that they could not do something to help the newborn baby. 
Until someone sees one of these babies, they will not believe what a 6-
month-old baby looks like. At the same time my wife gave birth to this 
2-pound baby, a friend of ours gave birth to a 10-pound baby. This was 
a small hospital in Wyoming. They put them side by side. It was a 
tremendous contrast. Some of the people viewing the babies said: Oh, 
look at that one. Looks like a piece of rope with some knots in it; too 
bad.
  We were watching her gasp and struggle with every breath. We watched 
the whole night to see if she would live, and we prayed.
  The next day we were able to take this baby to a hospital that 
provided excellent care. She was supposed to be flown to Denver where 
they have the best care in the world for premature babies, but it was a 
Wyoming blizzard and we could not fly. So we took a car from Gillette, 
WY, to the center of the State to Wyoming's biggest hospital to get the 
best kind of care we could find. We were supposed to be going down in a 
four-wheel drive ambulance but we wound up going in an Edsel. They 
thought there might be a bigger medical emergency in the county so they 
could not get the four-wheel drive. I can say I thought the biggest 
emergency in the county was my daughter.
  On the way down, we ran out of oxygen. We noticed a whole bunch of 
highway patrolmen going the other way. When we got to the hospital, we 
asked if there had been an accident, and they said, no, that they were 
looking for a premature baby who should have gotten to the hospital 
quite awhile ago. I said: Well, that was us.
  We did receive exceptional care, but the doctor's words when we first 
talked to him at that hospital were: Well, another 24 hours and we will 
know something. Another 24 hours before we could do anything.
  After those 24 hours, there were still several times when we went to 
the hospital and there would be a shroud around her isolette. We would 
knock on the window. The nurses would come over and say: It is not 
looking good. We had to make her breathe again. One time when they 
said, have you had the baby baptized, that is kind of the ultimate of 
dropping your heart in your shoes.
  We had had the baby baptized in the first few minutes after birth 
using

[[Page 5729]]

some water in a coffee cup from the kitchen of the hospital. A minister 
had come over and done that. We did learn from the nurse that they had 
no records of ever having lost a baby who had been baptized. But that 
child worked and struggled to live. Feeding was a major procedure. 
Losing the ability to get blood through the navel was a major 
procedure. She was 3 months premature, did not have any gristle in her 
ears. They flopped over. That had to be a part of the procedure yet 
that would come with growth.
  We went through 3 months of waiting to get her out of the hospital. 
Every step of the way the doctor said: Her ability to live is not our 
duty. It gave me a whole new outlook on life, and now I want to tell 
everyone the good news. The good news is that the little girl who 
struggled so hard to live, who would be considered barely viable by 
most people who perform abortions, is now an outstanding public school 
principal in Chugwater, WY; population, 256; enrollment, 126 kids, 
kindergarten through 12th grade. She is doing a marvelous job. She has 
taught school for several years.
  That does not mean she came out of this problem free. She was very 
lucky. There was a hum in that isolette that was sometimes covered up, 
and that hum wiped out a wide range of tones to her. So she cannot hear 
the same way that you and I do, but, oh, can she read lips, which in a 
classroom is really a very good thing for a teacher to be able to do. 
Even after they know she can read lips, they usually test her with it.
  This experience has given me an appreciation for all life, and it 
continues to influence my vote now and on all issues protecting human 
life.
  I have come to know what an incredible thing that is as I watch some 
of life's situations. For instance, death row, how come those people do 
not want to die? It is not common to life.
  I watch these young babies. They want to live. They struggle with 
every fiber of their being to live. It is an incredible struggle--one 
we do not see in kids who come to term or kids as they grow up--when 
they have no meat on their bones and lungs that are underdeveloped and 
fingernails that have not come on yet. It is an incredible struggle 
that gives a new appreciation of life. It is such a miracle that we 
have to respect it. We have to work for it every single day in every 
way that we can.
  I think this bill will help that effort. I think this bill will bring 
a little conscience, a little consideration, and a whole lot of thought 
to this country. It is something we have needed and we do need and we 
will need for the future of our kids.
  I yield the floor.
  Ms. COLLINS. Mr. President, I rise in support of the amendment 
offered by my friend and colleague from Illinois, Senator Durbin, to 
ban all late-term abortions, including partial-birth abortions that are 
not necessary to save the woman's life or to protect her physical 
health from grievous harm.
  This debate should not be about one particular method of abortion 
but, rather, about the larger question of under what circumstances 
should late-term or post-viability abortions be legally available. Let 
me be clear from the outset that I am strongly opposed not just to 
partial birth abortions, but to all late-term abortions. I agree they 
should be banned.
  Such a ban, however, must have an exception for those rare cases when 
it is necessary to save the life of the woman or to protect her 
physical health from grievous harm. Fortunately, late-term abortions 
are extremely rare. In my state, according to the Maine Department of 
Human Services, just five late term abortions have been performed in 
the last 20 years.
  Our amendment goes far beyond, in many ways, what the Senator from 
Pennsylvania is attempting to accomplish. His legislation would only 
prohibit one specific form of abortion. In fact, the bill he supports 
would not prevent a single late-term abortion. Let me emphasize that 
point. The partial-birth legislation before us would not prevent a 
single late-term abortion. A physician could simply use another, 
perhaps more dangerous, method to end the pregnancy.
  By contrast, Senator Durbin's proposal would prohibit the abortion of 
any viable fetus by any method unless the abortion is necessary to 
preserve the life of the woman or to prevent grievous injury to her 
physical health.
  Those of us who have worked with Senator Durbin on this amendment 
have taken great care to tightly limit the health exception. Grievous 
injury is limited to physical health. It is defined as a severely 
debilitating disease or impairment specifically caused or exacerbated 
by the pregnancy or an inability to provide necessary treatment for a 
life-threatening condition.
  The Maine Medical Association has said that when ``a pregnant woman 
develops a life or health-threatening medical condition that makes 
continuation of the pregnancy dangerous, abortion may be medically 
necessary. In these cases, intact dilation and evacuation procedures 
may provide substantial medical benefits or, in fact, may be the only 
option. This procedure may be safer than the alternatives, maintain 
uterine integrity, reduce blood loss, and reduce the potential for 
other complications.'' That is what the experts the doctors are telling 
us.
  Senator Durbin's amendment also includes a very important second 
safeguard. If the treating physician determines that continuation of 
the pregnancy would threaten the woman's life or risk grievous injury 
to her physical health, before the abortion could be performed, a 
second opinion, in writing, must be obtained from an independent 
physician. This second opinion must come from a physician who would not 
be involved in the abortion procedure and who has not been involved in 
the treatment of the woman.
  Unlike the pending bill, which I believe is unconstitutional, the 
Durbin amendment is consistent with the U.S. Supreme Court's 2000 
decision in Stenberg v. Carhart. In Stenberg, the Court struck down 
Nebraska's partial-birth abortion ban statute because it lacked any 
exception for the preservation of the health of the woman. The Court 
reaffirmed its earlier decisions in Roe v. Wade and Planned Parenthood 
v. Casey that abortion regulation must include an exception where it is 
``necessary, in appropriate medical judgment, for the preservation of 
the life or health of the woman.''
  The Durbin amendment is a fair and compassionate compromise on this 
extremely difficult issue. It would ensure that all late-term 
abortions--including partial-birth abortions--are strictly limited to 
those rare and tragic cases where the life or the physical health of 
the woman is in serious jeopardy. This amendment presents an unusual 
opportunity for both ``pro-choice'' and ``pro-life'' advocates to work 
together on a reasonable approach, and I urge our colleagues to join us 
in supporting it.
  I yield the floor.
  Mr. SANTORUM. Mr. President, I rise in opposition to the Durbin 
amendment. The Durbin amendment is virtually identical to the amendment 
we voted on 3 years ago, I believe it was. It adds simply nine words at 
the beginning of the amendment. It says:

       It shall be unlawful for a physician to intentionally abort 
     a viable fetus unless the physician prior to performing the 
     abortion----.

  And then adds these words----

     including the procedure characterized as a partial birth 
     abortion.

  And then it goes on. The only difference between that amendment and 
this amendment are the words ``including the procedure characterized as 
partial-birth abortion.'' So all of the operative language that seeks 
ostensibly to ban certain abortions is the same.
  What are the problems I have, and hopefully the majority of Senators 
have with this ban? No. 1, it only limits--the partial-birth abortion 
amendment is limited to postviability abortions. As we have discussed 
here over and over, the fact that babies who are delivered in a 
partial-birth abortion, partially delivered, are of gestational age 
that is in excess of 20 weeks and would otherwise be born alive, that 
doesn't necessarily mean that they would necessarily survive long-term 
or ``be viable.'' Viability means not that they wouldn't be born alive, 
but they would have a reasonable chance of survival. That is a very 
subjective thing.

[[Page 5730]]

There is no definition of viability, no standard set in this 
legislation, and it is purely the abortionist's determination as to 
whether the child being aborted is viable or not.
  We have survival rates of infants born at different gestational ages. 
Senator Frist, earlier today, went through some of those. I will review 
them.
  Prior to 23 weeks, a child being delivered at that time has a small 
chance. There are probably single digits or less at 21 weeks; 22 weeks 
maybe high single digits. I don't have those numbers but that is my 
recollection from years past debating this.
  When we get to 23 weeks, you have a survival rate of about a third; 
24 weeks, two-thirds; 25 weeks, almost three-quarters; 26 weeks, 90 
percent. But in each one of these cases, even though there are 
increasing survival rates, you have a great deal of subjectivity of an 
abortionist being presented with a baby to determine whether this baby 
in utero is viable. It is purely subjective. All the physician has to 
say is: Well, I don't think it is viable. So this just doesn't apply. 
There is no ban at all.
  Since most partial-birth abortions are in the 20-to-26 week range, 
there is ample opportunity, ample opportunity for the doctor to say in 
every instance: Well, I just didn't think it was viable.
  There is no penalty. There is no criminal sanction. There is no peer 
review. There is nothing. So this is a ban without a ban because it 
leaves it completely to the subjectivity of the physician to determine 
viability.
  But that is only half the problem. The other half of the problem is 
these words. It says:

       It shall be unlawful for a physician to intentionally abort 
     a viable fetus unless the physician prior to performing the 
     abortion, including partial-birth abortion, certifies in 
     writing in the physician's medical judgment, based on the 
     particular facts of the case before the physician, the 
     continuation of the pregnancy would threaten the mother's 
     life----
  Hear the operative words----

     or risk grievous injury to her physical health.

  Substantial risk? A little risk? One percent risk? Half of 1 percent 
risk? Is it .00001 percent risk? Risk is not defined and risk can mean 
any risk. It can mean the slightest risk.
  As Dr. Warren Hern, who is the author of the standard textbook on 
abortion procedures back in May of 1997, said in response to a question 
on this amendment: ``I say every pregnancy carries a risk--'' not just 
of grievous physical injury--``of death.''
  Every pregnancy carries a risk of death.

       I will certify that any pregnancy is a threat to a woman's 
     life and could cause grievous injury to her physical health.

  He was talking about life and death. We are talking about her 
physical health, grievous injury to her physical health. That is the 
second part.
  The fact is, risk not being defined is the open door. The analogy was 
made by someone that if you have a law that says no dog may be shot 
except where there is a risk that the dog in question may bite, then 
any dog can be shot because there is always a risk a dog is going to 
bite.
  Any abortion can be performed because there is always a risk. Since 
we don't quantify the risk, since we don't define the risk, risk is 
whatever a doctor wants it to be. I bet you will not find one 
obstetrician, and certainly not one abortionist, who will make the 
claim that there is no risk associated with the continuation of a 
pregnancy. It is by definition a risk to the mother.
  The most healthy pregnancy involves some element of risk. So this 
amendment--I am not questioning the intent of the Senator from 
Illinois. I know he went at this and worked, together with the Senator 
from Maine and others, to try to come up with a good-faith attempt to 
put a bill together that would be effective. But this doesn't do it. 
This simply leaves open both the issue of viability and who determines 
it. There is no peer review, no second-guessing to the abortionist, and 
then risk as an open question meaning any amount of risk.
  I believe you will not find any doctor who will say there is not a 
risk. Of course, there is a risk.
  The point is not risk, the point is, Is this procedure medically 
necessary? I keep coming back to this issue over and over again. Please 
present me with a case, with a case, a factual circumstance where this 
procedure would be medically necessary and where other abortion 
procedures could not do, not just as good a job, but a better job. 
Every health organization out there that I am aware of has said this is 
bad medicine, this is not practiced, this is not used to protect the 
health of the mother.
  We keep trying to grab for a health-of-the-mother exception when the 
health of the mother is not at issue here. If we were concerned about 
the health of the mother, then we would not be doing the procedure. We 
would not be allowing a procedure that is unhealthy; that takes a 
mother who obviously is under some duress or she wouldn't be at an 
abortion clinic. She is under some either mental or physical or some 
sort of angst that she wants to terminate her pregnancy. This is not a 
decision that people come by easily.
  What the doctor in the case of a partial-birth abortion does is give 
her a pill and send her home for 2 days. Come back to me in 2 days. And 
we have cases that we are aware of, the Senator from Ohio spoke about 
this yesterday, where children have been delivered in the interim 
because the cervix dilated too quickly, too much, and the baby was 
delivered. In one case that we are aware of the baby lived. But they 
send these mothers home for 2 days.
  The doctor who designed this procedure said the reason he designed 
this procedure is because it only takes 15 minutes out of his day to do 
and the other abortions that are peer reviewed, that are taught in 
medical schools, that obstetricians and gynecologists do--not that 
physician who is not an obstetrician who came up with this procedure or 
most of the practitioners, if not all of them that I am aware of who do 
this procedure, to my knowledge, I am not aware that any are 
obstetricians. I could be wrong on that but the ones who have come 
before the Congress, the ones I have seen cited in articles and 
testimony who have done these, none of them have been obstetricians. 
They are abortionists who make money doing abortions. And they came up 
with a great way to make more money, to get patients in and out 
quicker.
  That is great for them, but it certainly does not take into much 
account the health consequences to women. If you look at the AMA, and 
every physician group that has come forward, none of them are seeing 
this is superior medicine. None of them say this is to the benefit of 
women's health.
  I hear so many of my colleagues talk about women's health, women's 
health, women's health. Where are they when we are trying to ban a 
procedure that is contraindicated for the health of women? Where there 
are other, safer, better procedures that are available for the health 
of women, and yet they stand foursquare against women's health, 
foursquare for the option that is the most dangerous. And it is never 
medically necessary. So you have to ask yourself a question. If you 
have a procedure that is the most dangerous procedure and that is the 
most unhealthy for women, why would you continue to support it if it is 
not medically necessary? Not one case has ever been voiced at any 
hearing or in any debate on the floor of the Senate or on the floor of 
the House. One has come forward and said: This is why. Here is the 
case. This is why this is the best procedure. No one--no doctor, no 
Senator, no Congressman, no layperson--has come forward and said, this 
is it, this is the reason. So we have no medical need.
  But we do have overwhelming definitive evidence that this procedure 
is the most dangerous to the health of women. Yet there are those who 
will come to the floor and proclaim their allegiance to improving 
women's health who want this procedure made legal for the people who 
designed it so they can make more money doing abortions in 15 minutes 
as opposed to 45 minutes--and do it in a way that is just brutal.
  This is another quote from Dr. Hern:

       I have very serious reservations about this procedure. You 
     really can't defend it. I would

[[Page 5731]]

     dispute any statement that this is the safest procedure to 
     use.

  This is an abortionist who wrote the textbooks on abortions. He 
authored the textbooks on abortion procedures. He does late-term 
abortions regularly. He is the expert. He continues to do them. What 
professional in the field says you can defend it? Why would people come 
to the floor of the Senate to defend the procedure that is 
indefensible, that is never going to be necessary, and that is harmful 
to women? Why? Why would you do that? Because you want to create 
options. Why would you want to create an option that is harmful to 
women?
  I understand people come in all the time saying we can't restrict the 
doctors. Of course you can restrict the doctors if what they are 
prescribing is harmful and if there are safer procedures to use. We 
darned well better proscribe it. We have to. We have an obligation to.
  You have folks who are abortionists saying you can't defend it. Yet 
here we are defending it. Why? Why are some Members so dug in to 
protect a rogue procedure that brutalizes and executes a child 3 inches 
away from constitutional protection?
  I had a debate several years ago on this issue. If a child was 
somehow delivered--3 inches from the crown of the baby's head, from the 
nape of the neck to the crown of its head--had actually gone through 
the cervix and the child was separated from the mother, they wouldn't 
argue that you then could kill the child. What is it that would allow 
this procedure?
  You heard the Senator from Tennessee, Mr. Frist, talk about all of 
the complications and all that could go wrong with the blind procedure 
in an area of the woman's body that is very susceptible to injury, and 
where these other abortions are performed under controlled conditions 
with sonograms and you can see everything that is going on. In this 
case, it is a blind procedure with a sharp instrument in an area that 
is very vulnerable to injury. Why? Why would people continue to defend 
a harmful procedure, the least safe procedure done only by 
abortionists, only in abortion clinics, not taught by schools and not 
done by obstetricians? Why? To protect women's health? No. For medical 
necessity? No. Why? That is a question I think needs to be answered.
  What is so sacred here? What is so valued? What is it that is very 
deep inside this opposition, that is so important that we are willing 
to risk the health of women who are told by their doctors this is safe 
and who listen? The doctor-patient relationship is important. There is 
a sanctity to it. But you know what. Not every doctor lives up to that.
  Many of the people who come here and argue for partial-birth abortion 
will be here in a few weeks arguing that doctors aren't worthy in many 
cases of our support and are against medical malpractice. These doctors 
who do bad things to patients should be hammered. What about these 
doctors who perform indefensible procedures that risk the health of 
women? Why aren't we going after them? Why are we protecting them? What 
is it? What is it that is so important that we are going to risk 
women's health when there is no medical necessity to do this? Where? It 
is contraindicated.
  We know the answer to that question, don't we? We can't even come 
close. We can't even approach abortion as a right in this country 
because it is the supreme right. Anything that even approaches 
mentioning the word ``abortion'' irrespective of the consequences to 
women, God knows irrespective of the consequences to the children, we 
simply preserve this right above all rights.
  OK. Maybe we have to argue for a procedure that is dangerous. Maybe 
we have to argue for a procedure that is going to hurt women. Maybe we 
have to argue for a procedure that is never medically necessary. Maybe 
we have to argue for a procedure that is not done by obstetricians even 
though we are talking about obstetrics here. We have to bite the bullet 
on this. Yes.
  But do you know what. We are going to keep the barbarians away from 
the gates. We are going to keep these people away from this absolute 
right of abortion. Whether it costs a few women their lives, or it 
costs the health or reproductive future of women, you know, it is worth 
it. We can't erode this right.
  That is what it is all about. That is what it is all about. It is not 
about women's health. There is not one physician in this country who 
has come and testified that this is about women's health because it is 
not. The AMA says it is not. The obstetrician organizations say it is 
not. No one argues that this is the best procedure. The expert on 
third-term abortion said it. He is on this side of their issue, by the 
way. But at least he will make the claim that he is for women's health, 
and he will do so honestly, which is something that has not been done 
by many of the outside ``experts'' who have argued to keep this 
procedure legal.
  I have chart after chart. I will bring them out later. I have six 
charts going through the history of partial-birth abortions and showing 
the absolute fabrication put forth by those against this ban.
  Oh, the anesthesia would dull the pain. Then another person testified 
that the anesthesia and the cervical block would kill the baby and 
there wouldn't be a live delivery. The anesthesiologists around the 
country went into panic. Women were hearing about it and they would be 
afraid with their delivery if they took anesthesia--that there would be 
a cervical block and their child would die. They had to backtrack from 
that.
  The list is long. The facts stand. The reason this bill has gotten 
over 60 percent of the Senate, when probably 40 to 45 percent of the 
Senate is pro-life, is because this is, as the doctor from Colorado 
said, an indefensible procedure.
  So why? Why are we here? We are here because the Supreme Court 
defended the indefensible. They defended the indefensible. We have 
responded to the Supreme Court.
  I hope the Justices read this Record because I am talking to you. I 
want you to read every time over the last few days where I asked 
somebody to come forward with a health exception, where there is a 
medical necessity for the health of the mother to use this procedure. 
Read it. Observe the silence. I understand the Justices' feelings on 
the issue of abortion. It is evident from your decisions. It is obvious 
from your position. But you can't ignore the facts. Don't ignore the 
facts, because they are clear. They are as clear as the sound of the 
people coming forward with their examples. It is crystal clear. There 
is no sound and there is no reason for a health exception. Take the 
obligation you have seriously because I can tell you, the Members of 
this body do. We take our constitutional obligations dead seriously. 
The weight of evidence is not just overwhelming, it is dispositive. 
Listen. Learn. Decide justly.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask unanimous consent that Senator 
Edwards be added as a cosponsor of my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I listened carefully to the arguments made 
by the Senator from Pennsylvania. I would say the vast majority of the 
arguments he made had nothing to do with my amendment. He has made 
arguments on behalf of the underlying bill, and that is his right. I 
defend his right to do it. But I come back to a discussion of my 
amendment.
  The Senator from Pennsylvania has argued that because we use the term 
``risk'' in this amendment that it is so hard to understand or define, 
it really does not present any kind of protection. Let me read it for 
the record. We say in this amendment we will prohibit all late-term 
abortions--that is, abortions after a fetus is viable--unless two 
medical doctors certify--and one has to be a nonattending physician, in 
other words, an expert brought in for consultation--that continuing the 
pregnancy would threaten the mother's life--that is fairly 
straightforward--or risk grievous injury to her physical health.

[[Page 5732]]

  The Senator from Pennsylvania says: I just don't understand what you 
could mean by ``risk grievous injury to her physical health.'' The fact 
of a pregnancy is a risk.
  That certainly is true. But to argue that each pregnancy is a risk of 
grievous physical injury is to overstate it and to ignore section 1535 
where grievous injury is defined.
  Keep in mind, the doctors who have to certify in writing that you are 
dealing with a viable fetus and there is a risk of grievous physical 
injury have their medical licenses on the line. Their right to practice 
medicine is on the line. If it is found they have misstated the facts 
concerning this pregnancy, they could lose their medical license. Do 
you think a doctor is likely to take that lightly? I don't. A doctor is 
likely to take that seriously.
  Then read what we say about grievous physical injury. We define it as 
follows: It means a severely debilitating disease or impairment, 
specifically caused or exacerbated by the pregnancy or an inability to 
provide necessary treatment for a life-threatening condition.
  There is a limitation which the Senator from Pennsylvania has not 
added into his argument. Listen to this limitation. The term grievous 
injury does not include any condition that is not medically diagnosable 
or--this is the important part--any condition for which termination of 
the pregnancy is not medically indicated.
  You have to link up the continued pregnancy and the grievous physical 
injury in order to justify this late-term abortion. That is a fact. 
That is clearly written.
  For the Senator to dismiss this and say, risk of grievous physical 
injury, that doesn't mean anything, any doctor would sign that, the 
doctor has his medical license on the line as to whether or not that 
fetus is viable, as to whether or not there really is a threat to the 
woman's life, as to whether or not there is a risk of grievous physical 
injury. His medical license is on the line, and it spells it out 
specifically in the amendment.
  To think some doctor is going to just say: I will just sign that for 
my buddy, the abortionist, I don't believe so. Both doctors have too 
much at stake.
  Let me go on to his underlying bill where he spent most of his time 
in argument. I understand it. The Senator from Pennsylvania feels very 
passionately about this issue. I know it. I have listened to him. I 
believe it, and I respect it. We see it differently, but I respect him 
for it.
  I have grown weary, and I think the people who prepare the 
Congressional Record have grown weary of our submitting into the Record 
a direct rebuttal of the statement he repeats on the floor over and 
over and over again. Show me one doctor, not an abortionist, but one 
doctor who tells you this is medically necessary.
  Well, I have already submitted them for the Record: The American 
College of Obstetricians and Gynecologists. They have said it. They 
have said this may not be the only procedure to save the life or 
preserve the health of a woman, but it may be the best, the most 
appropriate procedure in a particular circumstance. That is not good 
enough for the Senator from Pennsylvania.
  First, he is mistaken if he does not believe obstetricians and 
gynecologists are medical physicians. They are. You have to be a 
medical doctor, board certified, in order to be part of this American 
College, and they have said it. They have made it clear. They are not 
so-called abortionists, which is a term developed here as part of the 
debate. These are people who do many other things with their lives, 
working with women for their health as well as for the delivery of 
their children. They have said the Senator from Pennsylvania is just 
wrong.
  They are not alone. This has already been entered into the Record. I 
will not belabor the point. But Dr. Stewart from the University of 
California at San Francisco says the same thing. She says, after 
considering this procedure, this could turn out to be the best approach 
for some women facing very serious medical problems related to their 
pregnancy.
  The Senator from Pennsylvania went on to say, not one person 
testified this procedure was medically necessary. I hasten to remind 
him, we put it in the Record early this morning, not one person 
testified because this bill was not brought before a committee. This 
bill came directly to the floor without any hearings, without any 
testimony from anybody.
  I could stand here and say: Not one person testified on behalf of 
your amendment, not one doctor. You couldn't find one single doctor who 
testified on behalf of this bill, S. 3. That is technically correct 
because there was never a committee hearing.
  So let's make it clear: Not one doctor testified for or against S. 3. 
This amendment came directly to us without any committee testimony.
  Then the Senator from Pennsylvania spends a great deal of time 
arguing this procedure is harmful to women and those who are defending 
it--this is the procedure of his bill, nothing to do with my 
amendment--this procedure is harmful to women. I want to tell the 
Senator from Pennsylvania I have very limited expertise in anything. 
But before I came to the Senate, or to Congress, I was a practicing 
trial lawyer and spent many years defending doctors in medical 
malpractice cases, and suing them. I have been on both sides, 
representing plaintiffs and doctors who were defendants. So I know a 
little bit about medical malpractice.
  I will tell you this. Can you imagine in this day and age any doctor 
is going to take part in a procedure that the Senator from Pennsylvania 
sees as so clearly harmful to women? How crazy could you be to subject 
yourself to the liability of a woman suing you because you chose a 
procedure that was harmful to her, as opposed to one that was safer for 
her. That just doesn't pass the smirk test. Doctors think twice. We 
hear about defensive medicine. They think about procedures and what is 
the safest procedure, the procedure least likely to expose them to 
liability in a court of law.
  For the Senator from Pennsylvania to suggest these doctors ignore 
that and walk in and practice medicine that is harmful to women, 
without a concern, is to ignore the obvious. Medical malpractice cases 
are found in every State in the Union and substantial verdicts result 
from them. So I argue that common sense suggests if this were the most 
harmful procedure, the so-called partial-birth abortion, very few 
doctors would ever consider using the procedure and running the risk of 
exposing themselves to a medical malpractice case.
  I would like to, if I can for a few minutes, go back to my amendment 
because most of what the Senator from Pennsylvania had to say didn't 
relate to my amendment at all. Here is where I think we come down. The 
Senator from Pennsylvania has had laser-like intensity focusing on one 
abortion procedure. He is troubled by it; he is pained by it. It is 
clear from his voice that it affects him very much, and I respect him 
for that. Thank goodness people fight for their convictions, even if I 
disagree with him on this. Please, I say to the Senator, step back and 
look at my amendment in a larger context. I am not just prohibiting the 
procedure you find objectionable. I am prohibiting that procedure and 
all other abortion procedures, postviability. So if, instead of using 
the dilation and extraction--partial-birth abortion--there is an effort 
to use some other procedure to terminate abortion after a fetus is 
viable, it is prohibited by my amendment, except in two specific cases: 
where the life of the mother is at stake and where there is a risk of 
grievous physical injury.
  I suggest to the Senator if your goal in service on this issue is to 
limit the number of abortion procedures in America, reduce the 
likelihood of abortions being performed, you will achieve that goal 
more with my amendment than with your bill. Your bill is strictly 
focused on one extraordinary and rare procedure. Mine is focused on all 
procedures, postviability. You would have to say in fairness, just by 
the simple numbers of abortion procedures, my amendment is going to 
affect more abortion procedures and limit more abortion procedures than 
yours.

[[Page 5733]]

  Why am I willing to do this? Because despite the fact I am pro-
choice, I do believe, when it comes to postviability abortions, we 
really should draw a straight line.
  My wife and I have been blessed with three wonderful kids. It has 
been a long time since we had a new baby in the house, and a long time 
since I watched my wife grow large in pregnancy. But I can remember the 
seventh, eighth, and ninth months. Most fathers and husbands can. At 
that point in time, there is no doubt about it, your wife is about to 
have a baby and it is very visible and, in many cases, she is very 
great with child, as they say. I really believe in those cases you 
should not terminate a pregnancy, except under the most extraordinary 
of situations. That is why we spell it out. That is why we require two 
doctors to certify it in writing. That is why we say to these doctors: 
Your medical license is on the line if you misrepresent the facts of 
this pregnancy. That is pretty serious, and that is why people across 
the abortion spectrum, pro-choice, pro-life, have come to this 
amendment and said this is a reasonable approach.
  I am never going to convince my colleague and friend from 
Pennsylvania. He is passionately focused, laser-like focused on this 
procedure, and I will concede to him that, pre-viability, that 
procedure could be used under the Durbin amendment. I think those cases 
are rare. But I hope he will step back for a second and be honest about 
what this amendment could achieve. I think it is a positive thing. I 
think it is something many of us would feel makes real progress in 
dealing with this issue.
  Make no mistake, I have spoken to people on the phone today, some of 
the strongest pro-choice organizations. They don't want the Durbin 
amendment to pass because they feel, as you have described, that if you 
did that, it is just the beginning of an exception to Roe v. Wade. I 
don't think it is an exception that is inconsistent with Roe v. Wade. I 
think it says we are going to consider the health of the mother, but 
only in the most exceptional circumstances, where grievous physical 
injury is at issue.
  I might also add we did not include the phrase ``mental health.'' As 
Senator Collins, my cosponsor, said earlier, to say that a woman late 
in her pregnancy--the seventh, eighth, or ninth month--argues she is 
suddenly in depression and therefore a viable fetus that could survive 
should be terminated is something I cannot personally accept. I am 
sorry, I cannot accept that. I will concede the point that if a woman 
suffering from a serious mental illness is suicidal and her life may be 
at risk. That would be the most extreme case, but that would be the 
only linkage I can think of that would justify the termination of a 
pregnancy that late in the pregnancy. That is the only one that comes 
to my mind.
  So we have made this exception for physical health, grievous physical 
injury, or the life of the mother. I will not submit these statements 
again for the Record, but I believe ample evidence has been given as 
part of this debate that the obstetricians and gynecologists say do not 
pass the underlying bill, that medical doctors, such as Dr. Stewart, 
have written letters that suggest the same.
  I yield the floor.
  Mr. SANTORUM. Will the Senator yield for a question?
  Mr. DURBIN. Yes.
  Mr. SANTORUM. I want to make sure the Senator understands the 
question. I have not been asking about medically necessity. The quotes 
you have given me have said that it ``ought to be the best.'' Another 
quote was ``may be the best.'' I have not asked for someone's opinion 
on what ought to be or what could be. What I have asked for is an 
example. I wanted a fact circumstance to be provided as to where this 
would be the best, this would be appropriate, this would be medically 
indicated.
  Not in any of the letters I have seen entered into the Record, or in 
any testimony, has anybody come forward with a factual circumstance 
that would support the general statements that it ``may be.'' Well, it 
may be a lot of things, but the point is, there are no examples that 
support the ``may be.''
  All I have asked for--and I have not received a response--is an 
example for us to look at, to have peer-reviewed, and to determine 
whether there is in fact a situation that has heretofore not been put 
in the Record, which is an example of a medical condition that would 
indicate a partial-birth abortion would be indicated to deal with as 
the best alternative.
  Mr. DURBIN. If I may respond to the Senator, this is a statement from 
Viki Wilson of California in opposition to the bill. She tells of her 
pregnancy in 1994. She was expecting Abigail, her third child. 
Naturally, she was excited about this. It was 36 weeks into her 
pregnancy, when an ultrasound detected what all of the previous 
prenatal testing failed to detect--an encephalocele. Approximately two-
thirds of her daughter's brain had formed outside her skull. She says 
in this statement--and I will make it part of the Record:

       What I had thought were big, healthy, strong baby movements 
     were in fact seizures.
       My doctor sent me to several specialists, including a 
     perinatologist, a pediatric radiologist, and a geneticist in 
     a desperate attempt to find a way to save her. But everyone 
     agreed, she would not survive outside of my body. They also 
     feared that as the pregnancy progressed, before I went into 
     labor, she would probably die from the increased compression 
     in her brain.
       Our doctors explained our options, which included labor and 
     delivery, C-section, or termination of the pregnancy. Because 
     of the size of her anomaly, the doctors feared that my uterus 
     might rupture in the birthing process, possibly rendering me 
     sterile. The doctor also recommended against a C-section, 
     because they could not justify the risks to my health when 
     there was no hope of saving Abigail.
       We agonized over our options. Both Bill----

  Her husband----

       and I are medical professionals.

  She a registered nurse, he a physician, so they understood the 
medical risk.

       After discussing our situation extensively and reflecting 
     on our options, we made the difficult decision to undergo an 
     Intact D and E.

  Also known as partial-birth abortion. What I am saying to my friend 
and colleague from Pennsylvania is this is an example, a case, where 
she had three options. Partial-birth abortion was the third and chosen 
for medical reasons, reasons for which she said in the statement.
  I ask unanimous consent that the statement be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     Statement of Viki Wilson, California, in Opposition to S. 3

       I urge you to oppose S. 3. I understand that this bill is 
     very broad and would ban a wide range of abortion procedures. 
     Mine is one example of the many families that could be harmed 
     by legislation like this.
       In the spring of 1994, I was pregnant and expecting 
     Abigail, my third child, on Mother's Day. The nursery was 
     ready and our family was ecstatic. My husband, Bill, an 
     emergency room physician, had delivered our other children, 
     and would do it again this time. Jon, our oldest child would 
     cut the chord. Katie, our younger, would be the first to hold 
     the baby. Abigail had already become an important part of our 
     family. At 36 weeks of pregnancy, however, all of our dreams 
     and happy expectations came crashing down around us. My 
     doctor ordered an ultrasound that detected what all of my 
     previous prenatal testing had failed to detect, an 
     encephalocoele. Approximately two-thirds of my daughter's 
     brain had formed outside her skull. What I had thought were 
     big, healthy, strong baby movements were in fact seizures.
       My doctors sent me to several specialists, including a 
     perinatologist, a pediatric radiologist and a geneticist, in 
     a desperate attempt to find a way to save her. But everyone 
     agreed, she would not survive outside my body. They also 
     feared that as the pregnancy progressed, before I went into 
     labor, she would probably die from the increased compression 
     in her brain.
       Our doctors explained our options, which included labor and 
     delivery, c-section, or termination of the pregnancy. Because 
     of the size of her anomaly, the doctors feared that my uterus 
     might rupture in the birthing process, possibly rendering me 
     sterile. The doctors also recommended against a c-section, 
     because they could not justify the risks to my health when 
     there was no hope of saving Abigail.
       We agonized over our options. Both Bill and I are medical 
     professionals (I am a registered nurse and Bill is a 
     physician), so we understood the medical risks inherent in 
     each of our options. After discussing our situation 
     extensively and reflecting on our options, we made the 
     difficult decision to undergo an Intact D and E.

[[Page 5734]]

       It was important to us to have Abigail come out whole, for 
     two reasons. We could hold her. Jon and Katie could say 
     goodbye to their sister. I know in my heart that we have 
     healed in a healthy way because we were able to see Abigail, 
     cuddle her, kiss her. We took photos of her. Swaddled, she 
     looks perfect, like my father, and Jon when he was born. 
     Those pictures are some of my most cherished possessions.
       The second reason for the intact evacuation was medical: 
     Having the baby whole allowed a better autopsy to be 
     performed, to give us genetic information on the odds of this 
     happening again.
       Losing Abigail was the hardest thing that has ever happened 
     to us in our lives, but I am grateful that Bill and I were 
     able to make this difficult decision ourselves and that we 
     were given all of our medical options. There will be families 
     in the future faced with this tragedy. Please allow us to 
     have access to the medical procedures we need. Do not 
     complicate the tragedies we already face. Oppose S. 3.

  Mr. SANTORUM. Mr. President, the fact is, Viki Wilson testified at a 
Senate Judiciary Committee hearing in November of 1995. Viki Wilson, as 
the Senator from Illinois said, was in her ninth month of pregnancy 
when she received an abortion. According to Mrs. Wilson's testimony, 
the death of her daughter Abigail was induced inside the womb:

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

  At this Judiciary Committee hearing, Senator Hatch suggested to Mrs. 
Wilson that her abortion was not a partial-birth abortion as defined by 
the bill. Mrs. Wilson responded:

       It is true, if you take it verbatim. You know, my daughter 
     did die in the womb.

  That is not an example, No. 1, of partial-birth abortion because she 
did not have one and, No. 2, that she is not a medical professional. 
She is a registered nurse, and as my wife is a nurse, my mom is a 
nurse, please do not get me wrong, nurses are wonderful health 
professionals, and I have a tremendous amount of respect for them. I 
love them personally. To suggest that in her testimony, which you just 
heard--and it was not a partial-birth abortion, but even if it was, to 
suggest that her testimony was somehow a decision by the medical 
community or a physician putting forward a case by which the physician 
said this was the best option, this was medically necessary, and that 
other options were less desirable, this just does not make the case, 
which I keep coming back to the point that the case has not been made.
  Some of my colleagues say: Why do you keep asking this question? 
Someone is going to come forward with something. After 7 years, you 
figure out no one is going to come forward because there are no cases, 
and no medical professional worth their salt would come forward and say 
something they know is not true because they are going to be reviewed 
by umpteen obstetricians and gynecologists who will come forward with 
the medical peer-reviewed research that indicates this procedure is not 
medically indicated, that it is not necessary, and it is not in the 
best health interest of the mother.
  It is brutal, and as the Senator from Tennessee, our leader, said 
today, the only advantage he can think of to a partial-birth abortion 
is the certainty of a dead baby. That is the advantage. It is that you 
know by thrusting those scissors into the base of the skull and 
feeling--because the doctor has the baby in his or her hand. I just 
find it to be remarkable, from the standpoint of a physician who can 
hold a live baby who would otherwise be born alive, a baby who could 
survive outside the womb, in many cases, and while holding that child, 
take the sharp, long Metzenbaum scissors and thrust it into the base of 
the baby's skull.
  I know many people have felt living beings die in their presence, 
whether it is a pet or a variety of different living animals, and the 
feeling when life rushes out, you know it. You feel it. The baby is 
moving. All of a sudden, as Brenda Shafer, the nurse who testified, 
said, the baby's arms and legs spring out, tensing up because of the 
shock to the system and then falling limp. Life evaporated, leaving 
this little child. And then to take those scissors and open them up--
open them up--to stretch out the base of the skull, as the Senator from 
Tennessee described, to rupture the cranial cavity, to create a hole 
big enough to insert a suction catheter.
  Why? Why is this procedure needed? I keep coming back to the 
question. It has not been answered because there is no answer. That is 
why the health exception is not needed, because it is outside the scope 
of Roe v. Wade, and we have clarified the other problem the Supreme 
Court noted, which is the vagueness of definition. We have a much more 
detailed definition. It cannot be confused.
  The Senator from California keeps coming to the floor and suggesting 
other medical procedures would be covered by this current definition. 
Again, I ask the Senator from California to come to the floor and tell 
me what procedure would be covered by this definition. So far, the 
answer to that has been silence.
  On the two points the Court had trouble with the Nebraska statute, 
there has been no response. I suggest there is no response because we 
have solved these problems, and that is why this legislation is 
constitutional.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. DeWINE. Mr. President, this is the third time I have taken the 
opportunity to talk about partial-birth abortion, and each time I have 
addressed the Members of the Senate, I have tried to cite some of the 
medical experts in this field.
  It has been pointed out that, with the exception of one Member of the 
Senate, we are not doctors. I certainly am not a doctor, but I have 
tried to cite the experts and have tried to help build a record for 
anyone who looks at the proceedings to help them understand what the 
basis for the Senate's ultimate decision will be. I want to continue 
that practice tonight.
  It is certainly true, as has been pointed out on the Senate floor, 
that we did not hold hearings on this bill, but over the last few 
years, we have had a series of hearings in both the Senate and the 
House of Representatives on this very issue. We have heard many 
witnesses. We not only have had the opportunity to hear the witnesses 
in the Senate and the House in the Judiciary Committees, but we also, 
of course, have had the opportunity to read journals, read news 
articles, and other sources of information.
  Very briefly, what I would like to do tonight is add to some of the 
citations I have already made and talk about the question that my 
colleagues have been talking about, and that is whether or not partial-
birth abortion is ever medically indicated. I submit to my colleagues 
the evidence is very clear that partial-birth abortion is not medically 
indicated. It is never medically indicated. Therefore, a medical 
exception is simply not needed.
  It is important to cite what several OB/GYN doctors have said about 
this horrific procedure. These medical doctors, these experts, will 
tell us this abortion procedure is brutal, it threatens the life of the 
mother, and it is just plain unnecessary and inhumane.
  I will take a few minutes tonight to read to my colleagues some of 
the testimony from doctors who, for years, have been saying this 
procedure is, in fact, wrong. In a House of Representatives hearing on 
September 27, 1995, these doctors testified that partial-birth abortion 
is not sound science. I ask my colleagues to listen to what several of 
them had to say.
  First, Dr. Donna Harrison, then the chair of the Department of 
Obstetrics and Gynecology at the Lakeland Medical Center in Michigan, 
stated:

       There is no data or any proposed reliable data to show that 
     this has a lesser incidence of maternal morbility or 
     mortality than the standard prostaglandin termination. 
     Indeed, any surgeon can tell you that when you put a sharp 
     instrument into a body cavity, there is always the risk of 
     perforating that organ. As an obstetrician, I can testify 
     that this procedure has no medical indication over standard, 
     recognized and tested procedures for terminating a pregnancy.
       It is a hideous travesty of medical care and should rightly 
     be banned in this country.

  Dr. Pamela Smith, former Director of Medical Education, Department of 
OB/GYN, at Mt. Sinai Medical Center in

[[Page 5735]]

Chicago and a member of the Association of Professors of Obstetrics, 
had this to say:

       Partial-birth abortion is not a standard for care for 
     anything. In fact, partial-birth abortion is a perversion of 
     a well-known technique . . . used by obstetricians to deliver 
     that is considered to impose a significant risk to maternal 
     health when it is used to deliver a baby alive, suddenly 
     become the ``safe method of choice'' when the goal is to kill 
     the baby? In short, there are absolutely no obstetrical 
     situations encountered in this country, which require a 
     partially delivered human fetus to be destroyed to preserve 
     the life or health of the mother.
       When I described the procedure of partial-birth abortion to 
     physicians who I know to be pro-choice, many of them were 
     horrified to learn that such procedure was even legal.

  Dr. Nancy Romer, then a Clinical Associate Professor at Wright State 
University and Chair of the Department of Obstetrics at Miami Valley 
Hospital in Ohio, said this:

       There is simply no data anywhere in the medical literature 
     in regard to the safety of this procedure. There is no peer 
     review or accountability of this procedure. There is no 
     medical evidence that the partial-birth abortion procedure is 
     safer or necessary to provide comprehensive health care for 
     women.

  To add to this, Dr. Lewis Marola, then Chair of the Department of 
Obstetrics at St. Clare's Hospital in Schenectady, NY, said the 
following:

       The conversion of a fetus presenting a vertex to a breech 
     position, as in the partial-birth abortion, is capable of 
     causing an abrubtion of the placenta and amniotic fluid 
     embolism. This is a dangerous and life-threatening situation. 
     Never, ever, in our 30 years of practice, have my colleagues 
     or I seen a situation which warrants the implementation of 
     partial-birth abortion. Personally, I cannot imagine why a 
     practitioner would want to resort to such barbaric techniques 
     when other, recognized methods are available.

  Dr. Joseph DeCook, once a Fellow at the American College of 
Obstetricians and Gynecologists, said the following at a press briefing 
in 1996:

       Reaching into the uterus to pull the baby feet first 
     through the cervix--the second step [of the procedure]--``is 
     a very dangerous procedure,'' ``frightening'' because of the 
     chance that it might ``tear the uterus.'' This is the 
     ``reason it was abandoned 30 or more years ago.'' There is 
     also the danger of ``perforating the uterus'' with the 
     instrument used to grab the baby's leg. Such a tear or 
     perforation could result in severe hemorrhage, necessitating 
     immediate hysterectomy to save the life of the mother.

  Dr. Cutis Cook, from the Michigan State College of Human Medicine, 
said this:

       To my knowledge, and in my experience, this particular 
     procedure described as partial-birth abortion is never 
     medically necessary to preserve the life or future fertility 
     of the mother and may, in fact, threaten her health or well-
     being or future fertility. In my opinion--and, I think, in 
     the opinion of the medical literature and other specialists 
     in my field--the fact remains that there are choices and 
     there are alternatives to the partial-birth abortion 
     procedure that do not require the use of what has now been 
     demonstrated as a potentially dangerous and completely 
     unstudied and unnecessary procedure.

  I can go on, but the testimony from medical doctors is very clear. 
They know in their heart and in their minds that this procedure is not 
appropriate. It is never necessary. I would like to conclude tonight 
with what Dr. Joseph DeCook once said. He said that the partial-birth 
abortion procedure ``sounds like science fiction. It ought to be 
science fiction.''
  I think that says it all. The testimony from these medical doctors is 
very clear. I have cited other doctors the other two times I have been 
in the Chamber, and when I come back later, I will cite other doctors. 
But the evidence is abundantly clear that partial-birth abortion, as my 
colleague from Pennsylvania has pointed out, is never medically 
indicated. At no time have the proponents of this procedure been able 
to come to the floor and cite any specific example where anyone has 
been able to say that it was truly medically indicated.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I pay tribute to the Senator from Ohio 
who was in the Chamber until about this hour last night laying out very 
clearly, very succinctly, the legal, moral, ethical, and medical 
evidence as to why this procedure should be banned and why this Senate 
should feel comfortable, from all of those perspectives, in passing 
this legislation.
  He has done an outstanding job, a thorough job. He has been an 
invaluable ally in the Senate in making the case, hopefully convincing 
case, to hopefully a clear majority of our colleagues, that we should 
proceed, maybe as early as tomorrow, in passing this legislation.
  I thank the Senator from Ohio for his outstanding work and his 
obvious commitment to this cause.
  I wanted to respond to the Senator but I got sidetracked. The Senator 
from Illinois mentioned something at the end of his talk, and I focused 
on that and I forgot to respond to a couple of other points he made 
with respect to his amendment.
  I focus on the two problems, again, and respond to his defense of his 
amendment. He defended his amendment and spent the entire time talking 
about the grievous physical injury, grievous injury that could result, 
that would be the exception for his ban on late-term abortions.
  I have concerns because of the issue of risk, and I don't want to 
repeat that. But what he did not talk about, as big or if not a bigger 
hole in this legislation, is the whole issue of viability. I believe 
the Senator--and I will check the record on this, and if I am wrong, I 
apologize. I believe the Senator from Illinois suggested that the 
physician certify that a child is not viable, and if there was a 
determination that the child was viable, he could lose his license. I 
don't see that in the legislation. I don't see a second doctor 
overseeing the issue of viability. It is clear from the reading of the 
language that the second doctor can review the risk of serious injury 
but is not responsible under the legislation for reviewing the issue of 
viability.
  So we have, again, before we even get to the issue of injury or 
health risk, we have the issue of the abortionist determining whether 
the baby about to be aborted is viable. Since most partial-birth 
abortions and most abortions, generally, occur prior to viability, and 
most abortions, even late-term abortions, occur in the 20th, 26th, 27th 
week, very few occur 30-plus weeks where viability rates are very high. 
We are talking here about giving the abortionist, certainly in the case 
of partial-birth abortions, an unreviewable decision that even in the 
cases of 35 weeks there may be--I have not looked at the literature 
because it is, I agree, a rare circumstance--I suggest there are 
probably some instances where you can conclude the child is not viable 
for some reason, even at that stage.
  What the Senator from Illinois has done is create a standard of 
viability that is not reviewable, and certainly with the case of 
partial-birth abortions, and I know his amendment purports to cover 
more than that, it covers even a very small subset of those abortions 
that we are talking about.
  Mr. DURBIN. Will the Senator yield?
  Mr. SANTORUM. I am happy to yield.
  Mr. DURBIN. At the risk of reading what has been read many times:

       It shall be unlawful for a physician to intentionally abort 
     a viable fetus unless the physician prior to performing the 
     abortion----
       (1) certifies in writing . . .

  The premise of this amendment is viability.
  Now, I will concede the point, there are fetuses in the 35th week and 
later that are not viable, will never survive outside the womb. But the 
premise here is the fact that you must be dealing with a viable fetus 
in order for this prohibition to apply and for the exceptions to be 
applied, as well.
  For the Senator to continue to ignore this clear language, I have to 
say I am prepared to defend what is written here. I am not prepared to 
defend what the Senator refuses to read.
  Mr. SANTORUM. Reclaiming my time, is the Senator from Illinois 
stating that legislation requires a second opinion on the issue of 
viability?
  Mr. DURBIN. It says:

       An independent physician who will not perform or be present 
     at the abortion and who was not previously involved in the 
     treatment of the mother certifies in writing that, in his

[[Page 5736]]

     or her medical judgment based on the particular facts of the 
     case, the continuation of the pregnancy would threaten the 
     mother's life or risk grievous injury to her physical health.

  This is not your so-called abortionist. This is an independent 
physician.
  Mr. SANTORUM. I did not hear the word ``viable'' in that second 
definition. There was no term----
  Mr. DURBIN. May I ask the Senator a question? The Senator is 
understood to be a practicing attorney; is that true?
  Mr. SANTORUM. That is correct.
  Mr. DURBIN. I ask the Senator to pause and think about that for a 
moment. If a doctor called you and said: Attorney Santorum, there has 
to be a second opinion here on whether this mother's pregnancy should 
be terminated postviability, late term, what do you suggest?
  I think the first thing you would ask is: What is the penalty if you 
are mistaken?
  Oh, I could lose my license, face a penalty of $100,000 or $250,000.
  I think Attorney Santorum and Attorney Durbin would say to this 
doctor: Wait a minute. Let me sit down and talk to you. Are you 
prepared to stand behind the fact that this is a viable fetus? Are you 
prepared to stand behind the fact that there is a threat to life here? 
Because if you are not, stay away from us.
  Mr. SANTORUM. Reclaiming my time, you ask: Are you prepared to stand 
behind the fact this is a viable fetus? Yet your amendment does not say 
that. Your amendment does not say the second physician has to certify 
to viability.
  What your amendment says is they have to certify that there is a 
risk--that word that I have trouble with, a ``risk,'' a risk, not a 
substantial risk, not a verifiable risk, but a risk of grievous injury.
  So your amendment does not deal with the independent physician 
second-guessing the determination by the doctor that this is a viable 
fetus. So we do not even get to the issue of risk if the doctor says it 
is not viable. If the doctor says it is not viable, no one is looking 
over his shoulder because your ban does not apply. So nobody is coming 
in and saying: Well, I understand you can say you are heavy handed with 
this doctor. We have a doctor, Dr. Hern, who will certify under oath 
that every pregnancy is a risk, that he can look at any pregnancy and 
find a substantial risk, and the nexus you spoke about under the 
legislation. This is the person who read the entire text of your 
amendment and said he is willing to do so in every circumstance.
  Setting that aside, we do not even get to that if the doctor 
determines no viability, correct? Is that correct?
  Mr. DURBIN. I say that it is a condition to even----
  Mr. SANTORUM. The condition is not a reviewable condition.
  Mr. DURBIN. It is certainly reviewable.
  I say to the Senator from Pennsylvania, having sat across the desk 
from many physicians whom I represented, and sued, believe me, trust 
me, they are not going to stick their neck out, put their medical 
license on the line, unless there is certainty in their mind that they 
comply with the statute.
  The suggestion by the Senator----
  Mr. SANTORUM. The Senator from Illinois just said the statute does 
not apply if the physician certifies it is not viable. So the statute 
does not apply if the license is not on the line. But your statute does 
not say that. You may want to say that, but it does not say that.
  Mr. DURBIN. I say to the Senator, I hope you understand that you and 
I come to this from a different perspective. Your perspective is one 
abortion procedure. You are prepared to not accept, but to tolerate 
other destructions of the fetus in abortion, but not this one, which 
troubles you greatly.
  I don't deal with that aspect. I deal with postviability, that is, 
late-term abortions, of all types. And there is the distinction.
  If the Senator is saying to me: ``You do not cover fetuses that are 
not viable,'' guilty as charged. This amendment does not address the 
fetus that is not viable.
  Mr. SANTORUM. I appreciate that. Let me reiterate for the record, I 
do not question--and I mean this with all sincerity--I do not question 
the sincerity of the Senator from Illinois. I know because many on his 
side have voted against his amendment who agree with him on the 
position of abortion. So I truly do recognize the Senator is attempting 
to find some middle ground.
  With all due respect, I just don't believe you have gotten there, but 
I do not question you have attempted to do so.
  The point I am trying to make is the whole operation of your statute 
does not apply unless the physician claims viability. If the physician 
doesn't claim viability, then your statute doesn't apply. I am a 
physician. I say--and under the Supreme Court a physician can abort a 
child under any circumstances for any reason up until the time of 
separation. So I have no legal liability out there. Outside of your 
amendment, I have no concern about my license, a lawyer, anything.
  So all I have to say is this child is not viable. If I make the claim 
this child is not viable--I don't care if it is 39 weeks and 5 days. If 
I say it is not viable, your statute does not apply. If your statute 
does not apply, I am in the clear. So that is the concern I have, that 
you leave the determination of viability to the physician.
  Mr. DURBIN. Can I ask--at least make a point here for the Senator 
from Pennsylvania? If he would be kind enough to read section 1532 of 
the penalties, under offenses: First offense, section (b), second 
offense, section (c). Note that it says:

       Upon a finding by the court the respondent in an action 
     commenced under subsection (a) has knowingly violated a 
     provision of this chapter, the court shall notify . . .

  And it goes on to say medical license at stake, fine at stake.
  Now, if you will turn back to read section (a) you will find 1531, 
section (a) includes viability of fetus.
  So if a doctor has misrepresented--for example, if there is medical 
evidence the fetus was viable and the doctor went ahead and performed 
an abortion, arguing, ``Well, it wasn't viable,'' and in so doing has 
misrepresented the medical facts, he can have his license revoked and 
face the penalty. That is what it says, section (a). It doesn't go down 
to subsection (1) and (2); it says subsection (a), which includes 
viability of the fetus.
  What we are driving at is this, I would say to the Senator from 
Pennsylvania. Under this language I don't think I am going to get 
endorsed by any medical group that is going to stand up and say what a 
great amendment, Senator Durbin, because it puts an extraordinary 
burden on doctors who want to be involved in these abortions. But I 
think that burden is merited when we are dealing with these particular 
circumstances.
  Mr. SANTORUM. I would just suggest to the Senator from Illinois, 
having read this, having read the reference--not criminal but civil 
penalties could apply--it still leaves viability, No. 1, undefined; 
and, No. 2, solely at the discretion of the abortionist. You can say 
there is other evidence. But particularly when most of these abortions 
are performed, most late-term abortions are performed--the question of 
viability is a percentage. You can talk to most obstetricians and they 
will tell you the determination of viability is very difficult. 
Frankly, you leave it unreviewable from the standpoint of the act.
  You say someone could bring a suit or someone could bring charges. 
The question is, Who would bring the charges? That is another story. 
But nevertheless, someone could. But to be able to prove a child is 
viable when you have up through early 30 weeks a percentage that are 
not, I think is a very steep task, and one that would not, I believe, 
dissuade. Certainly in the area where most late-term abortions are 
performed, the percentage is high enough that any abortionist could 
come forward and say this child, I just didn't believe it could live, 
and that as long as they did so with a reasonable judgment, you have no 
opportunity. You have no standard. You really do

[[Page 5737]]

leave this very much wide open. I would just argue it does not 
accomplish what you want.
  Again, there may be a handful of abortions that would fall under this 
in terms of a court or somebody saying because of the advanced--38, 39, 
37 weeks we would have--there is a presumption of viability. But there 
is no presumption of viability in this statute. There is no presumption 
of viability, I believe, in any statute I am aware of. So if there is 
no presumption, then you have a very difficult task proving viability 
when you are not the physician at the time, there, doing the procedure.
  Even if we get past the viability issue, which I believe we have not 
gotten past, you have this whole issue of risk of grievous injury to 
her physical health. I would again argue that the word ``risk'' leaves 
open a wide area, a wide berth for opportunity for physicians to get 
around this problem.
  I just refer you to not just Warren Hern, but we have other 
physicians, other abortionists who have come forward and said they 
would come forward certifying that, under your statute, they read your 
language and said they would feel comfortable under that language. I 
suggest there are still problems here.
  Again, I respect the Senator for his desire to deal with this issue, 
but I just don't believe his amendment hits the mark.
  Mr. President, I am going to depart from conversation on the Durbin 
amendment and I will not talk anymore about it this evening. If the 
Senator wants to stay some more and talk about it, I am just going to 
talk generally on the bill.
  I do not want to tell the Senator it is 8:30, if he wants to go home, 
he can go home, but I am going to make just some general comments on 
the bill. Then I intend to wrap up.
  If the Senator would like to make another comment for a few minutes? 
OK. Then I will just proceed.
  I will be brief because I know the Presiding Officer has been in the 
chair a long time and we have students here who want to get out before 
9 o'clock so they can be in class tomorrow morning, so I want to make 
sure they are not deprived of their educational opportunities. I will 
do my best to finish before 9 o'clock.
  When I came to the floor years ago to debate this issue, we talked a 
lot about the impact of abortion in this country; as Senator Brownback 
said earlier, the cheapening of the value of human life that has 
occurred as a result of legalized abortion. That was amplified greatly 
by this particular procedure, this brutal procedure in which the child, 
a living child is all but born, 3 inches from legal protection under 
the Constitution, and then treated so brutally, so harshly.
  I talked about the culture and how the culture is implicated in this, 
and how the medical profession is implicated in this. We hear so much 
talk about obstetricians wanting to keep these legal, but you would be 
hard-pressed in many communities to find obstetricians because of legal 
liability and all the problems associated with that.
  In fact, the indication I talked about a few years ago was a classic 
case in point of obstetricians' insensitivity to life, compounded with 
their fear of legal liability. It is a pretty potent combination for 
any child with a disability in utero. It leads a lot of doctors to head 
out of town and not want to deliver children with any kind of fetal 
abnormality. Mothers who have children with fetal abnormality really do 
have trouble finding doctors who will treat because of the fear of 
litigation and because of this sense that, well, you know, let's just 
have an abortion. You don't want to be hassled with this child who may 
have multiple difficulties or problems. Certainly I don't want to have 
to deliver a child who has multiple problems because you can blame me 
for some of this, or I can be dragged into lawsuits.
  So we have a real coarsening, from both the litigation end and, I 
would argue, from the abortion end of this issue dealing with the very 
children the other side uses to legitimize or attempt to legitimize the 
procedure of partial birth.
  For these hard cases--these hard cases are not cases where the 
woman's life or health is in danger, but where the child's prognosis is 
poor because of multiple abnormalities--trisomy 13 was one example, 
aencephaly was, I think, another example, or hydrocephaly. There are 
all sorts of examples out there where children who have very severe 
birth defects are sort of shoved aside by our health care system, 
because of insensitivity to life compounded with the fear of legal 
liability, the one such case which I talked about in great detail was 
the case of Donna Joy Watts. Donna Joy came here to the Senate. In 
fact, her mother sat up in the galleries. Donna Joy was not allowed to 
sit in the galleries because she wasn't old enough. Under the rule, we 
were not permitted to bring her into the gallery.
  She is a little girl who is a true miracle.
  Very briefly, 7 months into her pregnancy, Lori Watts and her 
husband, Donny, learned through a sonogram that their child would not 
be normal. She went to see a genetic counselor. Unfortunately, there 
are far too many genetic counselors in this country. The genetic 
counselor quickly referred her for an abortion saying that their child 
had hydrocephalus, which is water on the brain; and that as a result of 
the water buildup, brain development was not normal because of pressure 
on the brain. As a result, their child would either die shortly after 
birth or would be living a ``horrible life.''
  One of these genetic counselors suggested what would be a partial-
birth abortion.
  They didn't know that they were being referred for an abortion when 
they were referred to the doctor. But they were. They rejected that 
option. Through their faith and through their love of their child in 
the womb, they made the decision that if their child, Donna Joy, was 
hurting and was sick, they would act like parents who have a child that 
is hurting and sick. You do everything you can to help your child. It 
is a natural parental reaction. It is a very difficult reaction. It is 
very difficult to deal with these circumstances. But it is the instinct 
to first want to see what you can do to help your child, even if things 
look hopeless.
  I have given the example many times. When parents find out their 7-
year-old is stricken with leukemia which may be fatal, or diagnosed as 
fatal, I don't think the immediate reaction of most parents is, well, 
let us execute him to put him out of his misery. The immediate reaction 
is, What can we do to fight? What can we do to help this child survive? 
How can we rally around him or her to fight this problem that has 
confronted our family? Thankfully, many parents respond like Donny and 
Lori Watts. They were advised to see a specialist in high-risk 
obstetrics. I will not go through all of the details, but I can tell 
you that they went to hospitals and practice after practice. Practices 
simply wouldn't see them. They wouldn't see Lori because of her high-
risk pregnancy and because of high risk in the sense that their 
daughter had severe abnormalities.
  Eventually, they were able to find a doctor at the University of 
Maryland who agreed to monitor the pregnancy. And through a C-section, 
Donna Joy was born on November 26, 1991. She had very serious health 
consequences.
  This is a picture of her. You can see the size of her head. It was 
large as a result of the hydrocephalus.
  The Watts family lives in Greencastle, Pennsylvania.
  Seven months into her third pregnancy, Lori Watts learned that her 
child would not be ``normal.'' Through a sonogram, Lori and her husband 
Donny learned that their child had a condition known as hydrocephalus--
an excessive amount of cerebrospinal fluid in the skull, also known as 
``water on the brain.''
  Lori's Ob-Gyn made an appointment for her to see a doctor billed as a 
``genetics counselor'' at a clinic. When Lori Watts phoned the clinic 
to get directions and ask what they planned to do, the staff member 
told her that most hydrocephalic ``fetuses'' do not carry to term so 
they would terminate

[[Page 5738]]

the pregnancy. When she asked how they could do an abortion so later in 
the pregnancy, she was told that the doctor could use a ``skull-
collapsing'' technique--what we refer to as a partial-birth abortion. 
Appalled, Lori promptly canceled the appointment. When Donny Watts 
demanded to know why they had been referred to a facility that performs 
abortions, their Ob-Gyn explained that he thought he had referred them 
to a different doctor at that same clinic--a doctor who would have 
suggested ways to keep the child alive. The Wattses were stunned to 
realize that the clinic offered both life and death--depending on which 
staff doctor you happened to speak with.
  Their Ob-Gyn then advised the Wattses to see a specialist in high-
risk obstetrics. They never expected the cavalier treatment they 
received from the medical community. Doctors at Johns Hopkins 
University, Union Memorial Hospital, and the University of Maryland 
Hospital in Baltimore were quick to dismiss their baby's chances for 
survival and even suggested that if the child lived, she would be ``a 
burden, a heartache, a sorrow.'' According to Donny Watts, ``They 
wouldn't even give her a chance.'' Instead, they urged Lori to abort 
the baby to protect her own health and future fertility. Medical staff 
at Johns Hopkins would not even see Mrs. Watts. When she explained her 
situation over the telephone, she was urged to have an abortion. The 
Watts family received similar treatment from a perinatologist and a 
specialist in high-risk and severe abnormalities at Union Memorial 
Hospital. This perinatologist advised Mrs. Watts to have an abortion 
and claimed that without a neo-natal intensive care unit NICU, Union 
Memorial could not care for this sort of child. After making her own 
inquiries, however, Mrs. Watts learned that Union Memorial did in fact 
have a NICU. The Wattses next appealed to the University of Maryland 
high-risk obstetrics clinic, where the attending physician told Mrs. 
Watts she needed an abortion because the ``fetus'' had occipital 
meningoencephalocele--part of the brain was developing outside the 
skull.
  Still determined to save their child, Lori and Donny Watts continued 
educating themselves about their baby's abnormalities and searching for 
a doctor who would perform the delivery. Finally, another doctor at the 
University of Maryland agreed to monitor the pregnancy. Through a 
Caesarean delivery, the Watts' third daughter, Donna Joy, was born on 
November 26, 1991.
  Yes, Donna Joy was born with serious health problems. And like any 
loving parents, the Wattses expected the medical community to work 
tirelessly to help their new baby survive. They were greatly 
disappointed to discover that many members of the hospital staff 
treated Donna Joy with the same apathy, pessimism, and callousness 
after her birth. For instance, the Wattses were alarmed that doctors 
waited three days to implant a shunt to drain excess fluid from the 
baby's head. In prenatal consultations with a perinatologist, they had 
learned that the shunt should have been implanted as soon after the 
delivery as possible.
  To add insult to injury, hospital staff made no attempt to feed Donna 
Joy in the traditional sense. Doctors at the University of Maryland 
believed that Donna Joy's deformities would prevent her from sucking, 
eating or swallowing. Because of a neural tube defect that made feeding 
her difficult, Donna Joy received only IV fluids for the first days of 
her life. Lori refused to give up. Initially, she literally fed breast 
milk to Donna Joy with a sterilized eye dropper, to provide sustenance. 
Then, at two weeks of age, the shunt failed, and Donna Joy was 
readmitted to the hospital for corrective surgery. When a tray of food 
was delivered to her hospital room by mistake, Lori had a brainstorm. 
She mashed the contents together and created her own food for the 
newborn with rice, bananas, and baby formula. She fed this mixture to 
the baby one drop at a time with a feeding syringe.
  Unfortunatley, Donna Joy's fight for life became even more 
complicated. At two months of age, she underwent an operation to 
correct the occipital meningoencephalocele. At four months, a CT scan 
revealed that she also suffered from lobar-holoprosencephaly--a 
condition which results from incomplete cleavage of the brain. She was 
also suffering from epilepsy, sleep disorders, and continued digestive 
complications. In fact, the baby's neurologist conveyed to a colleague, 
``We may have to consider placement of a gastronomy tube in order to 
maintain her nutrition and physical growth.'' The baby was still 
hydrocephalic and could not hold her head up. Furthermore, the baby was 
suffering from apenea--a condition in which spontaneous breathing 
stops.
  Then, at eighteen months of age, Donna Joy had another brush with 
death. She had suffered from encephalitis--inflammation of the brain--
throughout the summer. Donna Joy developed amnesia, tore at her face 
and eyes, and could not talk or walk. Her recovery was--miraculously, I 
would suggest--facilitated when Lori Watts popped a tape into her VCR 
at random. The tape happened to contain an episode of the television 
show Quantum Leap in which the show's star, Scott Bakula, sings a song. 
Upon hearing Bakula's rendition of ``Somewhere in the Night,'' Donna 
Joy showed the first signs of responsiveness in months.
  At two years of age, Donna Joy had already undergone eight brain 
operations. Although most of these occurred at the University of 
Maryland Hospital, in one case doctors had to perform surgery at the 
child's bedside with local anesthesia. Finally, the family received 
good news about Donna Joy's prospects. Donna's neurologist, who re-
examined the child after a seizure in September, 1996, noted that at 
four and one half years, Donna Joy could speak, walk, and handle 
objects fairly well. He also thanked a colleague `` . . . for the kind 
approval for follow-up and allowing me to re-assess this beautiful 
young child, who is remarkably doing very well in spite of such a 
significant malformation of the brain.''
  Before Donna Joy moved to Pennsylvania, Maryland Governor Parris 
Glendenning honored her with a Certificate of Courage commemorating her 
fifth birthday. Mayor Steve Sager, of Hagerstown, Maryland, proclaimed 
her birthday Donna Joy Watts Day. Members of the Scott Bakula fan club 
have sent donations and Christmas presents for the Watts children. 
People from around the world who have learned about Donna Joy on the 
Internet have also been moved to write and send gifts. But perhaps most 
important, the Watts' determination has inspired a Denver couple to 
fight for their little boy under similar circumstances.
  There is a lot of talk on the other side about partial birth 
abortions being necessary to preserve future fertility--indeed, one 
doctor cautioned Lori Watts that her fertility could be compromised if 
she chose not to have a partial birth abortion. Well, in June 1995 Lori 
and Donny Watts experienced the joy of welcoming another child--
Shaylah--into the family. Like many children, Shaylah has asthma, but 
is otherwise healthy. Furthermore, Lori Watts experienced no similar 
complications with this pregnancy.
  The story of Donna Joy Watts continues to inspire the public. The 
child that nobody gave a chance to live is now 11 years old. She has 
outlived her original prognosis by a decade. She continues to battle 
holoprosencephaly, hydrocephalus, cerebral palsy, epilepsy, tunnel 
vision, and Arnold-Chiari Type II Malformation--which prevented 
development for her medulla oblongata.
  Donna Joy visited my office just a few weeks ago with her mother, 
father, and two of her sisters. She is now being home schooled with her 
sisters. She is very active outside of school too. She has taken a gym 
class where her favorite activities are running track and playing 
soccer. While she may tire a little bit faster than the other kids, 
there is no question that she keeps up with them and follows the rules 
of the games. Her teacher has said how very proud she is of how Donna 
has excelled in class. She has also taken art classes, where she 
particularly likes painting and beadwork. She loves music, and her 
church wanted me to know how much they love having Donna in their

[[Page 5739]]

choir. She is active in not only her church choir, but also actively 
participates in her Sunday school class. The picture we have here is 
from a few years ago when Donna Joy was flower girl in her aunt's 
wedding, one of 2 weddings Donna Joy was in that summer. And she 
continues to add to her collection of movie star memorabilia. Oh, and 
she recently made an appearance on the Donahue Show with her mom Lori.
  So far, Donna Joy sounds like a pretty normal kid. But let me tell 
you a little bit more about her. Donna Joy is also very thoughtful 
about the needs of others. In her Sunday school class, she will stop 
and help the younger children who might be struggling with doing their 
crafts. She helps out around the house--without complaining! Donna Joy 
regularly helps a local shop pack up their extra cloths for shelters 
for abused women, shelters for the homeless, and for orphanages in 
Romania. Not only that, but with her sisters and mother, she regularly 
visits the elderly in nursing homes. She finds out which of them hasn't 
had a visitor in a while and then plays games and sings with them. This 
little girl once described as ``a burden, a heartache, a sorrow'' is in 
fact a beautiful, lively child who is now caring for the needs of 
others.
  Donna Joy's pastor recently sent me a letter expressing his 
appreciation of Donna Joy's life. Pastor David Rawley noted that ``had 
Donna Joy's parents followed the advice of several physicians and 
aborted this child, our community and church would have been bereft of 
an absolute treasure.'' He referred to himself as ``a member of the 
community which benefits from her life.'' I think he raises an 
important point. We never know ahead of time the impact that one life--
in this case, Donna Joy's--will have on a family, on a community, or 
for that matter, the world. Lori wrote me the other day to say, ``Donna 
Joy never put my life at risk. She's only made it better!
  Let me say again that Donna Joy went through an enormous amount of 
medical procedures--shunts. She suffered from epilepsy, sleep 
disorders, digestive complications, a variety of different 
complications that came with the condition that she had in utero. She 
suffered from encephalitis, an inflammation of the brain. She was 18 
months of age and had all sorts of problems--amnesia, tore at her face 
and eyes, couldn't walk or talk. She was not given much chance of 
recovery. And then a miracle happened. Donna Joy liked the television 
show, ``Quantum Leap'' and the show's star, Scott Bakula. She would 
perk up when he sang a song. She would light up. She was responsive. By 
putting the tape in and continuing to stimulate her, she was able to 
come through this and survive.
  She underwent eight brain operations by the age of 2. She incurred a 
lot. She was a great inspiration to me in pursuing this cause because 
she was proof that these children who are unwanted, who are wanted up 
to a point and then unwanted, unfortunately--because of their 
abnormality, they become unwanted and a subject for an abortion.
  This is a hard case, a crisis pregnancy, as someone described, that 
turned out for the best.
  In previous discussions I talked about cases that didn't turn out so 
well. Subsequent to this debate and the publishing of my wife's book 
about our son, Gabriel Michael, whose case did not turn out as well as 
Donna Joy Watts, many people have talked to Karen and to me about their 
own personal stories, and their own crises that they had to go through 
and deal with. They talked about the difficulties that were presented 
and how happy they were looking back that they saw it through; 
supporting and loving their child up until natural death; and the 
healing experience that they endured as a result of the pain that was 
brought upon them.
  Donna Joy is a good story. Donna Joy is someone who survived. All 
these obstacles were placed in front of her. But she lived despite what 
everyone said was an impossible situation. We have a recent picture of 
her.
  This is Donna Joy in a recent picture. She served as a flower girl in 
a wedding. I understand she was in two weddings that summer. She has 
had health problems and continues to have some. She has difficulties. 
Having six little children at home, I know all about those difficulties 
and challenges that each individual child brings. But she is a fighter. 
She is an inspiration to all the moms and dads who are going to 
confront a difficult pregnancy--a pregnancy as some would suggest which 
will go awry. Maybe 1 percent, 10 percent, 5 percent, some small 
percentage of the people who had Donna Joy's condition will survive as 
well as she is. But she did because her parents believed in her. They 
didn't accept the culture that said: You don't need this birth. It is 
too much for you.
  I am sure Lori and Donny would say this is too much at times, as any 
parent would. But here is a real-life situation with hopelessness. But 
occasionally there comes hope.
  As bad as it can be, if you have trust in your instincts and you 
follow those instincts to love and support and nurture the child whom 
God has given you, as a gift--it may not be as you open the package 
what you expected it to be, but it is nonetheless a gift; and you have 
to search, many times, for meaning from the gift, as Karen and I have--
but search and you will find the gift.
  In Lori and Donny's case, the gift is obvious. She is a beautiful 
girl, who wrote me a letter. I would like to read that letter into the 
Record. She wrote it on March 6. She said:

       Dear Senator Santorum,
       I think abortion is very mean. I am very glad that my Mom 
     and Dad did not let me die. I like to sing Karen Carpenter 
     songs. I like to play with my best friend Mariam. I love my 
     family and my church. My favorite actor is Scott Bakula. I 
     love pizza! I love my puppy. Please tell the President and 
     the other Senators that I want to be a T.V. star, and a 
     pilot, and a U.S. Senator. Please tell them I want to live!

  She is an example of the triumph of the human spirit that is far too 
often snuffed out by this brutal procedure. This brutal procedure not 
only snuffs out so much human potential, but its very presence in our 
society affects our spirit. It dulls our senses. It makes us less aware 
of the world around us because it is another thing we just have to 
block off, because we certainly cannot think, as we go through the day, 
of the dozen or so--maybe a few less, maybe a few more--of these 
procedures being performed on little babies, as the Kansas report says, 
with healthy mothers, healthy children.
  If we thought every day about what partial-birth abortion is and the 
horror it brings to these little children, we would have trouble going 
home. So we just put it aside. We bury it someplace, as we bury so much 
else, and it hardens us. It takes a little breath of spirit out of us 
and makes us a less caring and loving culture, less sensitive to the 
needs and wants of our neighbors, and particularly the little children.
  We have already seen it. Not only the 1.3 million abortions in this 
country, but we see it in people such as Peter Singer, who talks about 
children being killed after they are born, up to a year now, he says, 
because they really don't know who they are, and so it really doesn't 
matter. We kill them at that age. They have no sense of self. In some 
cases they may be in pain, so we need to alleviate pain.
  See, that is absurd. Well, 40 years ago, this procedure that I 
described was considered too absurd to be legal in America, and it is.
  So much that coarsens society is done just a little bit at a time, 
just on the fringes, just on the edges. And partial-birth abortion is 
just on the fringe, just on the edge, but yet coarsening our society, 
robbing us of the spirit, telling the world that we are not the country 
that we proclaim to be. And it is not even medically necessary.
  I would ask my colleagues, tomorrow, if we get to a final vote, to 
support this language as is, not to pass any amendments to this bill. I 
encourage a very strong and robust vote, to send a message to America 
that this does offend us, and that this does coarsen our society, and 
we need to stop it, at least here.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, I will be brief, no more than 5 minutes.

[[Page 5740]]

  I will just say, I listened to the Senator's remarks. I know the 
Senator has gone through some personal trials and tragedies in his 
family. I am aware of that. And I respect the Senator for not only his 
strength, but for that of his wife and all his family in enduring these 
trials. Many of our families have been through similar trials.
  I will tell you--and I am sure you will not be surprised; and I bet 
you will identify with this--some of the most heartening things I do 
are my visits to children's hospitals and seeing these parents, many of 
whom have children with serious health problems, who show such courage 
and such determination. It is a miracle to watch them and to see a 
child finally survive and prosper, as this beautiful little girl whose 
portrait the Senator brought to the floor.
  It is a testament to God and a testament to the strength of the 
people who just do not give up when their children are at stake. I 
think that is the right thing to do. God has blessed me and my wife 
with three great kids, and a grandson to boot.
  I will tell you, though, it troubles me that we end this debate on a 
day when we had a chance to offer across America health insurance to 
pregnant mothers who have no health insurance, so that they could have 
the best chance to give birth to a healthy baby, that we had that 
chance earlier in Senator Patty Murray's and Senator Harry Reid's 
amendment--a chance to offer them health insurance. That amendment was 
defeated. It was defeated on a 49 to 47 vote. Three Republicans joined 
us in voting for the amendment.
  I do not understand this: To have such depth of feeling and emotion 
for children, to have the medical resources to turn out like this 
beautiful little girl, and then to vote against that amendment; to vote 
against an amendment which offered health insurance. How can you 
possibly rationalize that we would have such determination to provide 
these medical resources, and when Members were given a chance today, 
they voted no. They voted no.
  I believe this admiration, this strength of families, particularly of 
the ones I visit in hospitals, has to be put in context. These families 
have hope because they have access to the great hospitals, the great 
minds, the great doctors, medicine, and technology. Think of the 
despondency of the family with a sick child and no health insurance, 
nowhere to turn, begging--begging--in an emergency room for just any 
attention whatsoever.
  So I would say my belief is that a commitment to family, a commitment 
to children, goes beyond the abortion issue. It goes to the basic 
issues of health care and health insurance. We had a chance today with 
the Murray amendment to do something about it. Sadly, we failed.
  I hope another day will come. I hope those who opposed it today 
saying, oh, it wasn't in the budget, and we are going to save that for 
the budget resolution debate, will say the same thing next week when 
the budget resolution comes to the floor. I hope they will join me and 
others and show that this commitment to kids, this commitment to 
parents, this commitment to hope goes beyond the debate on abortion.
  I yield the floor.

                          ____________________