[Congressional Record (Bound Edition), Volume 149 (2003), Part 5]
[Senate]
[Pages 5875-5931]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 PARTIAL-BIRTH ABORTION BAN ACT OF 2003

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 3, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 3) to prohibit the procedure commonly known as 
     partial-birth abortion.

  Pending:

       Durbin amendment No. 259, in the nature of a substitute.

  The PRESIDING OFFICER. Under the previous order, the Senator from 
California, Mrs. Boxer, is to be recognized.
  Under the previous order, there will now be up to 2 hours of debate 
equally divided on the motion to commit. The Senator from California.


                            Motion to Commit

  Mrs. BOXER. Mr. President, I send a motion to the desk, and I ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from California [Mrs. Boxer] moves to commit 
     the bill, S. 3, to the Committee on the Judiciary with 
     instructions to hold at least one hearing on such bill and to 
     report such bill back to the Senate after addressing the 
     constitutional issues raised by the Supreme Court in its 
     Stenberg v. Carhart decision.

  Mrs. BOXER. Mr. President, this straightforward motion essentially 
says it is important that this bill receive the guidance and the wisdom 
of the Judiciary Committee, since issues have been raised at the 
Supreme Court that have not been addressed in this bill.
  When I raised this in the beginning of the debate, a Senator on the 
other side said: We have debated this many times. Why do you want to go 
back to the committee?
  Well, there is a big difference between the three previous occasions 
that we have debated this bill and this

[[Page 5876]]

time, and that is, the Supreme Court has spoken. In June 2000, in the 
case of Stenberg v. Carhart, the Supreme Court ruled Nebraska's so-
called partial-birth abortion law is unconstitutional. I am told very 
clearly by the lawyers who were involved in that case that the current 
bill before us, S. 3, is legally identical to the Nebraska bill.
  The Supreme Court ruled that bill unconstitutional for two reasons. I 
would like to see the chart there. First, the bill contains no health 
exception. This is what the Supreme Court said:

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

  Mr. President, this bill contains no health exceptions. I am very 
pleased Senator Durbin will be offering a health exception today, as 
well as Senator Feinstein later, and there may be others. But the 
bottom line is the bill itself, as it stands, contains no health 
exception. It makes it unconstitutional.
  The second reason the legally identical bill was declared 
unconstitutional by the Supreme Court is that it imposed an undue 
burden on women because the definition in the law is too vague. It 
covers more than one procedure. This is what the Supreme Court said:

       Even if the statute's basic aim is to ban D&X--

  By the way, there is no such mention of D&X in S. 3.

     its language makes clear that it also covers a much broader 
     category of procedures.

  Therefore, it is putting an undue burden on the woman, Mr. President. 
With the Supreme Court's decision, we should at least have a bill 
before us that will pass constitutional muster.
  If I may see the other chart that summarizes the two.
  Here you see the summary of the problems with S. 3. Exactly the same 
as Stenberg: Undue burden on women because the definition is vague, and 
no exception to protect women's health.
  I believe we have a responsibility to make sure this bill is 
constitutional, and I would think that those of my colleagues who 
support this bill, even without a health exception, which I think is 
cruel to a woman and I think goes against the American value of caring 
about mothers and caring about their health--even if you support that, 
without a health exception, you ought to care about this being 
constitutional. It should be our responsibility because what is the 
point of all this--the President said he is going to sign it--if, in 
fact, the Court turns around and says it is the same problem all over 
again?
  You hear from others that this problem has been remedied and we have 
taken care of this in the findings, and they are tweaking some of the 
words, but the people who argued this law the last time said that 
clearly it is legally identical. I placed those letters in the Record, 
and I will read from them again.
  So we are spending time on the bill that experts tell us is 
unconstitutional. Yet we have so many other matters we should be 
addressing. If we want to address this bill, at least send it to the 
Judiciary Committee so that when it comes back, they will have looked 
at this question of constitutionality. In the meantime, we are not 
looking at the loss of jobs in this country.
  Yesterday, my colleagues on the other side voted down health 
insurance for poor, pregnant women--the ability for women to have 
contraceptives so they would avoid unintended pregnancies. Oh, this is 
amazing to me. These are the issues people confront every single day.
  So we have 14 pages of findings that basically say the Supreme Court 
found this, found that, and we find this, we find that; therefore, 
essentially, what we are doing is constitutional. It is amazing to me 
the authors of this bill would bypass the committee their own party 
controls and bring this bill straight to the floor without stopping in 
the committee of jurisdiction after the Court has very clearly spoken 
that this S. 3--because it is identical to Stenberg in a legal sense--
is unconstitutional. No health exception. How can anyone who has ever 
read the Stenberg case or, for that matter, case law regarding 
abortions since many years ago, argue that if you don't have a health 
exception, you are meeting the constitutional standard?
  I guess the Justices have felt all these years that a woman's health 
is important, and I guess some people in this body don't feel that way. 
That is your choice. But it is not constitutional. I think a hearing 
would be salutary. We could hear from the scholars, hear from the 
people who were involved in the Stenberg case. We could once again hear 
from the women who have gone through this procedure, many of whom I 
have shown you on the floor of the Senate. They call themselves very 
religious, very pro-life. Yet they chose to have a procedure that their 
doctors told them was necessary to preserve their fertility, to make 
sure they would not wind up being paralyzed.
  I am looking forward to Senator Durbin's amendment. I want to hear 
people argue against Senator Durbin's amendment when he spells out the 
health impact that could occur to a woman if this type of procedure is 
not available to her. We have a committee system and it ought to be 
used. I want to let the Senate know that this idea of taking a bill to 
committee is certainly not a new idea.
  Let's see what some of the Republican leaders said about sending 
bills to committee. This is March 6, 2002. This is Senator Don Nickles 
on bringing a bill directly to the floor and bypassing the committee, 
which is exactly what is happening today. This bill bypassed the 
committee of jurisdiction, the Judiciary Committee, and was brought to 
the floor. Let's hear what Senator Nickles said:

       Where is the committee report? One of the reasons we have 
     markups in committees is to have everybody on the committee 
     who has expertise on the issue to have input, to support it 
     or oppose it--to issue a committee report so we can find out 
     what is in it, so you can read what is in it in English, not 
     just the legislative language, which is difficult to 
     decipher. Our competent and capable staff prepare a committee 
     report explaining in English, here is what this provision 
     does, here is what this provision means.

  This is why it is important to send bills to committee, particularly 
on a subject the Supreme Court has taken up and has found terrible 
problems, constitutional problems, with a similar, if not legally 
identical, bill.
  Let's look at what else has been said. This is another statement by 
Senator Nickles on bringing a bill directly to the floor and bypassing 
the committee:

       I think that bypassing the committee and bringing a bill 
     directly to the floor is a violation of Senate protocol--
     spirit, basically telling the minority they don't matter. It 
     doesn't make any difference if there are 49 members on the 
     Republican side, you don't matter; you have no input.

  I think this is quite amazing. And we have more statements as to why 
bills should go to committee by the Republicans who have bypassed 
committees just a year later--not even a year later.
  Senator Frank Murkowski, now Governor of Alaska. He said this on 
bringing a bill directly to the floor and bypassing a committee:

       The question is, why in the normal course of events would a 
     bill under the jurisdiction of the committee not be referred 
     to that committee? To suggest that there is an effort to 
     obstruct the process by giving members input on the bill 
     through the normal process of amendments is a travesty of the 
     process associated with the traditions of the Senate.

  That was February 5, 2002.
  That is a statement of Senator Murkowski, Republican, now Governor of 
Alaska. ``It is a travesty of the process to bypass a committee.'' And 
this is about a bill that has, by the way, no constitutional problem as 
far as anyone knew, and here we are talking about a bill that comes out 
after a Supreme Court case and acting as if it never happened, in my 
view, because the operative language of the bill still does not meet 
the constitutional challenges laid out by the Court.
  This is another statement on bringing a bill directly to the floor 
and bypassing the committee, by Senator Nickles:

       I am very disappointed in this process. This process should 
     not be repeated. It should not be repeated by Democrats or 
     Republicans.


[[Page 5877]]


  Let me say that again:

       This process should not be repeated by Democrats or 
     Republicans. We have committees for a purpose. We have 
     committees for a purpose: So we can have bipartisan input, so 
     we can have the legislative process work, so we can have 
     hearings on legislation so people can know what they are 
     voting on, to where they can try to improve it, to where any 
     member of the committee has an opportunity to read the bill 
     and to amend it, to change it--win or lose, at least they 
     have the opportunity to try.

  We have a bill before us that should have gone to the Judiciary 
Committee. Senator Trent Lott's comments on bringing a bill directly to 
the floor and bypassing the committee:

       If we bring these important issues to the Senate floor 
     without them having been worked through committee, it is a 
     prescription for a real problem.

  What do we have? A bill that never went through the committee, a 
changed bill that never had a hearing at Judiciary, about a subject 
that is as important as life and death. Unbelievable.
  So my motion to commit this bill to the committee--where, by the way, 
the Republicans have control--is a proposal that is not partisan and 
that is sincere because I believe, with all the problems we have in the 
world, the last thing we need to do is pass a bill that is 
unconstitutional and then have it brought back again, where we have to 
start all over, we have to have pictures that some of my constituents 
told me they could not even look at.
  The Supreme Court said you must have a health exception:

       The governing standard requires an exception where it is 
     necessary, in the appropriate medical judgment for the 
     preservation of the life or health of the mother.

  My colleagues want to put themselves in the doctor's shoes and decide 
they know what is best in an operating room. They know. They may not 
have gone to medical school, but they know.
  The Supreme Court wrote:

       Our cases have repeatedly invalidated statutes that, in the 
     process of regulating the methods of abortion, imposed 
     significant health risks [to the mother].

  The Supreme Court wrote:

       Even if the statute's basic aim is to ban D&X, its language 
     makes it clear it also covers a much broader category of 
     procedures.

  What I have presented in my opening statement is the following: We 
have a bill that deals with a subject of life and death. We have a bill 
that, if it passes, makes no exception for the health of the mother. We 
have a bill that legal experts say is legally identical to the law that 
was ruled unconstitutional by the Supreme Court.
  We have a bill that affects real people. We heard their cases, and we 
will hear them more when Senator Durbin presents his amendment. At a 
minimum, could we have a little humility and send a bill such as that 
to the appropriate committee? Could we have a little humility? Could we 
be a little humble?
  Senators are playing doctor, and that is wrong. Senators are ignoring 
a Supreme Court decision that says there must be an exception for the 
health of the mother. That is wrong.
  My mother always said to me, there is right and there is wrong. You 
should be humble, and you should care about other people. Those are the 
values I grew up with.
  As a mother of two children, having had two premature babies and, 
thank God--in those years it was not easy--they made it, with God's 
help, and as a grandmother who saw a daughter have a very challenging 
pregnancy, I know these things do not always go smoothly. And I know, 
because I have lived long enough to know, that if a doctor says to a 
mother or a father of a daughter or a husband of a daughter or family 
members of a woman, she could have a hemorrhage and die if we do not 
use this procedure, she could have a uterine rupture, she could be made 
infertile, she could have a blood clot, she could have an embolism, she 
could have a stroke, she could have damage to her nearby organs and she 
could be paralyzed for life if she does not have a procedure, it is a 
very serious matter.
  This is not a list that was made up by anyone. It comes from 
physicians. I have the letter, and I have placed it in the Record. 
There are other things, such as a coma, that I did not put on the list.
  I am saying to my colleagues, be a little humble. At the minimum, 
send this bill to the committee. Have these doctors come forward. 
Create a health exception that is fair. Do not give us a bill with no 
health exception because that is cruel, it is wrong, and it goes 
against American values of caring about each other.
  I hope we will have a good vote and that this bill, S. 3, will go to 
the Judiciary Committee. Senator Santorum can appear before them. He 
can tell them why he believes he has met the Supreme Court case, the 
challenges that were laid down in Stenberg. I could be there, Senator 
Feinstein, other colleagues who feel another way. We could present our 
witnesses, we could talk about it, and then the committee could decide 
which way to go on it.
  Mr. REID. Will the Senator yield for a question?
  Mrs. BOXER. I would be happy to yield.
  Mr. REID. Is the Senator from California saying that no matter how 
one feels on the underlying issue, we would be better off as a Senate 
if it went back to the full committee for a hearing and they had 
witnesses come and testify before the committee, those who are in favor 
of the procedure, those who are against the procedure, and then bring 
the bill back to the floor? Is that what the Senator is saying should 
happen?
  Mrs. BOXER. Yes. In addition, I say to my friend, have the lawyers 
who are familiar with the Stenberg case.
  This chart shows the differences between this bill and the Stenberg 
case in terms of the legalese. Basically, they are identical. What we 
have is the Stenberg case that ruled that the Nebraska statute was 
unconstitutional because it placed an undue burden on women because the 
definition is vague and there is no exception to protect women's 
health.
  Lawyers and constitutional experts tell us that the same problem 
exists in S. 3. So my friend is right. We would bring the legal people 
together. We would bring the women back. We could have another debate 
and then, regardless of how one feels--and I know the Senator and I may 
come down differently on this in the end--that is fine. I do not expect 
my position to prevail, let's be clear. But I think the Senate should, 
at the minimum, have the humility to hold a hearing and find out how 
they ought to draft this bill.
  Mr. REID. Will the Senator yield for another question?
  Mrs. BOXER. Absolutely.
  Mr. REID. The Senator and I came to Washington to serve in Congress 
at the same time. We were elected the same year, 1982. Is it true that 
during the Senator's service in the House of Representatives, she sat 
through hundreds of hearings on a multitude of issues? Is that a fair 
statement?
  Mrs. BOXER. That is correct.
  Mr. REID. What, I say for the people who are watching this, would the 
Senator say as to why we have those hearings?
  Mrs. BOXER. Clearly, we are trying to get an in-depth knowledge of 
the issues and the challenges. We want to make sure the bills we 
present to the full Senate, or the full House on the other side, are 
carefully thought out; they make sense; there are no unintended 
consequences that could occur. It is for all of those reasons. Of 
course, it becomes a place for the public to get involved, because 
right now--Senator Frist, who is a doctor, his expertise is heart 
surgery and transplantation--we do not have anyone in the Senate who is 
an OB/GYN.
  The other point I want to make while my colleague is in the Chamber, 
in addition to the fact that there is no health exception, is to bring 
out one of the things Senator Nickles said last year about bypassing 
the committee.
  This is a statement made by Don Nickles when a bill bypassed the 
committee of jurisdiction and came straight to the floor. He said:

       I am very disappointed in this process. This process should 
     not be repeated. It should not be repeated by Democrats or 
     Republicans. We have committees for a purpose. We have 
     committees for a purpose: So we can have bipartisan input, so 
     we can have the legislative process work, so we can have 
     hearings on legislation so people can know

[[Page 5878]]

     what they are voting on, to where they can try to improve it, 
     to where any member of the committee has an opportunity to 
     read the bill and to amend it, to change it--win or lose, at 
     least they have the opportunity to try.

  That goes directly to my friend's question about why we have 
committees and what their purposes are.
  Mr. REID. Will the Senator yield?
  Mrs. BOXER. I am happy to yield.
  Mr. REID. The Senator is asking in this motion filed to recommit this 
bill to the committee, basically what the chairman of the Budget 
Committee said last year, that this should be referred back to 
committee because this bill has not had a committee hearing before it 
came here, and after the Supreme Court decision, so that people who are 
involved or have some questions about the legislation can do as Senator 
Nickles said, try to improve it, have an opportunity to amend it, 
change it. Win or lose, at least have the opportunity to try.
  Mrs. BOXER. Yes. This is not a motion to recommit; it is a motion to 
commit.
  Senator Lott said, on bringing the bill to the floor and bypassing 
the committee:

       If we bring these important issues to the Senate floor 
     without them having been worked through committee, it is a 
     prescription for a real problem.

  I say to my friend, Senator Reid, you may be interested in this 
statement of Senator Murkowski:

       The question is, why in the normal course of events would a 
     bill under the jurisdiction of the committee not be referred 
     to that committee? To suggest that there is an effort to 
     obstruct the process by giving Members input on the bill 
     through the normal process of amendments is a travesty of the 
     process associated with the traditions of the Senate.

  It is very unusual for me to bring out statements made by the other 
party when arguing for a position. I am not saying it any more 
eloquently than they said it.
  I say to my friend, our assistant Democratic leader, what they are 
referring to is the energy bill. That never really had a constitutional 
question. We have here a situation where we have the Supreme Court 
ruling on a legally identical bill that this is unconstitutional.
  I hope we will have support. I look forward to the remainder of the 
debate. I also look forward to Senator Durbin's presentation on making 
sure we get a health exception. I hope colleagues will support that. 
That is what they ought to do if they really care about families and 
women and women's health, and we can move on, complete this bill, and 
have it, hopefully, committed to the Judiciary Committee where they can 
look at the constitutional questions and call on the doctors, have a 
good debate, and bring this back to the floor having had the benefit of 
the wisdom of the members of the Judiciary Committee, both Democratic 
and Republican.
  I retain the remainder of my time and I yield the floor.
  The PRESIDING OFFICER (Mr. Graham of South Carolina). The Senator 
from Pennsylvania.
  Mr. SANTORUM. Mr. President, to comment directly on the Senator's 
motion to recommit, she cites statements by Members of the Republican 
leadership concerning the practice last session of repeatedly bringing 
bills to the floor without having gone through committee. The bills we 
were referring to included a comprehensive energy bill, a bill about 
that thick, and the agriculture reauthorization, which was another 
rather thick and complicated piece of legislation, all brand-new 
material. The prescription drug plan, roughly $300 to $400 million in 
new Government spending, and a brand-new entitlement, never went 
through committee. And a whole host of other pieces of legislation. We 
are talking about major, complex, lengthy, pieces of legislation.
  The corporate responsibility bill was dramatically changed and a 
whole list of others that came to this floor. Members were justifiably 
concerned that these rather extensive and expensive and complex pieces 
of legislation should have had some review at the committee level.
  None of these measures, prior to their being placed on the floor of 
the Senate, had been on the floor of the Senate before, had not had any 
kind of consideration in any body.
  Compare that to the legislation before the Senate. The legislation 
before the Senate is the same subject matter we have debated on the 
floor on four previous occasions. There have been two extensive 
Judiciary Committee hearings on this piece of legislation and there has 
been wide discussion both on the floor and off the floor about this 
particular procedure.
  The Senator from California argues we should have this bill go before 
the Judiciary Committee now because it is a changed bill. These are her 
words: ``It's a changed bill.'' Earlier in her discussion she said this 
bill does not meet constitutional muster because it is identical to the 
bill we passed previously. So if it is identical, how can it be 
changed? If it is identical, why do we have to go back? If it is not 
identical, you can at least make the point we need to go back.
  I make the argument the underlying issue we are dealing with here, 
the issue of banning this procedure, has not changed at all. Some of 
the legislative language has changed, but the Senate floor is 
eventually going to handle this issue anyway and is perfectly competent 
to review this legal language and make a determination on their own as 
to whether they believe this meets the constitutional standard as set 
forth in the Carhart decision. I don't believe it is hard. There is a 
unique expertise within the Judiciary Committee to deal with something 
that eventually we have to deal with on the floor. There is a lot of 
information written about this subject area, and it has been fully and 
openly debated on the Senate floor.
  It is a very narrow issue. This is not a Medicare prescription drug 
plan. This is not a comprehensive energy strategy. This is not an 
agriculture reauthorization bill. This is not a corporate 
responsibility bill. This is a very narrow single issue. We are talking 
about the difference in this case between maybe 20 or 30 words. I don't 
think we need a Judiciary Committee hearing and markup for 20 or 30 
words on a bill we have debated four times on the floor of the Senate. 
We are perfectly capable of handling it.
  That leads me to the second issue, which is the issue of 
constitutionality the Senator from California brings up as a reason to 
commit this legislation back to committee.
  Let me address those issues. First, the issue of vagueness. The 
Senator from California quotes the U.S. Supreme Court in saying, ``its 
language makes clear''--its language being the bill's language in 
Nebraska--``that it also covers a much broader category of 
procedures.'' As a result of that, the possibility with the language in 
the Nebraska statute covering procedures other than partial-birth 
abortion, the Court found it to be vague.
  We have responded to that. We have responded to that with a much more 
detailed definition. Let me read the operative parts of the definition 
to show the difference in language in how we have responded to this 
concern. In S. 1692, which was virtually identical to the Nebraska 
statute, the definition was:

       An abortion in which the person performing the abortion 
     deliberately and intentionally vaginally delivers some 
     portion of an intact living fetus until the fetus is 
     partially outside the body of the mother.

  Let me repeat that:

       . . . some portion of an intact living fetus until the 
     fetus is partially outside the body of the mother.

  The Court said there are other procedures done, late-term abortion 
procedures that are done, that in the process of doing that procedure, 
a portion of the body--maybe an arm or a leg or an appendage, may 
actually come outside of the mother while the child is still alive. So 
what they are saying is as a result of that, we could be banning this 
other procedure. In the course of doing another abortion procedure that 
is legal, not barred by the legislation before us today, that could 
occur.
  We have addressed that issue. They clearly point to that particular 
example. We have changed the language by

[[Page 5879]]

saying 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 a breech presentation, any part of the 
fetal trunk''--not an arm, not a hand, not a foot, not a leg--any part 
of the fetal trunk, which means, of course, the feet, the legs and the 
trunk ``past the navel, is outside the body of the mother.''
  So we are not talking about performing a D&E, where the baby is 
killed in utero and dismembered and taken out a piece at a time. We are 
not talking about that procedure. We are talking about a procedure 
where--if we can get the chart so I can graphically show what we are 
talking about--there is no other procedure that could possibly be 
covered.
  I ask those who are opponents of this bill if they can name for me 
another procedure where the child would be arms, legs, and trunk 
outside of the mother, all but the head. That is the procedure we are 
talking about here. No other medical procedure as defined in the 
medical literature has a baby in this position. Period. Period. There 
is no vagueness here. We are clear about this procedure.
  We are very clear that the child is delivered in a breech position 
and then, if we put the previous chart up, these 8-inch long scissors--
we can see the scissors are about as long as a human hand and the baby 
is roughly as long, maybe slightly longer than a human hand. This baby 
at this point is roughly, I believe, 24 weeks, which is roughly the 
time, 20 to 26 or 27 weeks, when the vast majority of these partial-
birth abortions are performed.
  I know the Senator from California said her constituents saw these 
pictures and they couldn't look at them. That is why we are trying to 
ban this procedure. Because this is horrific. You cannot look at it and 
not be affected.
  The Senator from Washington, the day before yesterday, said that 
banning this procedure is an extreme measure. I would like to know what 
her definition of extreme is. Banning this procedure is an extreme 
measure. I asked her what she thought about the fact that 70 percent of 
the American public wanted to ban this procedure. Under my definition 
of extreme, it does not equate to 70 percent support of something being 
considered extreme. But she held fast. She said the reason it is 70 
percent support is because they do not understand really what this 
procedure is all about.
  I want to juxtapose that statement to the statement of the Senator 
from California who said the people in her State could not even look at 
the pictures. I suggest to you, what if every single American were 
forced to sit in front of a television set, or, worse yet, were 
required to come into an abortion clinic--these are not performed at 
hospitals; they are just performed at abortion clinics. What if every 
single American were required to come in and watch this occur to a 
little baby, to stand and watch a physician who is trained to heal, who 
is trained to save lives, who is trained, as the Senator from 
California said yesterday, to ``first do no harm,'' remove a 20-week to 
26-week, 27-week--in some cases unfortunately later than that--little 
baby from its mother.
  This is the part I just find chilling. Imagine yourself, close your 
eyes and imagine yourself in this abortion clinic watching this little 
child. I have witnessed the birth of our seven little children. I see 
these little people emerge miraculously, incredibly, from the birth 
canal, from their mother into the loving hands of a doctor whose job it 
is to heal, whose job it is to nurture and take care of that child.
  But in this case those hands are not there to heal. These are not 
healing hands. They look like it, don't they? They have the gloves on, 
don't they? They are sterile, aren't they? But they are not healing 
hands. No, these hands are not there to heal this little child. Those 
hands are there to grasp that little child who is alive; who is alive. 
By definition, under this bill, this is not a partial-birth abortion, 
because it says ``delivers a living fetus.''
  So, if this child is not alive, this procedure is not barred. This 
procedure is only barred if this baby is alive.
  So you have hands of a doctor trained to heal, grasping a living 
child whose arms and legs are extended, whose heart is beating, whose 
nerves are sensing, whose brain is attempting to understand what is 
going on, and he's grasping this living being.
  When you hold something that is alive, when you have it in your 
hands, whether it is a little rabbit, guinea pig, or little puppy, 
there is a feeling. There is a sense you have when you are holding 
something that is alive. This doctor is holding something he or she 
knows is alive and is 3 inches from being born, 3 inches from 
constitutional protection. This doctor is not there to heal. He is 
there to take these scissors, long, narrow scissors that come to a 
point at the end--they are called Metzenbaum scissors--his job is to do 
this blindly, because this is not done with a sonogram. This is not 
done where the doctor can see inside of the mother through a medical 
device. No, this is done blindly. The doctor is feeling, reaching his 
hands in to find the spot, the lethal spot, the soft spot here at the 
base of the skull, that soft spot in this little baby where he takes 
this sharp instrument and blindly thrusts it into this baby's skull.
  As our majority leader said yesterday, it is a dangerous procedure 
for mothers. It is a blind procedure. It is done in an area of the body 
that is very susceptible to injury. It is a very lush area of the body. 
There is no protection for the mother. As the Senator from Tennessee 
yesterday said, those scissors could slip because it is a blind 
procedure. They could perforate a uterus, or they could lead to 
incompetent cervix. They could lead to a variety of harm that other 
late-term abortion procedures do not do.
  Not only is this lethal for this baby but it is dangerous for the 
mother. According to the doctor who designed this procedure, he said--
again, this his testimony--that he has never encountered a situation 
where a partial-birth abortion was medically necessary to achieve the 
desired outcome. His words: Never medically necessary. He personally 
designed the procedure and said often that the reason he designed this 
procedure was not because it was healthier for women, not because it 
was safer for women, and not because it was a better, more scientific 
way of doing this. This procedure is not taught in a single medical 
school in the country. It is not taught in a single hospital in the 
country. It is not, to my knowledge, performed by any obstetrician. It 
is performed by abortionists who are not board certified in obstetrics. 
But they are certified in destruction. That is what this procedure is. 
This is not a procedure to preserve the health of mothers. The doctor 
who designed this procedure said he designed this procedure because the 
other type of abortion, which we do not ban in this legislation, takes 
45 minutes. This takes 15 minutes. In his words--not mine--``I can do 
more abortions in a day.''
  Those scissors are thrust into this little baby's skull.
  Again, you are in this room. Close your eyes. You are in this room, 
and you are watching this baby whose arms and legs are moving, who is 
alive, who but for this act that is being perpetrated upon it, would be 
born alive. That is not to say it would live substantially longer after 
birth; depending on its gestational age, maybe or maybe not.
  We have cases the Senator from Ohio talked about where mothers who 
had partial-birth abortions or were to have partial-birth abortions--
remember how this procedure works. You can go in and present yourself 
to the abortionist. The abortionist gives you a pill and sends you home 
for 2 days. That is the reason it only takes 15 minutes of his time--
because he sends you home with medication to dilate your cervix over a 
2-day period of time and you present yourself again for the procedure. 
At that point, it only takes 15 minutes of his time. There are all 
sorts of complications which I will not get into right now.
  Having dilation over a 2-day period of time could lead to women's 
inability to carry children long term after their

[[Page 5880]]

abortion. In two cases in Ohio, women delivered children because their 
cervix dilated too quickly, which induced labor. It resulted in the 
delivery of two children, both of whom lived. One did not survive 
because she was too premature. The other lives today but was selected 
for this procedure.
  Go back to the room again. You are watching this doctor with these 
hands that are holding a living child. The child fits, as you can see, 
very comfortably. The entire trunk and the body of the child fit into 
this physician's hand. The body is moving. But he finds the spot and 
thrusts the scissors into the base of the skull.
  Nurse Brenda Shafer was assisting on a partial-birth abortion. By the 
way, she was not pro-life. She was working in an abortion clinic. But 
when she saw this and saw--her description--the arms and legs of the 
child shoot out like when you hold a little baby and you let it fall a 
little bit. The baby will react like that and shoot its arms and legs 
out, not knowing what is going on and not understanding what is being 
done to it because their ability to understand is limited to that. This 
baby doesn't have any time to understand because in that moment in 
which these little girl's or boy's arms spasm out like that, the baby 
is dead.
  But the procedure doesn't end, the insult doesn't end, because the 
doctor then takes these scissors and pulls them, causing the scissors 
to pull the skull open--to break the skull apart so he can create a 
hole in the baby's head big enough for a suction catheter to be 
inserted into the base of the baby's brain.
  They turn on this vacuum suction tube. Then they suction the baby's 
brain contents out--the cranial contents out. Because of the softness 
of the baby's skull, the skull collapses and the baby is then delivered 
dead.
  As our majority leader, the doctor from Tennessee, said yesterday, 
the only advantage he can possibly conceive of for this procedure is 
that it guarantees the baby is dead before it is delivered.
  We are not vague about the procedure we are describing. The court 
should not be under any misunderstanding about what we are attempting 
to bar. The language in this legislation is not really identical. If I 
were arguing for the plaintiff--that is their job. Their job is to go 
out and present the best argument they can. My guess is they will argue 
that it is not legally identical, and they will have three or four 
other arguments in the alternative that this court will not buy. That 
is the job of the lawyer representing their client.
  Our job as Senators is to protect the decency of our society. It is 
to stop unnecessary brutality to the weakest among us--to stop 
procedures that are harmful to the health of mothers. There is not one 
physician who has testified who has said this procedure is the safest 
or is the best.
  I ask this question again: As I repeated the last 3 days and I have 
asked for 7 years on this floor, give me a procedure, give me a case 
study where a partial-birth abortion is indicated, where it is 
necessary--this is the term, by the way, that the Supreme Court used as 
Senator Boxer's chart shows--where it is ``necessary and appropriate 
medical judgment for the preservation of the life or health of the 
mother''--where it is necessary. There is not one case, not one 
instance in 7 years when it has been brought to this floor, or to the 
floor of any State legislature, the floor of any courtroom, any hearing 
room. Not one case has been brought where it has been argued, because 
of the particular medical circumstances, it is medically necessary for 
this brutality.
  Why? Because this isn't taught in any medical school. It isn't done 
in any hospital. It isn't done by any obstetrician. This is a rogue 
procedure for the convenience and economic benefit of abortionists and 
abortion clinics. Of course, it is not medically necessary. It is not 
even medically recognized. It is dangerous to the health of mothers.
  Let me quote from the findings in the bill. By the way, this is all 
from congressional testimony. I understand the Senator from California 
wants us to commit this back to committee for congressional hearings. 
Here are the definitive hearings we have had on this legislation:

       Those risks include, among other things: an increase in a 
     woman's risk of suffering from cervical incompetence--

  As I said before, you have a 2-day period where the cervix is 
dilated. That leads to a variety of different risk factors, including 
infection, that could lead to cervical incompetence.
  As the Senator from Tennessee said yesterday--the only physician in 
the Senate, who has delivered his share of babies--you do not put these 
kinds of instruments through the opening where the cervix is without 
having some consequence or potential consequences to the ability, long 
term, for a mother to carry a child.

       As a result of cervical dilation making it difficult or 
     impossible for a woman to carry a subsequent pregnancy to 
     term; an increased risk of uterine rupture--

  Why? Because of those scissors we showed you before, that suction 
catheter, if not properly placed, could cause a lot of damage.

       abruption, amniotic fluid embolus, and trauma to the uterus 
     as a result of converting the child to a footling breech 
     position--

  Now, remember, any of you who have gone through the birth of a 
child--whether as a mother or a father or a relative--who have 
experienced the birth of a child, one of the things you always worry 
about is, is the child in the right position before delivery? Is the 
child in the right position? What is the right position? Well, head 
down.
  What is one of the greatest fears of a mother and a father when they 
go in to deliver a baby? If the baby is not in the right position, and 
the delivery might have to be what? Breech. Breech deliveries are 
dangerous. They are potentially life threatening to the baby and could 
be very harmful to the mother.
  What does this procedure deliberately do? It delivers the baby in a 
breech position. And:

     a procedure which, according to a leading obstetrics 
     textbook, ``there are very few, if any, indications for [the 
     breech position] other than for delivery of a second twin;'' 
     and a risk of lacerations and secondary hemorrhaging due to 
     the doctor blindly forcing a sharp instrument into the base 
     of the . . . child's skull while he or she is lodged in the 
     birth canal, an act which could result in severe bleeding, 
     brings with it the threat of shock, and could ultimately 
     result in maternal death.

  Now, you have to ask a question, folks. Why are there people across 
this country in some of those organizations that are ``abortion rights 
organizations,'' and some Members here in the Senate coming here to 
argue to maintain the legality of a procedure which is a rogue 
procedure--not according to Rick Santorum, but according to the AMA, 
according to a variety of different organizations that are out there 
that are physician-oriented organizations. It is a rogue procedure--not 
taught in medical schools, not done in hospitals, not done by 
obstetricians--designed by abortionists for the convenience of the 
abortionist, that is a greater risk.
  I show you a chart with Dr. Hern's comment. I show you a comment of 
an abortionist who does late-term abortions. In fact, he doesn't just 
do them, he is ``the'' expert in America. As they say, he wrote the 
book. This man wrote the book. He is the author of standard textbooks 
on abortion procedures, abortion practices, and performs many third-
trimester abortions. This is what he said:

       I have very serious reservations about this procedure . . . 
     you really can't defend it. I would dispute any statement--

listen--

     any statement that this is the safest procedure to use.

  This is not someone who supports my side of the argument, by the way. 
But what he is suggesting is, this is the least safe. In fact, we have 
umpteen medical organizations and physicians' testimony, saying: Well, 
you know, we want to keep it as an option. Many of these groups say: 
And we don't want doctors to have any restrictions on their right to 
practice. But, no, there are safer procedures, certainly.
  But the evidence is overwhelming. This is the least safe procedure. 
This is the most dangerous procedure to the

[[Page 5881]]

health of a mother. So it is the most dangerous. And it is never 
medically indicated, never medically necessary.
  So, again, why? Why do you oppose this? Of all the alternatives, it 
is the most dangerous to the health of the mother. So it is dangerous 
to the health of the mother, and it is never medically indicated. Well, 
then, why would you support keeping it legal?
  What is so important, what value that you hold, what thing is so 
precious that would require you to come here and defend a procedure 
that is never medically necessary and more harmful to women than other 
alternatives? What is it? It is not women's health. No, no, no, it is 
not women's health, because this is the most dangerous. And this is not 
medically necessary. So what is it?
  Well, as the abortion rights groups have said, this is an assault on 
the right to an abortion. This procedure is an assault on the right. I 
would argue, most people do not even believe you could have abortions 
at this stage. When you look at this little, fully formed, living 
child, most people in America cannot imagine that abortions are 
performed on healthy mothers with healthy babies at this point in 
pregnancy, because the other side has said, for years: Well, Roe v. 
Wade only allows first-trimester abortions. They are limited 
afterwards. Wrong. Wrong--healthy mothers, healthy babies.
  How do we know? Well, Ron Fitzsimmons, who is the director of the 
organization of abortion clinics in America, said: I lied through my 
teeth when I said this was performed in rare circumstances only to 
protect the health of the mother, on children who are deformed or 
mothers who are in danger. I lied through my teeth, he said. He said: 
We all know that these abortions are performed on healthy mothers and 
healthy babies. The vast majority--his quote--the ``vast majority.'' We 
have better than a vast majority.
  The State of Kansas, the only State in the Union that tracks these 
kinds of abortions, requires a reason for the abortion on the form the 
doctor has to fill out after he performs it. In Kansas, there were 182 
partial-birth abortions in 1 year--in a State the size of Kansas. How 
many were for the health of the mother? How many were because the 
mother's life was in danger? How many were because the mother's future 
fertility was in danger? How many were because the mother was in danger 
of grievous medical injury, physical injury? How many were because this 
was medically necessary? How many? None. Zero. The reason given for all 
182 brutal executions at the hands of a physician: mental health. They 
had to check a box somewhere: ``mental health.'' Well, they have to say 
a health reason. You can't do it for no reason. But mental health, of 
course, is fear, anxiety, stress--certainly things we should be 
concerned about, but I do not believe at this stage in pregnancy a 
sufficient reason in the American public's eyes to do this.
  Is stress a reason for this? Is this a justification in the eyes of 
the American public? Seventy percent--I daresay if we had every 
American in the room when one of these procedures was performed, God, I 
hope at least 95 percent would agree it was not justified.
  This is an evil in our midst. One of the great things I believe about 
America and about my colleagues is when they see evil, they have the 
courage to stand up and fight it. This is the face of evil. Those 
hands, those healing hands are a corruption of medicine that we cannot 
allow to continue.
  Please vote against this motion to commit, this motion to delay the 
banning of this procedure that could save some little baby somewhere in 
America from having to go through this.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, we have reached a point of this debate 
where there has been screaming and yelling on the Senate floor. I will 
try to react to those screams as calmly as I can and say that this bill 
doesn't protect the health of women. It puts our daughters in harm's 
way. That is not groups saying that. That is 45,000 OB/GYNs. Talk about 
loving hands; they are saying that. It is women who have had the 
procedure. They are saying that. And guess what. The Supreme Court says 
that. Because of that, we need to send this bill back. Actually it is 
not back to committee; it never went to committee.
  I never said it was identical. I said it was legally identical to the 
Stenberg case. I have said that over and over.
  This morning we have been listening to a series of lectures about 
medicine. I guess I find that odd on the Senate floor, especially the 
one about breech babies because my daughter was delivered breech. I 
understand that. I don't need to be lectured about that, about what it 
is, about what the risks were to me or my baby because I lived it.
  I do know one thing: My constituents are right to look away from this 
drawing. No one wants to look at abortion. We want abortion to be rare. 
We want it to be safe. We want it to be legal. The vast majority of 
people in the State I represent, a State of 35 million people, support 
Roe v. Wade because it is a moderate decision that balances all the 
interests. Yes, the health and life of the mother always, and the 
interest of the fetus where, after the first 3 months, States can in 
fact set the rules of abortion, but always, always with the life and 
health of the mother at the forefront.
  This bill does not do that. Therefore, this bill is unconstitutional, 
in addition to being cruel, in addition to being dangerous, in addition 
to putting women in jeopardy.
  Again, I say to my colleague that he has chosen to put this drawing 
here. I could have chosen to put a drawing of a woman having a 
hemorrhage behind me. I could have chosen to put a drawing of a woman's 
uterus rupturing and everyone running around in the emergency room 
desperately trying to save her. I could have chosen a drawing of a 
woman slipping into a coma, having an embolism. I could have put a 
drawing of a woman paralyzed for life because perhaps she couldn't get 
this procedure which my colleague has decided doctors say they don't 
need. That is false on its face, and that is the reason we need to have 
a hearing.
  We have letters from doctors. We have letters that lay out why, in 
fact, this procedure is necessary and why this bill is 
unconstitutional. A letter from the University of California, San 
Francisco, signed by Felicia Stewart. She says 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; it puts women in jeopardy.

  She names the various abortion procedures which could be outlawed.
  I would like to have this bill go to the Judiciary Committee because 
I would like to know why one procedure wasn't mentioned in the bill 
ever. It is on purpose because it is meant to cover more than one 
procedure. That is another unconstitutional provision.
  By the way, the proponents of this said before that the laws before 
the court would be deemed constitutional. They were not. They were 
wrong then; they are wrong now. And surely if they think they are so 
right, why don't they want to take the time and have this bill go 
through the Judiciary Committee.
  Dr. Stewart says:

       If the safest medical procedures are not available to 
     terminate a pregnancy, severe adverse health consequences are 
     possible . . .

  And she lists them. They are even more than what is behind me.
  The individual who argued the Supreme Court case that we are talking 
about, Stenberg, says the new Federal bill, S. 3 ``contains the same 
two flaws of the Nebraska bill that was ruled unconstitutional.'' And 
she goes on to explain why. I don't want to be terribly repetitive, but 
there were two problems in the Stenberg case. The ban was too vague 
and, therefore, there was an undue burden on the woman because she 
could be denied all kinds of procedures. Secondly, there was no health 
exception.
  So, yes, I could have had a drawing that showed a woman in severe 
crisis and constituents would have turned away from that as well. That 
is why Roe v. Wade is such an important decision because it knows that 
this issue is

[[Page 5882]]

so difficult. It weighed the competing interests and it said, in the 
first 3 months of a pregnancy, government stay out. A woman and her 
doctor can decide. Senator Santorum should not decide, although in his 
opinion, I know he wants Roe v. Wade overturned. He thinks government 
should decide. I take issue with that. But there is no difference on 
the rest because I do believe later in a pregnancy, the State has a 
right to set the rules, always making an exception for the life and 
health of the mother.
  I don't know what all the yelling is about because I could tell my 
colleague that we could probably get, if the leaders on his side of the 
anti-choice would agree, we could get a bill that could ban all late-
term abortions--all--except for life and health of the mother. Wouldn't 
that be something we could do?
  We will have the chance because, as I understand it, Senator 
Feinstein will be offering that very bill. Let's see how our colleagues 
feel. They will have a chance to ban all late-term abortions with the 
life and health exception.
  My colleague said, in answer to Senator Nickles' comments about how 
important it is to send bills to the committee of jurisdiction--I wrote 
down what he said--they were talking about a complex piece of 
legislation, major complex piece of legislation. They were talking 
about a big piece of legislation, many pages. Well, I ask the question: 
What could be more important for the Senate Judiciary Committee to look 
at than a matter that deals with life and health? What could be more 
important for the Judiciary Committee to look at than a possible ban on 
a procedure that has no health exception, which could lead a woman into 
a life where she is paralyzed, where she has a stroke, where she cannot 
bear children anymore, where, in essence, she is taken away from her 
family? What could be more important to take 2 days on?
  Are women not worth a couple of days of hearings here? Are women not 
worth it? They are your mother, they are your sister, they are your 
wife, they are our daughters.
  Mr. DURBIN. Will the Senator yield further?
  Mrs. BOXER. Yes.
  Mr. DURBIN. I want to make sure this is understood by Members of the 
Senate and those following this debate, and I want to ask this 
question: Am I correct in my assumption that the exact language of S. 
3, which is currently before us, was the same language in the Nebraska 
statute that was found unconstitutional by the U.S. Supreme Court?
  Mrs. BOXER. It is legally the same. There are a couple of tweaks in 
the language, and there are a series of findings, but the lawyers who 
argued the other case tell us it is legally the same because there is 
no health exception and the language is so vague that it creates an 
undue burden.
  I have behind me on a chart the two reasons the Court found that 
Stenberg was sufficient. Those issues remain in S. 3. That is why this 
motion to commit is an attempt to do the right thing by the women in 
this country, and for the children of this country, and for the 
families in this country, and for anybody who cares about this matter, 
and to have a couple of days of hearings to see if we can get a bill 
that would pass constitutional muster.
  Mr. DURBIN. If I may ask another question of the Senator. So in 1999 
we debated virtually the same bill on the floor?
  Mrs. BOXER. Correct.
  Mr. DURBIN. There was a vote taken and then the veto by President 
Clinton. Then subsequent to that the U.S. Supreme Court across the 
street took the Nebraska statute to consider whether or not it was 
constitutional, and that statute had the same language we are 
considering today. I can quote it. This was in the Nebraska statute, 
and this is in S. 3. Abortion is:

     necessary to save the life of a mother whose life is 
     endangered by a physical disorder, physical illness, physical 
     injury, including life and danger of physical condition 
     caused by or from the pregnancy itself.

  The identical wording to the Nebraska statute. So in the year 2000, 
the Supreme Court ruled this language unconstitutional. Yet we come 
back today with exactly the same language that was already rejected by 
the Supreme Court, and we are supposed to vote on this without any 
intervening committee hearing, without having people come before us and 
suggest that if you are going to approach this again, you certainly 
don't want to go down the same path as the Nebraska statute.
  So the Senator's motion to commit is basically to take the language 
rejected by the Supreme Court--the language before us now--back to 
committee so that whether you are for or against this amendment, you 
can at least concede the obvious--that this language has already been 
rejected.
  What we are going through here is, frankly, not a very productive 
undertaking. Is that the Senator's suggestion with the motion to 
commit?
  Mrs. BOXER. Yes. I thank my friend. As an attorney, as he is, and as 
a member of the Judiciary Committee, he understands that this is in 
fact a wasted amount of time because there are so many other issues we 
could be dealing with here regarding the people of our country, who are 
struggling now under terrible economic times and are worried about 
foreign policy problems; and we are spending time on an extremely 
emotional issue. There is no question it is very difficult for this 
Senator to be here talking about it, because it deals with a situation 
where I believe the health of women could be jeopardized and doctors 
could be put in jail for trying to do the best for their patients. The 
other side gets very emotional as well. In the end, we have a piece of 
legislation that doesn't pass constitutional muster and this will be 
brought back again.
  So it seems to me the intelligent thing to do is to bring it to the 
committee and make sure that this bill, as Senator Santorum says, meets 
the constitutional issues that were raised. Experts tell me it does 
not. The record is replete with references that colleagues on the other 
side thought the Nebraska case would pass constitutional muster and it 
did not either.
  I also would like my friend to see a comment made by Senator Nickles 
regarding the importance of going to committee because I think it 
stands out here as a way to make the point that, whether you are a 
Democrat or Republican, you should respect the fact that we have 
committees for a reason. When a bill bypassed the committee, he said he 
was very disappointed in this process, and this process should not be 
repeated, so that we can have bipartisan input, have the legislative 
process work, have hearings so people know what they are voting on, et 
cetera.
  I think what we are doing makes a lot of sense because it impacts the 
health of women, the lives of women, and life and death itself, and it 
ought to go back.
  Mr. DURBIN. Mr. President, I think two things ought to be brought up 
as part of the motion to commit. The first is that we are considering 
language already rejected by the U.S. Supreme Court--a 5-to-4 vote, by 
a fairly conservative Court. Yet we are being asked to vote on it again 
today. That does not suggest a learning process. It suggests that 
people are stuck in a political position that they are going to keep 
bringing up over and over again regardless of the Court. So the 
language is identical.
  The second thing the Supreme Court said when they rejected the 
Nebraska statute still applies to this, and that is that there is no 
health exception, no situation where a mother's health situation is 
taken into consideration when an abortion procedure is allowed.
  I might ask the Senator from California this. I listened carefully--
and again I will defer to my colleague from Pennsylvania when it comes 
to his convictions and feelings on this issue; they are heartfelt, 
real, and sincere. I cannot listen to him without coming away with that 
impression. He said he believes that if every American could come into 
a medical setting and watch this abortion being performed, they would 
understand his position.
  I would like to ask the Senator from California: Couldn't the same 
thing be said of the women who are finding late in their pregnancies 
that there has

[[Page 5883]]

been a terrible complication which has occurred, which threatens their 
lives, threatens their health? Couldn't we also say, if you could sit 
down in a waiting room with a mother-to-be and her husband who have 
just been given tragic news at the end of what they thought was a 
normal pregnancy, and that in fact it is not normal, there are terrible 
complications, and that continuing this pregnancy may threaten this 
mother's life or threaten her ability to ever have children again? I 
wonder if you invited all of America into that waiting room to anguish 
with these parents, what their conclusion would be.
  I say to the Senator--and I ask for a response--there is no doubt 
about this. This is a painful and emotional issue on both sides. But in 
fairness, it has to be said that the other side is arguing they don't 
want to take into consideration the health of the mother, they don't 
want to create an exception for a mother in desperate circumstances, 
facing a medical crisis that is threatening her health and ability to 
ever bear another child.
  In honesty and fairness, should we not be talking about both sides of 
this equation? I ask the Senator to respond.
  Mrs. BOXER. I say to my friend that that is the whole point. When you 
are dealing with these emotional, difficult, terrible issues, you have 
to look at all of that. That is why, on our side, we are willing to say 
we would ban all late-term abortions, as the Senator's bill would do, 
except for life of the mother and, in your case, a health exception 
which is a pretty tough health exception.
  Mr. DURBIN. Grievous physical injury.
  Mrs. BOXER. I am going to support you. I am also going to support 
Senator Feinstein's, which gives a little more leeway to the patient 
and the doctor. The point is that is the right approach to balance the 
fetus's rights and the mother's rights.
  That is the whole point of Roe and why it was such a reasoned, 
reasonable, and moderate decision because all of this is difficult. For 
us to outlaw medical procedures which doctors tell us are necessary--
and my colleague keeps saying they do not. I put in the Record the 
letter from the OB/GYNs, 45,000 strong, who say do not do away with 
this procedure and, if you do, make a health exception.
  I have told stories and I want to quickly go through one--how much 
time do I have remaining on my side?
  The PRESIDING OFFICER. Fourteen minutes, 40 seconds.
  Mrs. BOXER. Can I be told when I have 5 minutes remaining?
  The PRESIDING OFFICER. The Chair will advise the Senator.
  Mrs. BOXER. I thank the Chair. Mr. President, I say to my friend, he 
posed a very good rhetorical question which was: Does the Senator 
believe if people could hear these stories of the women and their 
families who are going through these choices, would they not also be 
touched and be moved? The answer is clearly yes.
  I wish to tell my colleague about Coreen Costello who went through 
this procedure. I want to tell you how she defines her own ideology and 
religion. She says:

       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.

  She was told the muscles of the baby she was carrying 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 and, as 
a result, the excess fluids were puddling in her uterus. They tried 
desperately to save the pregnancy.
  She said:

       We wanted our baby to come on God's time, and we didn't 
     want to interfere. We chose to go into labor naturally.

  Eventually she was told if she did that, she could die.

       We asked our pastor to baptize her in utero. We named her 
     Catherine Grace, Catherine meaning ``pure'' and Grace 
     representing God's mercy.

  We talk about the problems families face. These families are 
desperate to do the right thing for the family, for the child in utero, 
and eventually she had to have this procedure that the Senator wants to 
outlaw. She said it saved her life and it saved her health, and it was 
the only choice she had to save her fertility. She said:

       Losing our daughter was the hardest thing we ever 
     experienced.

  She said it has been difficult to come to Washington and tell her 
story.
  Mr. DURBIN. If I may ask the Senator a question.
  Mrs. BOXER. Yes.
  Mr. DURBIN. I have heard that story, and I have personally met a 
woman from my State who faced a similar medical crisis, Vikki Stella, 
of Naperville, IL, a mother of two children who was pregnant with her 
third, anxiously awaiting the arrival of this little boy and learned 
very late in her pregnancy, much to her surprise, that her poor child 
was so deformed and abnormal that it could not survive outside the 
womb. The child was destined to die almost immediately after birth.
  Of course, some people would say at that point: Why not just finish 
the pregnancy? Why do you have to do anything? Her doctor said to her, 
unfortunately: You are not the healthiest person in the world even as a 
mother of two children. You have a diabetic condition, and you have the 
chance of complications. Therefore, her doctor recommended that she 
terminate that pregnancy, using the same procedure which would be 
outlawed, banned, prohibited by this legislation.
  Her husband was a practicing physician who was then in private 
business. She said in her testimony she almost had to be carried out of 
the waiting room after she was told this devastating information. They 
went home. I talked with her. She said they had sleepless nights about 
what is the right thing to do: Should I go ahead and risk my life and 
my health and finish this pregnancy or what?
  They finally came to the conclusion that the best thing for her, her 
health, and her family was to go ahead and terminate the pregnancy of 
this poor malformed fetus that would never survive, and she did it. 
They used the very procedure which the Senator from Pennsylvania would 
prohibit and ban. The last time I saw her was here on Capitol Hill. She 
was pushing a stroller with her new baby boy.
  I say to the Senator, a lot of this debate is premised on false 
premises that women that late in pregnancy would not take the 
termination of a pregnancy very seriously. I do not believe that. I 
think the overwhelming majority of women that late in a pregnancy are 
not going to end the pregnancy unless there is some extraordinary 
situation. That somehow the women who make this decision really never 
wanted to have a baby--look at Vikki Stella. Look at Mrs. Costello and 
others. They had a family and were hoping to add to their families. 
Frankly, there are lots of options which they could choose.
  I say to the Senator from California, isn't that what we are finding, 
that these are extraordinary medical situations where we are asked now 
in the Senate to impose our medical judgment over the judgment of an 
obstetrician, over the judgment of a family doctor? We are going to 
make the medical decision on the floor of the Senate, a decision which 
should be made in a hospital, in a clinic, in a doctor's waiting room; 
isn't that what this comes down to?
  I ask the Senator from California if she sees it as an issue that 
brings that kind of decision to the forefront.
  Mrs. BOXER. I say to my friend, no one can be more eloquent than he. 
I think this whole debate is about Senators thinking they know more 
than families, doctors, the ability of families to sit around and 
choose the safest option in a real emergency situation.
  My colleagues say it is not an emergency; the procedure takes 3 days. 
That does not even make sense to me. I think if you find out you are 
going to have a cancer operation and it takes a long time, it still is 
an emergency. The fact the procedure takes a while probably indicates 
it is even more of an emergency.
  We have a lot to do. We have a lot of responsibilities. I do not want 
to do harm. I think that by sending this bill

[[Page 5884]]

to the committee of jurisdiction to further explore the constitutional 
ramifications of this bill, which is legally identical to a law that 
was ruled unconstitutional by the Supreme Court, is the right thing to 
do. To listen, again, to some of the people who have lived through this 
is the right thing to do.
  To do no harm is the minimum we should be doing. I think when the 
Senator offers his amendment to have a pretty narrowly drawn health 
exception, it ought to win because how do we stand here and say we have 
a heart when we ignore stories like Vikki Stella's?
  Mr. DURBIN. If I may ask the Senator, too, after most of the debate 
yesterday, Senator Santorum came to the floor and told a very 
compelling story about a little girl who was born with some serious 
health defects and who survived and prospered. He showed us a beautiful 
photograph--which I am sure he is going to refer to again--of this 
little girl who had survived and conquered all of these challenges.
  I ask the Senator from California, we all know these stories and we 
admire the courage of the parents and of the children who make it, but 
doesn't the Senator from California believe, as I do, that we should 
have adopted the Murray-Reid amendment yesterday which would have 
guaranteed health insurance coverage for uninsured mothers with these 
children who are struggling with all of these medical problems? Doesn't 
the Senator believe that if we are truly committed to these families 
and these children that Senator Murray and Senator Reid have the best 
approach in terms of family planning information so that they have 
wanted pregnancies and that they have health insurance for these 
children?
  Does the Senator believe, as I do, that if one is committed to these 
children, these mothers, and these families, they should also be 
committed to health insurance coverage so they can have the care they 
need to survive and prosper?
  Mrs. BOXER. I absolutely supported the Murray-Reid amendment, as did 
my colleague. I was stunned at how many people on the other side of the 
aisle, who stood up and defended the rights of the fetus, somehow 
cannot defend the rights of a child. It is a stunning thing to me to 
see people, who are speaking so eloquently on this, vote against the 
Murray-Reid amendment to help poor children get the help they need, to 
help them get the medical attention they need.
  We ought to think about the pictures of these women, with their 
families, who faced this. This is not an issue that is an abstraction. 
It is an issue about real families struggling. And being told that to 
save the woman, to save her ability to have future children, to make 
sure she does not wind up paralyzed or with a stroke, that she have a 
chance, this Senate is going to move to outlaw this procedure, that 
could do that for this woman without a health exception--I think it is 
cruel. I think it is wrong. I think it is sad. I think it shows a lack 
of humility. And I hope the people of this country will understand what 
we are talking about: The willingness of the pro-choice Members of this 
Senate to outlaw all late-term abortion as long as the life and the 
health of the mother are excepted.
  I thank my colleagues for listening, and I retain the remainder of my 
time.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, to address a few issues the Senator from 
California spoke about, I made a comment about her calling this bill 
identical, and she said she did not call it identical, that she called 
it legally identical.
  I quote from the unofficial record from 6:51 p.m. Monday on the floor 
of the Senate, the Senator from California: The Supreme Court said in 
an identical bill, it is far broader than just one procedure--identical 
bill.
  The Senator from Illinois just repeatedly said this is the exact same 
bill, exactly the same language--``identical bill.'' The Senator from 
California said that is correct. So she is saying this is an identical 
bill, and then she suggested we need to send it back to committee 
because we need hearings because it is a changed bill. Which is it? Is 
is a changed bill or an identical bill?
  It is not an identical bill, I concede that point to her. It is 
different. The language is substantially different. The Senator from 
California said: We meant to cover more than one procedure with this 
language.
  Why would we want to do that? The Supreme Court said: The reason we 
are striking down your language is that we believe it covers more than 
one procedure. So we are going to craft language so the Supreme Court 
can come back and say, well, it covers more than one procedure?
  Maybe my colleagues think we are not serious about banning this 
procedure. Let me assure them, I am serious as a heart attack about 
banning this procedure, and we have crafted language to do just that, 
and only that.
  The language is different. It is not identical to the Nebraska 
statute. The Nebraska statute said, as the previous bill we considered 
on the floor, that a partial-birth abortion is performed in which the 
person performing the abortion deliberately and intentionally 
vaginally:

     delivers some portion of an intact living fetus until the 
     fetus is partially outside the body of the mother.

  The new language says:

     deliberately and intentionally vaginally delivers a living 
     fetus until, in the case of a head presentation, the entire 
     fetal head is outside the body of the mother, or, in the case 
     of a breech presentation, any part of the fetal trunk--

  That means the arms, legs, trunk--

     past the navel is outside the body of the mother.

  Now, that is substantially different. It is not an identical bill. It 
is much more specific, to address the very issue the Court wanted us to 
address in the Stenberg v. Carhart case. So we are very clear. This is 
not vague, and this is an honest and sincere attempt to meet the 
constitutional strictures of the Supreme Court decision.
  I will address Senator Durbin's and Senator Boxer's point on some of 
the special cases, but the Senator from Minnesota is in the Chamber and 
I yield 10 minutes to him.
  The PRESIDING OFFICER (Mr. Fitzgerald). The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I do not know if there is an issue we 
face in this Senate that is as charged and certain to elicit a whole 
range of emotional responses as the issue of abortion. A lot of us 
bring very passionate perspectives to this. My wife Laurie and I are 
parents of two children who were destined to die. Our first son, Adam, 
was born with a genetic condition that we found out about at the time 
of birth, at delivery. He lived for a very short time, not more than a 
couple of months. As a result of that, I can say that my sense about 
the value of life was forged in steel, that each life is precious, that 
each life has value. That is the perspective I bring.
  Ten years ago, our fourth child, our last daughter, Grace--in between 
we have a son Jacob, who is going to be 17 tomorrow, Thursday, and a 
daughter Sarah, who is 13, but our daughter Grace was born with the 
same condition. We knew about a week before that she was going to have 
this genetic condition which is very rare.
  My wife gave birth. We cared for Grace for a couple of months. We 
brought her home from the hospital very quickly. We knew she was 
destined to die. We made that choice for Grace to be part of our life, 
because we understand the incredible value that every life gives, that 
every life has, that every life is a gift from God.
  I recognize that my friends across the aisle have heartfelt and 
passionate beliefs on the other side of the abortion issue. I 
understand that. We disagree. But in this debate about partial-birth 
abortion, this debate in which we talk about a child partially 
delivered and then crushing its skull, this debate is one in which 
Minnesotans certainly, I believe, and Americans at large, can find 
common ground. This should be an issue which, in spite of one's 
position on the life issue, in spite of their views on abortion 
generally--this issue is one in which we should come together and agree 
to ban partial-birth abortion. As divisive as the issue of abortion is,

[[Page 5885]]

there are a few things in which we can find common ground.
  It is not part of this debate, but I have to tell this story. A while 
ago, my 13-year-old went to get her ears pierced. I received a call 
from the folks who wanted to pierce her ears wanting to know if dad 
said it was okay. They had to have parental consent. I think most 
Americans and most Minnesotans would say that makes sense. If it is 
true for having one's ears pierced, it should be true for abortion.
  Even on this divisive issue, there are those things that we, as 
Americans, can agree on and say let's move together, let's find the 
common ground, and banning partial-birth abortion is one of them. It is 
time to put an end to this gruesome procedure that claims the lives of 
thousands of unborn children every year. It is time to ensure that no 
child suffers this violent, tragic death.
  We are under assault in this country. I have watched the debate and I 
respect the work of my distinguished colleague from Pennsylvania. In 
this debate, we have been besieged by a campaign of falsehoods about 
what this issue is about. It is about partial-birth abortion.
  Some say that the procedure is rarely performed; we do not need to 
deal with it. If it was performed even one time, most Americans would 
say is wrong and must be stopped.
  So we are doing the right thing by finding common ground on this 
divisive issue and banning partial-birth abortion.
  A recent survey by the Alan Guttmacher Institute, an affiliate of 
Planned Parenthood, released in January of 2003, reported that 2,200 
partial-birth abortions were performed in 2000. In 1997, the executive 
director of the National Coalition of Abortion Providers estimated that 
approximately 3,000 to 5,000 abortions were performed by that method 
annually. This means that anywhere between 6 and 14 children die every 
day as a result of partial-birth abortion. This bill is a significant 
piece of child protection legislation and, again, one in which we 
should find common ground in spite of and regardless of one's position 
on abortion.
  Abortion providers would have people believe this procedure is 
currently only performed when the mother's life is threatened or the 
fetus is deformed. This is simply not the case. Ron Fitzsimmions, 
executive director of the National Coalition of Abortion Providers, has 
stated:

       In the vast majority of cases, the procedure is performed 
     on a healthy mother with a healthy fetus, as reported in the 
     New York Times.

  My colleague, the distinguished Senator from Illinois, has offered an 
amendment that he believes offers a reasonable compromise to provisions 
contained in S. 3. Sometimes your friends want to love you to death. In 
the guise of saying they will help, they want to kill what we are 
trying to do. What we are trying to do is very simple in this bill. It 
is very specific. It is very clear. It is uncomplicated. We are trying 
to ban a gruesome procedure known as partial-birth abortion. That is 
what this is about.
  The Senator's amendment seeks to make it unlawful to abort a viable 
fetus unless a physician, prior to performing an abortion, certifies 
the continuation of the pregnancy would threaten the mother's life or 
risk grievous injury to her physical health.
  In this case, the exception swallows the rule. The word ``viable'' 
makes the ban on partial-birth abortion virtually meaningless, as a 
large majority of the procedures are believed to be performed during 
the second trimester, and the term ``viable'' will likely be read by 
the courts to include only third-trimester abortions.
  Further, there is no requirement to certify whether the unborn child 
is, in fact, viable. The capacity for a baby to survive independently 
of the mother with technological assistance is currently reached in the 
late weeks of the second trimester. Without certification of viability, 
there is little or no new protection against the partial-birth abortion 
procedure.
  Equally alarming, this amendment requires that there be a risk, not 
significant risk--not even slightest risk--but risk to the mother's 
health. There is a risk involved in almost every type of medical 
procedure, including delivering a baby. In the guise of seeking to 
offer some common ground, what we really have--and folks have to 
understand it for what it is--is an attempt to try to kill what is a 
very clear, very straightforward, very unequivocal, very heartfelt, and 
a very strong consensus-building effort to move together on this 
divisive issue of abortion. We want to say that in the Senate we 
understand there is common ground, and that common ground is to put an 
end to partial-birth abortion.
  The amendment from my distinguished colleague from Illinois offers no 
new protection against this violent procedure for unborn children, as 
the loopholes in the amendment are so large. It is time to stop this 
inhumane, gruesome procedure. It is the right thing to do, and this is 
what the American people are asking us to do. The people in Minnesota 
are asking it. I have received scores of messages and letters from 
folks saying move forward on this effort. It is the right thing to do.
  Again, this issue is divisive. We bring deep, personal stories to the 
debate. In the final analysis, we have before us a common ground, clear 
common-sense thing to do, and that is put an end to this gruesome 
procedure.
  I thank the Senator from Pennsylvania and stand in solid support with 
him.
  I yield the floor.
  Mr. SANTORUM. How much time remains?
  The PRESIDING OFFICER. The Senator has 11 minutes and 9 seconds.
  Mr. SANTORUM. I yield to the Senator from Illinois 7 minutes.
  Mr. FITZGERALD. I thank my colleague from Pennsylvania for the 
excellent work he has been doing on this ban on partial-birth abortion. 
I am an original cosponsor of Mr. Santorum's bill. I applaud him for 
his hard work and toil on this issue, not just this year but for 
several previous years. In fact, Senator Santorum has been working on 
this issue for some 7 years.
  When you reflect that it has taken this long for this body to get to 
this date where we are close to having a vote and we hope the bill will 
pass and be signed by the President, you have to wonder what kind of a 
society have we become that it has taken us so long to get to the point 
where we are close to banning what to me seems to be a very cruel and 
inhumane procedure. It has been made abundantly clear, both in this 
debate and in many Senate committee hearings on prior occasions, that 
banning partial-birth abortion is a simple step those of us on both 
sides of the abortion issue should be able to coalesce and find common 
ground over.
  We are talking about banning a specific procedure in which a baby is 
partially delivered, scissors are stuck in the back of the baby's 
skull, a vacuum suction tube is inserted into the skull, and the baby's 
brains are sucked out. We are banning this type of abortion only. Can 
we not agree this is too cruel and inhumane a procedure to allow in the 
United States? As Senator Santorum has said, we are not banning other 
types of abortion.
  I am struck that several times in the 4-plus years I have been in the 
Senate, we have on several occasions had debates on the Senate floor 
and votes in the Senate about banning cruel and inhumane treatment of 
animals. In fact, I remember several years ago we had a debate over an 
amendment brought by Senator Torricelli that would prohibit the use of 
funds in the Interior budget to facilitate the use of steel-jawed traps 
and neck snares for commerce or recreation in a national wildlife 
refuge.
  During the debate on this amendment, my friend and colleague from 
Nevada, Senator Reid, described the amendment to ban steel-jawed traps 
and neck snares as a ``no brainer.'' My colleague went on to say: 
``These traps are inhumane. They are designed to slam closed. The 
result is lacerations, broken bones, joint dislocations, and 
gangrene.'' In concluding, Senator Reid stated: ``In this day and age 
there is no need to resort to inhumane methods of trapping.''

[[Page 5886]]

  Many Members were persuaded. I was persuaded. I voted to protect the 
animals out West, the coyotes, wolves, and bears that were being 
inhumanely trapped in these steel-jawed traps and neck snares. Why were 
many of us persuaded? Why were we all troubled by steel-jawed traps and 
neck snares? Is it because there is something in our gut that turns and 
twists over the unnecessary suffering and pain of creatures with whom 
we share this Earth; the majestic animals who are as much a part of 
God's wonderful creation as we are; wonderful animals who add richness 
and texture to our own experience of the planet; animals whom we thank 
God for allowing us to appreciate and admire?
  The suffering of a bear or a deer can lead many of us to say no to a 
steel-jawed trap or neck snare, but what about the scissor through the 
head and neck of a child? What about sucking a baby's brains out? We 
would not treat a mangy raccoon this way.
  I remember a couple years back the Senate acted to do more to fight 
the inhumane treatment of dolphins. I remember supporting an amendment 
offered by my friend and colleague, Senator Boxer, to the fiscal year 
2000 Commerce, Justice, State appropriations bill to force countries to 
pay their fair share of the expenses of the Tuna Commission and delay 
the importation of tuna caught using fishing methods that unnecessarily 
harm and kill dolphin. During debate on this amendment, Senator Boxer 
spoke eloquently of the thousands of dolphin killed each year by 
fishing methods that cruelly and unnecessarily harass, chase, circle, 
maim, and kill dolphin that happen to be swimming over schools of tuna. 
I appreciated her efforts and others' efforts in the name of 
humaneness.
  I believe our Maker has touched our human conscience with something 
that makes us almost instinctively recoil from causing unnecessary pain 
and suffering to animals. I know there is a tender spot in the hearts 
of some who now oppose a ban on this cruel and inhumane procedure. I 
know it is there because I have seen it in debates in this body. But I 
don't understand how those who can hear the howl of the wolf or the 
squeal of a dolphin can be deaf to the cry of an unborn child.
  If people were sticking scissors in the heads of puppies, we would 
not abide it. In the name of common decency and humanity, I urge my 
colleagues not to let this happen any longer to our own young. I 
applaud Senator Santorum for the good work he has been doing. We will 
keep fighting until we get this ban enacted into law.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. I thank the Senator from Illinois for his support both 
here on the floor and things that we have done off the floor to get 
support for this legislation. He has been one of the champions. I 
appreciate his support as well as that of the Senator from Minnesota, 
his very heartfelt support for this legislation and the very touching 
personal story he related to the Senate.
  How much time is remaining on both sides?
  The PRESIDING OFFICER. The Senator from Pennsylvania has 3 minutes 10 
seconds. The Senator from California has 3 minutes 53 seconds.
  Mr. SANTORUM. Mr. President, just to reiterate, I do not believe we 
should support the motion to commit. As I stated before, this is a 
piece of legislation we have had on the Senate floor. This is the fifth 
debate on the floor of the Senate. The Judiciary Committee has held two 
hearings and reported the bill out.
  It is not exactly the same. As I said before, it is not identical. We 
have addressed issues of health and vagueness, but the substance is the 
same. We are talking about the same thing. We are talking about 
changing roughly 20 words in the statute. I think that is a small 
enough change for Members of the Senate to digest without the Judiciary 
Committee going through and giving its opinion.
  The Senator from Utah, Senator Hatch, came to the floor and addressed 
the issues. Other members of the Judiciary Committee have been here and 
done likewise, many of whom are cosponsors of this ban.
  I believe this is, frankly, going to delay consideration of this 
legislation. It will not have any impact or import in the long run to 
our deliberations. I think Members of the Senate are fully able to make 
this decision at this time being well versed after this debate.
  We have had a good debate over the last 3 days. We will continue to 
do so, prior to passage. I think it is time to move forward. I hope my 
colleagues will join me in opposing the motion to commit.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I want to start by answering Senator 
Fitzgerald, who complimented me on my work. We have worked together on 
saving dolphin and others. But since he couched it in the form of an 
attack, I think I would like to respond in this way.
  My whole life has been dedicated to protecting children, women, the 
elderly, the infirm, and that is what my current position on this issue 
reflects. I want to ensure pregnancies are safe, that women have 
prenatal care so they have healthy babies and, yes, when a woman faces 
a crisis pregnancy, that she can be saved--women, like some of the 
women in the Senator's own State of Illinois, who have to choose this 
particular procedure that would be banned by his vote, without even an 
exception for the health of a woman. I find that position to be 
inhumane.
  I want abortions to be safe, legal, and rare. I have to say to my 
colleague from Illinois, if he wants to go back to the days when 
abortions were illegal, I could share some stories about people I knew 
who were made infertile, and many whom I have read about who died. If 
you want to go there, we will talk about it.
  But right now we are talking about a bill that is a very important 
bill because it bans a procedure that women need to have available to 
them on rare occasions. Because we are talking about a bill that is 
legally identical--if I didn't use the term ``legally identical'' in 
every case, I apologize--we are talking about a bill that is legally 
identical to the bill that was declared unconstitutional by the Supreme 
Court.
  Senator Leahy agrees. He is the ranking Democrat on the Judiciary 
Committee. I will ask unanimous consent to have printed in the Record, 
if it has not been done so, his statement.
  He says:

       Senators deserve the benefit of full consideration and 
     vigorous debate before they are asked to cast a vote on such 
     a significant and complicated issue.

  He says:

       The Judiciary Committee has not had an opportunity to fully 
     debate the pros and cons of this issue in a hearing since 
     1997.

  I would say to my colleagues, to heed the words of their own 
leaders--Senator Don Nickles, who excoriated Democrats for bypassing 
the committees instead of bringing a bill to the floor, in which he 
said:

       Bypassing the committee should not be repeated by Democrats 
     or Republicans. We have committees for a purpose so we can 
     have bipartisan input, so we can have the legislative process 
     work, so we can have hearings on legislation so people can 
     know what they are voting on.

  It is the height of irresponsibility, it seems to me, when we are 
talking about a bill that would deny a procedure that 45,000 OB/GYNs 
say is sometimes necessary to save the health of the mother, not to 
have a hearing on this particular piece of legislation since we have 
not had one in a very long time and the Supreme Court chastised those 
who wrote the Nebraska law because, they said, it did not really make 
any exception for the health of the woman even though the kinds of 
risks that she faces are very serious.
  Let's take a look at the risks that doctors tell us women face: 
Hemorrhage, uterine rupture, blood clots, embolism, stroke, damage to 
nearby organs, and paralysis.
  So I say to my friends who come here with such compassion in their 
heart, to be compassionate toward the mothers, too, to understand what 
they may face.

[[Page 5887]]

Let's send this to the Judiciary Committee. That is where it should be. 
Let them take a look at it and bring it back up.
  I yield the floor.
  Mr. LEAHY. Mr. President, when Senator Santorum introduced S. 3 on 
February 14, the leadership immediately placed the bill on the Senate 
Legislative Calendar, bypassing committee consideration of the bill. I 
rise today to support the motion to commit the bill for consideration 
by the Judiciary Committee.
  Senators deserve the benefit of full consideration and vigorous 
debate before they are asked to cast a vote on such a significant and 
complicated issue. In fact, the Judiciary Committee has not had an 
opportunity to fully debate the pros and cons of this issue in a 
hearing since 1997. Since that time, we have welcomed many individuals 
to the Senate, and to the Judiciary Committee, who were not members of 
this body when the bill was last debated. In addition, since our last 
Committee hearing, there has been judicial review of similar 
legislation, including a Supreme Court decision, that should be fully 
vetted by the Judiciary Committee.
  The committee referral process is there for a reason and we ought to 
respect it. My colleagues on the other side of the aisle have 
repeatedly called for the Senate to follow these well-established 
practices.
  For example, the distinguished senior Senator from Oklahoma 
complained in relation to the prescription drug bill last year: ``What 
happened to the committee process? Shouldn't every member of the 
Finance Committee have a chance to say, `I think we can do a better 
job?' Maybe we can do it more efficiently or better. No, we bypass the 
committee and take it directly to the floor.'' Other senior Republican 
Senators likewise complained about the need to involve Senate 
Committees and their expertise in development of prescription drug 
legislation, energy legislation and many other matters. How quickly 
they have changed their position. I have some respect for the Senate's 
established procedures and processes. I urge all Senators to support 
the motion to commit this matter initially to the Judiciary Committee 
for a hearing and committee consideration. With Senator Hatch as the 
committee chair and with a majority Republican membership, I do not 
understand what the Republican majority fears by having fair 
proceedings before the committee before the Senate is asked to take 
final action.


                           Amendment No. 259

  The PRESIDING OFFICER. All time under the previous order has expired. 
Under the previous order, the Senate will now resume consideration of 
the Durbin amendment, No. 259.
  Under the previous order, there will now be 1 hour of debate equally 
divided on the amendment.
  The Senator from Illinois.


                     Amendment No. 259, As Modified

  Mr. DURBIN. Mr. President, I send a modification of my amendment to 
the desk.
  The PRESIDING OFFICER. Is there objection to modifying the amendment? 
If not, the amendment is so modified.
  The amendment (No. 259), as modified, 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''.

     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, 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), that, in his or her best medical 
     judgment, the abortion performed was medically necessary 
     pursuant to this chapter; and

[[Page 5888]]

       ``(D) a certification by the physician performing an 
     abortion under a medical emergency pursuant to section 
     1531(c), 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. Mr. President, with no objection, let me explain what I 
have done because it is significant. I want to make it clear at the 
outset of this debate what I have done. If either side wishes to 
address it, I want to explain my rationale.
  In the original version of the amendment we said if the doctor 
certified that a woman who was pregnant was eligible for a late-term 
abortion, certifying that her life was at stake if she continued the 
pregnancy, or that she faced the threat of grievous physical injury--if 
a doctor made that certification, we wanted to make certain it was the 
truth. We provided in this bill that a doctor who knowingly certified 
that a woman was eligible for a late-term abortion when he knew it was 
not true ran the risk of losing his medical license, would no longer be 
able to practice medicine, and for the first offense a fine of 
$100,000, for the second offense a fine of $250,000.
  There was also a provision later in the same bill which subjected 
that same doctor to a potential criminal penalty for perjury.
  I have spoken to some doctors who have said to me: Senator, 
understand, even if a mother's life is at risk, what you are asking 
this doctor to decide, that he is willing--he or she is willing to risk 
their medical license to ever practice medicine again, face a fine of 
$100,000, and go to prison--how many doctors do you think, even under 
the most difficult circumstances, would then undertake getting involved 
in terminating a pregnancy even if a mother's life is at stake?
  I have thought about that. I rolled around last night thinking about 
that. I came to the conclusion they are right. I think it is a 
sufficient penalty to say that a doctor who misrepresents on this 
certification whether a mother's life is at stake or she faces a 
grievous physical injury could lose his license to practice medicine 
and face a substantial fine.
  The modification which has been accepted here removes the criminal 
penalty. But even the criminal penalty, which might be 2 years, is 
something that comes and goes. Losing your medical license for a 
lifetime is certainly a penalty felt by that person for the rest of his 
or her natural life.
  I made this modification. There will be some who will say you have 
weakened this bill. I don't think the loss of a medical license and 
facing a fine is a weakening of this bill to the point where doctors 
are now going to be less vigilant in making certain that they enforce 
the provisions of my approach and my amendment.
  Having said that, and having explained what I have done this morning 
with this modification, and addressed the concerns of doctors and those 
of my colleagues who raised it, let me go to the heart of the issue.
  We have talked today about a gruesome abortion procedure. I am still 
touched by it every time it is described. Any sensitive human being 
would be touched by it. But I will tell you there is no abortion 
procedure which, if it is described in detail, would not touch your 
heart. You are talking about the elimination of a fetus, whether viable 
or not. You are talking about gruesome surgical circumstances. Why in 
the world do we allow this to happen in America?
  In the earliest stages of the pregnancy, we say we don't believe the 
fetus has reached the point of being a person. The argument about 
whether the joining of the sperm and the egg creates a person has been 
going on for centuries. Different religions, different cultural 
traditions, different countries, and different leaders have come to 
different conclusions. Even people in medicine can't quite tell you 
when it becomes a person.
  So the Supreme Court in Roe v. Wade came up with some definitions in 
trimester terms--the first three months, the second three months, and 
last three months of pregnancy. They basically said in the first 3 
months if a woman learns she is pregnant, it is basically her decision 
as to whether she wants to continue with the pregnancy or end it. In 
the second three months, a more complicated decision. But in the last 
three months--the seventh, eighth and ninth month of the pregnancy--the 
Court has made it clear we will not terminate the pregnancy in that 
situation unless there are compelling circumstances involving a threat 
to the life of the mother or a threat to the mother's health.
  We have to put this conversation and debate into context. We are 
talking about the termination of a pregnancy through an abortion 
procedure where we have reached such a medical crisis that a doctor 
says to a woman, I have to tell you, if you continue this pregnancy, it 
could threaten your life. You may never bear this child because of the 
complications of this pregnancy, because you may die or I can tell you 
this: You may go through this pregnancy and run the risk of endangering 
your health permanently.
  You say to yourself: What kind of endangerments would lead a woman to 
terminate a pregnancy late in the pregnancy? Senator Boxer has listed 
them. You could be dealing with a uterine rupture in a pregnancy where 
the woman understands that if she continues the pregnancy, she may 
never be able to bear another child.
  These are not theoreticals or hypotheticals dreamed up by Senate 
staff and Members of the Senate. These are told us by doctors and by 
obstetricians who literally have to sit across the desk from a mother-
to-be and say, I have terrible news. Something has happened we never 
anticipated. This late in the pregnancy you are facing something which 
you didn't think would ever happen: The possibility of a hemorrhage 
that could endanger your life, a uterine rupture that could endanger 
the ability to have a child, blood clots, embolisms, stroke, danger to 
your organs of a permanent nature, and even paralysis.
  I have spoken to women who have been through this. Believe me, this 
was not a casual, easy decision. These women, late in pregnancy, were 
counting the days when finally their back

[[Page 5889]]

stopped hurting them and finally they could get back to normal clothes 
and have the baby in their arms. They were waiting expectantly for 
that, only to learn at the last minute in the pregnancy something had 
happened that no one had anticipated.
  The amendment which I offer says let us make certain if we are going 
to draw the line on the termination of pregnancy late in the pregnancy, 
let us make certain we don't forget there are two things that need to 
be respected. One of those comes down to the basic premise of 
philosophy of the mother first. Hardly anyone argues with this. If it 
is a choice between the life of the mother and the life of a fetus, 
most religious traditions and most people would say, For goodness 
sakes, you save the mother. You save the mother.
  The Durbin amendment says you can only terminate the pregnancy late 
in the pregnancy, after viability, in the final trimester, give or take 
a few days, you could only terminate it if the mother's life is at 
stake. I hope there is no argument about that.
  The second part is equally important. This is the part where we have 
a division of opinion. We part company here in the Senate; that is, 
whether or not you should allow late-term abortions when a mother faces 
the possibility of a grievous physical injury, as I have described. I 
think you should. At least I think the option should be there.
  If some mother in that circumstance takes the heroic position that 
she may never be able to have another child, but she wants to go 
forward with this pregnancy, that is her decision. That is the decision 
for her and her family and conscience. It is one she can make.
  But what we are seeing here with the underlying bill is we don't want 
to create the possibility for that decision to be made. We want to 
foreclose the possibility that a woman facing the threat of grievous 
physical injury late in her pregnancy would make the decision to 
terminate the pregnancy.
  I think it is a mistake. I think we have pushed ourselves into 
medical judgment and medical decisions in a way we never should have 
done. Whether you are pro-life or pro-choice, should we not create an 
opportunity for that mother who has just been hit between the eyes with 
the knowledge that what was a perfect pregnancy has sadly gone the 
wrong way and that now if she continues that pregnancy she may endanger 
her life or endanger her ability to have another child?
  These are tough decisions.
  Mr. FITZGERALD. Mr. President, will the Senator yield for a question?
  Mr. DURBIN. As soon as I am completed, I would be happy to, and I 
will yield on the Senator's time and on his sides time.
  But I will just say if we are going to err in judgment here, let us 
at least err on the side of understanding that there are medical 
complications and there are medical problems which we cannot as simple 
lawyers and legislators even envision. Let us defer to the 
professionals, the obstetricians and gynecologists who have written to 
us and said, Please don't pass S. 3, the Santorum amendment. There are 
moments in time when we have to make critical medical decisions, and in 
those moments we have to do what is best for the woman involved here. 
Don't foreclose an opportunity. Don't tell us we cannot do it. Don't 
make it be prohibited under law.
  That, I think, is what this debate is all about. I will tell you that 
this amendment which I have offered does not have universal acceptance 
either on the pro-choice or the pro-life side. Even this morning a pro-
choice group notified me that people voting for the Durbin amendment 
are not going to be viewed in a popular and favorable light. I consider 
myself pro-choice in my approach to this decision. I know now that some 
pro-choice groups disagree with us because this amendment is very 
strict and very specific. It says when it comes to postviability 
abortions and late-term abortions, we are laying down very strict 
limitations and guidelines as to when you can be eligible for this.
  This says it isn't just a matter of a doctor performing the abortion 
reaching the decision. It is a matter that has to be confirmed by 
another doctor. An independent doctor has to certify, yes, if that 
pregnancy goes forward, that mother's life is at stake, if that 
pregnancy goes forward that mother is facing the risk of grievous 
physical injury, and if that doctor misrepresents the condition of the 
mother, that doctor stands to lose his medical license and faces fines 
up to a quarter of a million dollars. I think this is as tough as it 
can be, and as tough as it should be to make certain we don't have 
abortions in late-term pregnancies except for the most serious and 
tragic circumstances.
  Mr. President, I ask unanimous consent that Senators Harkin and 
Lieberman be added as cosponsors to my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I want to make four quick points. I had 
three and a half points as reasons to oppose the amendment, but now I 
have a full-fledged four reasons because of the modification that was 
just submitted.
  No. 1, this amendment is in the form of a substitute, so the 
underlying partial-birth abortion statute is gone. We do not ban 
partial-birth abortions under this procedure. It is gone. This 
procedure remains legal in the law of the land. This Durbin amendment 
is a substitute. If you want to ban partial-birth abortions, you cannot 
vote for the Durbin amendment because it eliminates the ban. That is 
No. 1.
  No. 2, it talks about this is a postviability ban. The problem with 
that is--there are many problems--No. 1, viability is not defined in 
the legislation, and it is solely up to the discretion of the 
abortionist performing the procedure.
  I ask unanimous consent to have printed in the Record the chart that 
I have on survival rates.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 
------------------------------------------------------------------------
                     Weeks                         Number      Percent
------------------------------------------------------------------------
22............................................            1            0
23............................................           42           36
24............................................           61           69
25............................................           77           71
26............................................           76           87
27............................................           92           83
28............................................          105           96
29............................................          100           95
30............................................          141           92
31............................................          184           96
32............................................          267           98
------------------------------------------------------------------------

  Mr. SANTORUM. And even up to 32, 33 weeks, you still have a 1, 2, 3-
percent chance where the baby would not be viable. So you have up until 
32, 33 weeks to basically say the child is not viable. If that is the 
case, this statute is not operative. You cannot even come in under it. 
There is nothing. The statute does not exist. All you have to do is say 
it is not viable. So you create an exception that swallows up the 
entire ban. That is No. 2.
  No. 3, even if, by some point, the abortionist will say it is viable, 
and then proceed with an abortion--which I cannot imagine any 
physician, in their right mind, doing; but assuming they would say it 
is viable and proceed with an abortion--they just have to say there is 
a risk of grievous injury to her physical health. The operative word 
here is ``risk''--a 1-percent risk, a .5-percent risk, a .001-percent 
risk--any risk.
  Now, ``risk'' is, again, not clearly defined and is open. What this 
statute does say is it is subject to a second opinion from a doctor. 
Great. The problem is, there is no penalty anymore. That was half a 
problem because I thought the penalties were rather weak. Now, with the 
elimination of any potential prosecution under perjury, there are no 
penalties.
  The Senator from Illinois says there could be a losing of your 
license. Well, that is not what his substitute says. It says the State 
has to develop procedures and requirements for what would happen if 
these things are violated. It does not say license revocation. It does 
not say that at all. It says they have to develop standards. And it 
could be suspension for a day for the first offense,

[[Page 5890]]

2 days for the second offense--half a day--it could be whatever the 
State would require it to be. And for the second offense, it is not 
that it must be revoked, it is not a must. It is an either/or. They 
could assess a fine. And the fine could be a dollar. It says up to 
$250,000, but it could be a dollar.
  So now, having removed any criminal sanction, you are left with it 
being completely open-ended, with potentially no consequence for 
someone not telling the truth in this circumstance.
  There are a whole host of other reasons this amendment does not work. 
But this amendment is fatally flawed. It was poor, in my opinion, as a 
substitute. But now it does not even have the criminal sanctions as 
even one potential hope for getting maybe some very late, third-
trimester abortions banned. So I just suggest, while I understand why 
the Senator from Illinois modified his amendment--to try to get more 
folks to be supportive of his amendment--in so doing, he guts whatever 
is left of this amendment to actually ban any abortions in this 
country. As a result of that, I strongly oppose the amendment.
  Mr. President, I yield 15 minutes to the Senator from Ohio.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I rise in opposition to the amendment to 
S. 3 that has been offered by my friend and colleague from Illinois. 
When the Senate considered the partial-birth abortion ban in 1999, we 
decisively rejected, in a vote of 61 to 38, a very similar amendment 
sponsored by my friend from Illinois. And, once again, I believe we 
should reject this amendment today.
  Let me say to my colleague and dear friend from Illinois, he is a man 
of great integrity, great passion, and great compassion. He is someone 
with whom I have worked on this floor on many different issues. I know 
we will work together again on other issues. We worked together a few 
weeks ago on an amendment that we were successful in getting the Senate 
to pass to add additional money for the worldwide AIDS effort.
  But I do believe the amendment he has offered--however well intended 
it is--is tragically flawed. The Senator from Illinois contends his 
current amendment would ban all partial-birth abortions after a fetus 
is viable unless two doctors certify that continuing the pregnancy 
would threaten the mother's life or risk grievous injury to her 
physical health. Now, this may sound very reasonable, and does. But in, 
reality, this amendment has loopholes so big that abortion providers 
would be able to continue to perform virtually all the partial-birth 
abortions they perform today.
  Why? Why do I say that?
  First, the amendment ties the availability of late-term abortions to 
the risk of grievous injury to the mother. That sounds reasonable. But 
let's be clear about this. Grievous injury is, of course, by 
definition, necessarily subject to the so-called medical judgment of 
the abortion provider. The effect of this amendment is ambiguous on its 
own terms because the term ``medical judgment'' has, of course, a great 
deal of built-in flexibility. Specifically, under the precedent set by 
the U.S. Supreme Court, in 1973, in the Doe v. Bolton case:

       Medical judgment may be exercised in the light of all 
     factors--physical, emotional, psychological, familial, and 
     the woman's age--relevant to the well being of the patient. 
     All these factors may relate to health. . . .

  That is from Doe v. Bolton.
  Clearly, this precedent shows us there is a wide range of factors 
that can legally be taken into account in assessing medical judgment, 
so many factors that they create a host of loopholes through which many 
partial-birth abortionists--such as Dr. Martin Haskell, whom I have 
referenced on the floor before, who lives in my home State of Ohio, in 
Dayton--could easily slip through.
  Further, under this amendment, who would make the call that the 
mother's life is threatened or that her physical health is at risk? We 
know the answer. Naturally, it would be primarily up to the abortion 
provider.
  Although in nonemergencies, the abortionist would need to get one 
other doctor to agree with him, the amendment of the Senator from 
Illinois contains a medical emergency clause which permits the 
abortionist to decide to do an abortion without certifying anything 
prior to doing the procedure. Even worse, Mr. President and Members of 
the Senate, in those situations when the abortionist declares an 
emergency, he or she does not need to get independent confirmation from 
anyone--from no one. In other words, it is totally up to the 
abortionist's discretion.
  In practice, in the real world, this likely means there will be 
absolutely no limit on the will of the abortionist. The doctor who will 
be certifying these procedures is a person like Dr. Haskell, a man who 
admitted that most of the abortions he already performs are elective--
elective. That is Dr. Martin Haskell, and that is what he does.
  Why do I talk about Dr. Haskell? I talk about him because I am 
familiar with him because he lives in my home State, but much more 
importantly, because he is typical of the people who provide these 
abortions. They are not your ``Dr. Welbys.'' They are not your typical 
OB/GYNs. They are not surgeons. They are people who do this day in and 
day out, and that is what they do.
  Let there be no misunderstanding. I want my colleagues, and I want 
the American people, to understand exactly who Dr. Haskell is and what 
it is that this man does for a living, what his livelihood is, what his 
mission is, what it is he does day in and day out to these innocent 
little babies. He kills them. That is what he does for a living.
  Let's make no mistake about it. This man is going to do everything he 
can to maintain his livelihood.
  He has a vested interest in performing partial-birth abortions. This 
amendment before us now is going to give him the ticket he needs to 
continue these procedures. The amendment by definition creates a 
loophole so big that Dr. Haskell and the other abortionists just like 
him could drive trucks through it. This amendment will allow them to 
continue to do what they do on a daily basis; that is, kill innocent 
babies, babies who, if given the chance, could be born and could grow 
up and could thrive and live productive lives and make positive 
contributions to our country.
  Ultimately my colleagues need to know and the American people need to 
know that Dr. Martin Haskell in Dayton, OH is not your family practice 
physician. He is not ``Dr. Welby.'' He kills babies. That is what he 
does for a living. This is the person who, under this amendment, 
tragically, would be charged with making the medical judgments. When 
Dr. Haskell needs to seek a second opinion, which is provided under 
this amendment, from a so-called independent physician as required 
under the amendment to determine if the procedure is necessary, who do 
you think he is going to ask? Do you think he is going to really ask 
the local family practice doctor nearby? We know he is not going to. He 
is going to ask one of his other abortion provider friends. We know 
that is what the truth is.
  That is the way the world works. That is what is going to happen. If 
anyone believes otherwise, they are not living in the real world. That 
is the world of abortionists; that is the way it is.
  In practice, this amendment would likely put no limit on the will of 
the abortionist. The doctor who will be certifying is a Dr. Haskell or 
someone like him or perhaps a third-trimester abortionist such as Dr. 
Warn Hern who wrote the textbook ``Abortion Practice.'' Dr. Hern has 
argued that the fact of an occasional death in childbearing can justify 
any abortion, no matter how late in pregnancy it is performed. As he 
stated in the May 15, 1997 Washington Times:

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

  So even a so-called grievous injury exception potentially would allow 
an abortionist to perform a partial-birth abortion on any pregnant 
woman.
  The second problem with the Durbin amendment is that its ban on 
partial-

[[Page 5891]]

birth abortions is practically meaningless because the amendment on its 
own terms only applies to a fetus that is already viable. It does not 
apply to a fetus that is not viable. We know the overwhelming majority 
of partial-birth abortions--it has been estimated over 90 percent--
occur between 20 and 26 weeks of pregnancy, not during the third 
trimester. Clearly, this amendment would not even apply to very many 
partial-birth abortions at all.
  Even worse, the determination of viability is left entirely within 
the discretion of the abortionist. In other words, this amendment would 
allow someone like Dr. Martin Haskell to make the very subjective 
decision whether or not a fetus is viable. The amendment would allow 
Dr. Haskell to decide whether or not he even wanted to comply with the 
amendment. We all know what his decision would be in these cases. In 
fact, my fear is this amendment would allow thousands of these gruesome 
procedures to continue to be performed in the fifth and sixth months of 
pregnancy, horrific and painful and inhumane procedures performed on 
healthy babies of healthy mothers.
  Yesterday I talked about Brenda Pratt Shafer, an experienced 
registered nurse who was assigned to an Ohio abortion clinic in the 
early 1990s. She witnessed partial-birth abortions. She saw what Dr. 
Haskell does for a living because she worked for a short time at Dr. 
Haskell's office. She testified before Congress about it. I would like 
to conclude today with her story because it clearly shows what happens 
when an abortionist like Dr. Haskell is left unrestrained. Here is what 
she said in describing one of the horrifying procedures she witnessed:

       The young woman was 18, unmarried, and a little over 6 
     months pregnant. She cried the entire 3 days she was at the 
     abortion clinic. The doctor told us, ``I'm afraid she's going 
     to want to see the baby. Try to discourage her from it; we 
     don't like them to see the babies.'' We gave her some IV-
     valium to calm her down, but she was never totally knocked 
     out.
       The baby's heartbeat was clearly visible on the ultrasound 
     screen. I stood 3 feet from the doctor as he took the forceps 
     and brought the baby's legs down through the birth canal.
       He delivered the baby's body and arms, everything but his 
     little head. The baby's body was moving. His little fingers 
     were clasping together.
       He was kicking his feet. The baby was hanging there, and 
     the doctor was holding his neck to keep his head from 
     slipping out. The doctor took a pair of scissors and inserted 
     them into the back of the baby's head, and the baby's arms 
     jerked out in a flinch, a startle reaction, like a baby does 
     when he thinks he might fall. Then the doctor opened up the 
     scissors, stuck the high-powered suction tube into the hole 
     and sucked the baby's brains out. The baby went completely 
     limp. Then, the doctor pulled the head out, and threw the 
     baby into a pan.
       When the mother started coming around, she was crying ``I 
     want to see my baby.'' So we cleaned him up and put him into 
     a blanket. We put her in a private room and handed her the 
     baby. She held that baby in her arms and when she looked into 
     his face, she started screaming ``Oh my God, what have I 
     done? This is my baby.''
       At that point, I couldn't take it. In my 14 years of 
     nursing, I had been pretty strong. But this was different. I 
     started choking. I excused myself and ran to the bathroom. It 
     was horrible, and I didn't fully understand my reaction. 
     Then, I had to go back and take that baby away from his 
     mother. She was so hysterical, and all she kept saying was, 
     ``It was a baby; he was so beautiful.''

  Many other beautiful babies are dying the same tragic deaths. Quite 
simply, we as a country, as a people, should not tolerate it. We should 
not tolerate it anymore. We must not allow it to continue. We must not 
pass amendments that would allow it to continue even under a legal ban 
of the partial-birth abortion procedure.
  No matter how well-intentioned the amendment is, it is abundantly 
clear it would allow this partial-birth abortion procedure to continue. 
Therefore, I ask my colleagues to defeat the amendment.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Bunning). The Senator from Illinois.
  Mr. DURBIN. Mr. President, I yield 10 minutes to my colleague, the 
Senator from Louisiana.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized for 
10 minutes.
  Ms. LANDRIEU. Mr. President, I rise to speak to this important issue 
for a few moments and begin by saying that the event the Senator from 
Ohio described is indeed extremely troubling and would be classified as 
horrific by most people. If the Durbin amendment were adopted, that 
would not happen again unless the mother's life, through the 
determination of the physician, was in jeopardy, or her grievous 
physical health.
  I argue with the Senator from Ohio and the Senator from Pennsylvania 
that if they were indeed--and I respect both Senators--serious about 
stopping what Senator DeWine just described, the Durbin amendment has 
the best chance of stopping that from ever happening again than the 
pending bill by the Senator from Pennsylvania.
  That is why I support the Durbin amendment. That is why I am a 
cosponsor of the Durbin amendment. Many of us come to the floor with 
very good intentions, to try to work to help fashion some compromises 
that would end what was just described, but also allowing for the 
Constitution to provide a framework according to Roe v. Wade, which 
does not represent--although it has been characterized inappropriately, 
and not clearly by both sides, because this debate, unfortunately, for 
30 years or more, has been held hostage by the extremes on both sides.
  I want to review, for the purpose of this debate, some writings from 
Roe v. Wade. To my friends on the pro-choice side, let me remind them 
of a paragraph in Roe v. Wade, written by Justice Blackmun:

       Some argue that a women's right is absolute and that she is 
     entitled to terminate her pregnancy at whatever time, in 
     whatever way, and for whatever reasons she alone chooses. 
     With this we do not agree.

  Roe v. Wade does not support that proposition. Let me read, for the 
pro-life community, from this decision, which was delicately crafted to 
address a very complex constitutional provision that was framed 
initially in the Bill of Rights, supported by the Constitution, and 
those principles are the principles of life, liberty, and happiness, 
not just for the fetus, for the unborn, for young children, but life, 
liberty, and happiness for people of all ages and all conditions in 
life, male and female, slave and free.
  For the pro-life community, let me read what the Justices said:

       A State criminal abortion statute of the current Texas 
     type, that excepts from criminality only a lifesaving 
     procedure on behalf of the mother, without regard to 
     pregnancy stage and without recognition of the other 
     interests involved [obviously], is violative of the Due 
     Process Clause of the Fourteenth Amendment.

  I suggest unless there are a majority of Senators willing to change 
the Constitution and remove the 14th amendment, this debate is going 
nowhere. The fact is that the Constitution supports a framework in 
which life and liberty for everyone, including the unborn, have to be 
taken into consideration.
  I argue that the Senator from Illinois puts forth a very good 
amendment on the floor because we want to attempt, as a society, to 
outlaw late-term abortions, which violates our sense of decency and 
morality, within the framework of the Constitution, unless the woman's 
life is at risk or unless the woman is in grave physical health.
  The American people do not agree with the extremes on both sides. The 
fact is, with all due respect to the Senators from Pennsylvania and 
Ohio, this is not an amendment that anybody could put on the floor that 
they would agree to, because they are opposed to abortion in every 
case, under every circumstance. They believe it should be outlawed. 
They are entitled to that position, to represent it, and they are 
entitled to run on it, which they have, and they have gotten elected. 
But I say that the majority of people in the country believe that in 
some situations abortion should be legal and safe, and we are 
attempting to make it more rare. But without the support of either the 
right or the left, the Senator from Illinois puts forth this amendment 
in good faith, and I support him, and so do some Republican Senators.
  The country is very torn. In reading this decision, as I just 
reviewed portions of it, you can understand that the

[[Page 5892]]

Justices themselves thought it was a very delicate compromise that had 
to be put together based on the Constitution and the laws and views of 
the American public.
  According to recent polling, only 33 percent, or less, of the 
population would ban all abortions under all circumstances; 29 percent 
would allow unfettered abortions; and the vast majority of Americans 
fall in the middle, which is understandable.
  Late-term abortions are one of those positions we can actually do 
something about. While people have mixed views about it, this amendment 
would in fact outlaw all late-term abortions, all procedures.
  The Santorum amendment only attempts to outlaw one procedure. I argue 
that once the Court is faced with it, it is not going to uphold it. So 
the end result of this debate is going to be not stopping one late-term 
abortion, when Senator Durbin's amendment would actually accomplish 
that end.
  The Durbin amendment draws a line at a place that--well, it is not 
crystal clear, but I ask you, what could possibly be crystal clear 
about this debate? Is anything crystal clear about it? Even though we 
think we are the smartest 100 people around, I think we can argue that 
we could not even make this debate crystal clear. There is no clarity 
about it. All you can do is do your very best. The Durbin amendment 
attempts to draw the line of viability. I argue that somebody else 
could put up another line. But at least viability has some clarity in 
medical terms. It is understandable, and I think acceptable, to the 
American people.
  Viability is a line that was recognized by the Supreme Court as part 
of the original decision. As medical research gets clearer--not 
perfectly crystal clear, but as it brings forth new information, it is 
something we can use in terms of the measurement.

       The State has still another important and legitimate 
     interest in protecting the potentiality of human life. These 
     interests are separate and distinct. Each grows in 
     substantiality as the woman approaches term and, at a point 
     during pregnancy, each becomes compelling.

  That was also written by the Court.
  The Durbin amendment says that when we reach the point of viability, 
the interest in the potential of human life is compelling; it cannot be 
ended without serious cause. This amendment raises the standards for 
late-term abortions from its current just general health to physical 
health, which is why many on the left cannot support it.
  I think given the urgency of the Court and the Congress to protect 
viable life, perhaps raising the standard is necessary and I hope will 
be upheld by the Court.
  If my colleagues are interested in actually banning late-term 
abortion--which I most certainly support, and the vast majority of 
people in Louisiana support--we should not engage in the politics of 
division but try to reach common ground to do this. I believe the 
Durbin amendment offers us that very opportunity.
  I urge my colleagues to look beyond the rhetoric and to leave the 
fringe and move to the middle. Is this the answer to this whole 
question? No. But is it a step in the right direction to minimize 
abortions in this country? Yes. Is it something that would meet the 
constitutional test? Yes. Is it something that could be perfected over 
time? Yes. It is something that could have a direct impact on building 
the kind of compromise of which I think we could be proud. So I 
strongly urge my colleagues to support the Durbin amendment based on 
all that I have outlined.
  I yield back the remainder of my time.
  Ms. MIKULSKI. Mr. President, I express my strong support for the 
Durbin amendment.
  I support the Durbin amendment because it is consistent with my four 
principles. These are my principles: It respects the constitutional 
underpinnings of Roe v. Wade. It prohibits all post-viability 
abortions, regardless of the procedure used. It provides an exception 
for the life and health of a woman, which is both intellectually 
rigorous and compassionate. And it leaves medical decisions in the 
hands of physicians--not politicians.
  The Durbin alternative addresses this difficult issue with the 
intellectual rigor and seriousness of purpose it deserves. We are not 
being casual. We are not angling for political advantage. We are not 
looking for cover.
  The Durbin amendment offers the Senate a sensible alternative, one 
that would prohibit post-viability abortions while respecting the 
Constitution and protecting women's lives. I believe it is an 
alternative that reflects the views of the American people.
  I support the Durbin amendment because it is a stronger, more 
effective approach to banning late term abortions. The Durbin amendment 
respects the Constitution and the Supreme Court's ruling in Roe v. 
Wade. The Santorum bill before us does not. It is unconstitutional.
  In fact, the Supreme Court ruled in Stenberg v. Carhart just 3 years 
ago that a Nebraska state law that bans certain abortion procedures is 
unconstitutional. The Supreme Court ruled it was unconstitutional for 
two reasons. First, it did not include an exception for a woman's 
health. Second, it does not clearly define the procedure it aims to 
prohibit and would ban other procedures, sometimes used early in 
pregnancy.
  The bill before us, the Santorum bill, is nearly identical to the 
Nebraska law the Supreme Court struck down. The proponents of this 
legislation say they have made changes to the bill to address the 
Supreme Court's ruling. They have not. It still does not include an 
exception to protect the health of the woman. It still does not clearly 
define the procedure it claims to prohibit. Let me be clear about this. 
The Santorum bill is unconstitutional.
  The Santorum bill violates the key principles of Roe v. Wade and 
other Court decisions. When the Court decided Roe, it was faced with 
the task of defining. ``When does life begin?'' Theologians and 
scientists differ on this. People of good will and good conscience 
differ on this.
  So the Supreme Court used viability as its standard. Once a fetus is 
viable it is presumed to have not only a body, but a mind and spirit. 
Therefore it has standing under the law as a person.
  The Roe decision is quite clear. States can prohibit abortion after 
viability so long as they permit exceptions in cases involving the 
woman's life or health. Under Roe, states can prohibit most late term 
abortions. And 41 states have done so.
  In my own state of Maryland, we have a law that does just that. It 
was adopted by the Maryland General Assembly. It prohibits post 
viability abortions. It provides an exception to protect the life or 
health of the woman, as the Constitution requires. It also provides an 
exception if the fetus is affected by a genetic defect or a serious 
abnormality. This law reflects the views of Marylanders. It was 
approved by the people of Maryland by referendum.
  Like the Maryland law, the Durbin alternative is consistent with Roe. 
It is a compassionate, Constitutional approach to prohibiting late term 
abortions.
  It says that after the point of viability no woman should be able to 
abort a viable fetus. The only exception can be when the woman faces a 
threat to her life or serious and debilitating risk to her health as 
required by the Constitution.
  The Durbin amendment is stronger than the Santorum bill. It bans all 
post viability abortions. Unlike the Santorum bill, the Durbin 
amendment doesn't create loopholes by allowing other procedures to be 
used.
  I believe there is no Senator who thinks a woman should abort a 
viable fetus for a frivolous, non-medical reason. It does not matter 
what procedure is used. It is wrong, and we know it. The Durbin 
alternative bans those abortions. It is a real solution.
  On the other hand, Senator Santorum's bill does not stop a single 
abortion. It does not ban all late term abortions. It bans certain 
procedures and diverts doctors to other procedures. This approach is 
both hollow and ineffective. It bans procedures that may be the safest 
for a woman's health. But let me be clear. Under

[[Page 5893]]

Santorum, late term abortions would still be allowed to happen.
  It does not make late term abortions more rare. It makes them more 
dangerous. And for that reason, the Santorum approach is ineffective.
  The Durbin amendment providers a tough and narrow health exception 
that is both intellectually rigorous and compassionate. It will ensure 
that women who confront a grave health crisis late in a pregnancy can 
receive the treatment they need. The Durbin amendment defines such a 
crisis as a ``severely debilitating disease or impairment caused or 
exacerbated by pregnancy'' or ``an inability to provide necessary 
treatment to a life-threatening condition.''
  And we don't leave it up to her doctor alone. We require that a 
second, independent physician also certify that the procedure is the 
most appropriate for the unique circumstances of the woman's life.
  I want to be very clear in this. The Durbin amendment does not create 
a loophole with its health exception. We are not loophole shopping when 
we insist that an exception be made in the case of serious and 
debilitating threats to a woman's physical health. This is what the 
Constitution requires--and the reality of women's lives demands.
  Let's face it. Women do sometimes face profound medical crises during 
pregnancy. Breast cancer, for example, occurs in one in 3,000 
pregnancies. In some unfortunate circumstances, pregnant women in their 
second trimester discover lumps in their breasts and are diagnosed with 
invasive breast cancer. Continuing the pregnancy--and delaying medical 
treatment--would put a woman's health in grave danger.
  The Durbin amendment recognizes that to deny a woman in a situation 
like this access to the abortion that could save her life and physical 
health would be unconscionable. To deny her other children a chance to 
know a healthy mother would be unconscionable.
  When the continuation of the pregnancy is causing profound health 
problems, a woman's doctor must have every tool available to respond. I 
readily acknowledge that the procedure described by my colleagues on 
the other side is a grim one. I do not deny that. But there are times 
when the realities of women's lives and health dictates that this 
medical tool be available.
  I support the Durbin alternative because it leaves medical decisions 
up to doctors, not legislators. It relies on medical judgement, not 
political judgement about what is best for a patient.
  Not only does the Santorum bill not let doctors be doctors, it 
criminalizes them for making the best choice for their patients.
  Under this bill, a doctor could be sent to prison for up to two years 
for doing what he or she thinks is necessary to save a woman's life or 
health. I say that's wrong.
  In fact, those who oppose the Durbin amendment say it is flawed 
precisely because it leaves medical judgements up to physicians. Well, 
who else should decide? Would the other side prefer to have the 
government make medical decisions?
  I disagree with that. I believe we should not substitute a political 
judgment for medical judgement. We need to let doctors be doctors. This 
is my principle whether we are talking about reproductive choice or any 
health care matter.
  Physicians have the training and expertise to make medical decisions. 
They are in the best position to recommend what is necessary or 
appropriate for their patients. Not bureaucrats. Not managed care 
accountants. And certainly not legislators.
  The Durbin amendment provides sound public policy, not a political 
soundbite. It is our best chance to address the concerns many of us 
have about late term abortions.
  Today, we have an opportunity today to do something real. We have an 
opportunity to let logic and common sense win the day. We have an 
opportunity to do something that I know reflects the views of the 
American people. Today, we can pass the Durbin amendment.
  We can say that we value life, and that we value our Constitution. We 
can make clear that a viable fetus should not be aborted. We can say 
that we want to save women's lives and protect women's health.
  The only way to do this, Mr. President, is to vote for the Durbin 
amendment. I urge my colleagues to support it.
  Ms. SNOWE. Mr. President, I thank Senator Durbin for introducing this 
very important measure for the women of this Nation. Today, we continue 
debate on the critical issue of allowing women to choose what is right 
for them, their health and their families.
  In 1973--26 years ago now--the Supreme Court affirmed for the first 
time a woman's right to choose. This landmark decision was carefully 
crafted to be both balanced and responsible while holding the rights of 
women in America paramount in reproductive decisions. It is clear that 
the underlying Santorum bill does not hold the rights of women 
paramount--instead it infringes on those rights in the most grievous of 
circumstances.
  Indeed, S. 3 undermines basic tenets of Roe v. Wade, which maintained 
that women have a constitutional right to an abortion, but after 
viability--the time at which it first becomes realistically possible 
for fetal life to be maintained outside the woman's body--States could 
ban abortions only if they also allowed exceptions for cases in which a 
woman's life or health is endangered. And the Supreme Court reaffirmed 
their support for exceptions for health of the mother just three years 
ago.
  In Stenberg vs. Carhart, a case involving the constitutionality of 
Nebraska's partial birth abortion ban statute, the Supreme Court 
invalidated the Nebraska statute because it lacks an exception for the 
performance of the D & X, dilation and extraction, procedure when 
necessary to protect the health of the mother, and because it imposes 
an undue burden on a woman's ability to have an abortion. This case was 
representative of 21 cases throughtout the Nation. Regrettably, 
however, Senator Santorum's legislation disregards both Supreme Court 
decisions by not providing an exception for the health of the mother 
and providing only a narrowly defined life exception.
  And let there be no mistake--I stand here today to reaffirm that no 
viable fetus should be aborted--by any method--unless it is absolutely 
necessary to protect the life or health of the mother, period.
  Senator Durbin's amendment, which I have cosponsored in the past and 
again this year, specifies that post-viability abortions would only be 
lawful if the physician performing the abortion and an independent 
physician certified in writing that continuation of the pregnancy would 
threaten the mother's life or risk grievous injury to her physical 
health. It mirrors laws already on the books in forty-one states, 
including my home state of Maine, which ban post-viability abortions 
while at the same time including life and health exceptions mandated by 
the Supreme Court under Roe v. Wade.
  Furthermore, this amendment will lower the number of abortions 
because it bans all post-viability abortions. S. 3, in contrast, will 
not prevent a single abortion. Sadly, it will force women to choose 
another, potentially more harmful procedure.
  Is this what we really want? To put women's health and lives at risk? 
And shouldn't these most critical decisions be left to those with 
medical training--not politicians?
  The findings in S. 3 would have you believe that this procedure is 
never necessary to preserve the life or health of the mother and that 
in fact it poses significant health risks to a woman. This is simply 
not true. Let me explain why there must be a health exception for 
``grievous physical injury'' in two circumstances:
  First, the language applies in those heart-wrenching cases where a 
wanted pregnancy seriously threatens the health of the mother. The 
language would allow a doctor in these tragic cases to perform an 
abortion because he or she believes it is critical to preserving the 
health of a woman facing: Peripartal cardiomyopathy, a form of

[[Page 5894]]

cardiac failure which is often caused by the pregnancy, which can 
result in death or untreatable heart disease; pre-eclampsia, or high 
blood pressure which is caused by a pregnancy, which can result in 
kidney failure, stroke or death; and uterine ruptures which could 
result in infertility.
  Second, the language also applies when a woman has a life-threatening 
condition which requires life-saving treatment. It applies to those 
tragic cases, for example,when a woman needs chemotherapy when 
pregnant, so the families face the terrible choice of continuing the 
pregnancy or providing life-saving treatment. These conditions include: 
Breast cancer; lymphoma, which has a fifty percent mortality rate if 
untreated; and primary pulmonary hypertension, which has a 50 percent 
maternal mortality rate.
  Now, I ask my colleagues, who could seriously object under these 
circumstances?
  Mr. President, I believe this is a common sense approach to a serious 
problem for American women and a contentious issue for the United 
States Congress. I am grateful to my colleague, Senator Durbin, for 
championing this approach and I urge my colleagues--pro-life and pro-
choice--to join together to support this amendment to ban all abortions 
after viability. Let's reduce the number of abortions in this country 
at the same time we protect the lives and health of women.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SANTORUM. Mr. President, I want to review what the Senator from 
Louisiana said with respect to abortion. I think the Senator from 
Louisiana expressed her view as to what Roe v. Wade means. I sincerely 
believe that she feels that way. She would like the law to be that way, 
and I think most Americans would like the law to be more toward her 
direction than where it really is.
  The law is pretty clear--Roe v. Wade and the companion cases--that in 
fact the right to an abortion is, in America today, at any time for any 
reason.
  That is what happens. You can cite the case in Roe that talks about 
the issue of viability, but there was the Doe v. Bolton case that was 
decided with it; it was read together.
  In Doe v. Bolton, the Court ruled abortion could be performed after 
fetal viability if the operative physician judged the procedure 
necessary to protect the life or health of the woman. That is where we 
come down, health of the woman. Under Doe v. Bolton, the health of the 
woman is anything--is anything. The Senator from Ohio just read this, 
and I will read it again:

       Medical judgments may be exercised in light of all 
     factors--physical, emotional, psychological, familial, the 
     woman's age--relevant to the well-being of the patient. All 
     these factors may relate to health, and this allows the 
     attending physician the room he needs to make his best 
     medical judgment.

  There is simply no restriction there. There is no limitation there, 
and there are people on the Court today who have interpreted that 
decision consistently with that no limitation. In fact, I would argue 
the Court is going even further in that direction. There is some scary 
language--this is the Carhart case--there is some downright scary 
language in this decision. I just wish the public understood how 
absolute this right is, how unfettered this right is, and how 
absolutely resistant the pro-abortion side is at keeping that pure 
right in place--unrestricted, unfettered right in place. But we are 
going even further than that.
  We have a case here where we have two Justices of the U.S. Supreme 
Court, Justice Stevens and Justice Ginsburg, in a concurring opinion--
thank God it is not the majority opinion--but in a concurring opinion 
in the U.S. Supreme Court, this is what Justice Stevens says, and this 
is what the Senator from Louisiana was saying:

       The liberty clause--

  Oh, how words can be twisted.

       The liberty clause in the fourteenth amendment includes a 
     woman's right to make this difficult and extremely personal 
     decision, makes it impossible for me to understand how a 
     State has any legitimate interest in requiring a doctor to 
     follow any procedure other than the one he or she reasonably 
     believes will best protect the woman in her exercise of this 
     constitutional liberty.

  Do you know what this means? This means he can do anything he wants, 
any procedure, none of them reviewable. That is why we had to pass a 
bill last year called the Born Alive Infant Protection Act. Why? 
Because Justice Stevens, one of the nine imperial Judges on the U.S. 
Supreme Court, unelected, had decided that if a doctor wants to deliver 
a live baby and then kill it, that is a procedure. Do you know what. 
Justice Stevens said that if that is what the doctor believes, fine. 
That is how far we are going. That is the corruption of this entire 
issue of abortion. It is just so corrosive that it takes people who see 
words such as ``liberty'' and turns them into murder. Liberty means now 
murder, in the eyes of Justice Stevens and Justice Ginsburg. Oh, this 
is such a caustic issue that just corrodes the essence of the spirit of 
America.
  Senator Durbin--I have said it repeatedly--I believe in good faith is 
trying to put some restriction in place to what has gone off. By the 
way, Justice Stevens, unfortunately, and Justice Ginsburg are not 
alone. You have Peter Singer, whom the New Yorker magazine calls ``the 
most influential living philosopher''--the most influential living 
philosopher. As you will hear these statements, you may wonder, no, 
this is just some kook. No, Professor Peter Singer, distinguished 
chair, where? Princeton University. Peter Singer has argued that when 
the death of--what he argues--I will not quote him. I will submit this 
for the Record so there will be plenty of quotes in here because I do 
not have much time.
  What he argues is that a child once born should be allowed to be 
euthanized up until--he has updated his opinions here. He believed it 
was only waiting 28 days after birth before deciding whether the baby 
has rights, but now he has said that is an arbitrary figure and it 
should be--``Oh, I think it should be somewhat short of 1 year but the 
point is not for me or anyone else to say, it should be up to the 
parents and, of course, the doctor.''
  You say this is crazy, allowing a parent or society, in the case 
where the parent is not there, to euthanize a child; that is crazy. I 
can guarantee, go back 50 years and maybe there were debates on this 
floor that thought abortion would be a crazy thing and that could not 
happen in our society; we could not have 1.3 million abortions.
  I heard the Senator from California, and I hear this over and over: 
We want abortion to be safe, legal, and rare. Twenty-five percent of 
all pregnancies in this country end in abortion. By anybody's 
estimation, is that rare? Twenty-five percent, is that rare? Forty-
seven percent of abortions in this country are a woman's second 
abortion or more. Is that rare? Is there something corrupting our 
society here?
  I understand the Senator from Illinois is trying to get at least some 
piece of it, but he fails. He fails. He fails on four counts, and let 
me quickly go through them, and more actually, the Senator from Ohio 
listed a few more.
  Four major counts: No. 1, there is a substitute. It eliminates the 
ban on partial-birth abortion. Most partial-birth abortions are done in 
the 20- to 26-week area where there is a question of viability. You 
have--and I entered those in the Record--you have up to 75 percent 
viability at the time of 26 weeks. But, again, it is a substitute that 
eliminates all previous viability abortions. No. 1.
  No. 2, it does not define viability, and it leaves it up to the 
doctor to determine what is viable. If the doctor says this child is 
not viable, there is no review, and as soon as you say it is not 
viable, the statute does not apply. So all you have to do, if you want 
to have an abortion, is say it is not viable; nobody has to review it 
and the statute is not operable.
  No. 3, risk of grievous injury to the physical health of the mother. 
Again, it uses the term ``risk.'' It does not say how much risk. It can 
mean any amount of risk--one-half of 1 percent risk.
  We have Dr. Warren Hern, who wrote the textbook on third-trimester 
abortions, the leading expert in this country, saying:


[[Page 5895]]

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

  He also has a quote that says he would certify that every pregnancy 
has a risk of grievous physical injury to a mother--every pregnancy. 
What if he makes that statement and it is not true? What happens? The 
Senator from Illinois had criminal penalties potentially for perjury. 
Those are now removed from the bill. There is no criminal problem with 
that physician or the other physician who has come in to look at this 
from having any criminal sanctions.
  What are the sanctions? He could lose his license. Not really. The 
State has to promulgate regulations under this statute to suspend or 
revoke a license. It does not say they have to revoke it or say how 
long the suspension is. It could be 1 day. I suspect in States such as 
New York, Connecticut, and Massachusetts, where abortions are 
overwhelmingly supported, you could have 2 hours of revocation, or 
something like that. It would be a ridiculous standard.
  The bottom line is it mandates no revocation or suspension of license 
of any weight, and even at that, it is revocation or suspension or a 
fine up to $100,000 in the first case, $250,000 in the second, but it 
could be a dollar.
  Again, there is no floor in the amount of money. So there really is 
the potential for no consequences in a lot of States, or maybe even in 
most States. It is a substitute. If one is against partial birth, they 
cannot be for this amendment. If it is understood that viability kicks 
one out of this statute to begin with, and it is only the decision of 
the doctor that determines viability and there is no review of that, 
that makes this statute basically inoperable, I would argue, for every 
abortion that is done in America.
  Then if one gets in, there is the risk question, which again 
nullifies, really, any weight on the physician because risk can mean 
such a small amount of risk to make it almost inconsequential. Finally, 
there is no penalty if all that does apply.
  So I suggest that while I believe the Senator from Illinois was 
trying to do something to attack what I described as an unfettered 
right to an abortion is the preeminent right in America--
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SANTORUM. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. I ask unanimous consent that Senator Lincoln be added as 
a cosponsor to my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I yield 30 seconds to the Senator from California.
  Mrs. BOXER. First, anyone who reads Roe v. Wade knows it is not an 
unfettered right. Clearly, at the later stages, Government can in fact 
restrict abortion. Secondly, the kind of talk we just heard on the 
Senate floor, where two Supreme Court Justices were essentially called 
murderers--if one reads back the words, it is essentially calling them 
murderers--I think is beyond inflammatory. I think it is dangerous 
rhetoric. It is wrong, and I am very sad that the debate has 
deteriorated to this point.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. How much time do I have remaining?
  The PRESIDING OFFICER. Six minutes 45 seconds.
  Mr. DURBIN. Mr. President, if one takes a walk through this Capitol 
building, a few feet from where we are standing is the old Senate 
Chamber. If one reads the history of the Senate, they will find that in 
the 19th century, in the 1800s, that Chamber was divided over the issue 
of slavery to the point where one Senator was almost beaten to death on 
the floor of the Senate.
  It is hard to think of issues in America that divide us the way 
slavery divided us then and the issue of abortion divides us today. 
There is such strong emotional, honest, and heartfelt feeling that 
comes into this issue on both sides.
  I greatly respect the Senator from Pennsylvania, even though I may 
disagree with him on this issue. I believe he is speaking from the 
heart. I equally respect the Senator from California, who is on the 
opposite side of the issue. I have known her for 20 years. I know she 
speaks from the heart.
  So many of us come to this issue understanding that if we walked into 
a town meeting in my home State of Illinois and brought up the issue of 
abortion, we would see people folding their arms and would know what 
they are thinking. Some of them are thinking: I do not like it; I do 
not want you to talk about it; I do not know why it is legal in this 
country, and we are a worse nation for having it. With their arms 
folded, you just know what they are thinking.
  Then we will see another group with their arms folded and we will 
know what they are thinking: I do not think the Government ought to 
stick its nose in a woman's business when her health and her life are 
at stake. She, her doctor, her family, and her God ought to make that 
decision, not some politician. That is what we are going to get in most 
town meetings in most townhalls across America. But there is a group of 
people in the middle who are sitting there saying: I see both sides. I 
do not like the fact there are so many abortions in America. I do not 
like the fact you have circumstances where people need an abortion. We 
ought to find some way to work this out reasonably.
  That is what the Supreme Court tried to do in the Roe v. Wade 
decision. They said: We are not going to allow abortions any time, 
anyplace, under all circumstances. We are going to kind of limit when a 
woman can have it, and under what circumstances.
  Then the national debate started, and it has not ended. I do not know 
if it ever will. So I come today understanding that division in 
America, that division in my State, even that division of opinion 
within my own family. I understand this, I feel it, and I am trying 
with this amendment to strike a reasonable compromise.
  Oh, the people with their arms folded on both sides of the hall will 
not like it. It does not ban abortion, which is what some people want. 
And it does not get the Government out of the picture completely, which 
is what others want. Instead, it tries to draw a reasonable, sensible 
line, a good-faith line, of where we will allow abortions in late-term 
pregnancies.
  When we look at the sponsors of this amendment, unlike any other 
amendment on this subject, we will find we have the spectrum of opinion 
on abortion. Watch the rollcall vote. We are going to see Senators come 
forward who are pro-life and pro-choice who will support the Durbin 
amendment, and that says something, that when they have thought about 
it, maybe this is a reasonable middle ground.
  I hope a majority of my colleagues will believe that it is. It says: 
Late in the pregnancy, after the fetus within the mother is viable and 
could survive, we are not going to allow you to terminate that 
pregnancy except under the most extreme situations.
  The Senator from Pennsylvania says: What is viability? How do we know 
the fetus is viable? I cannot answer that question. No legislator can 
answer that question. The Supreme Court, in the case of Planned 
Parenthood of Central Missouri v. Danforth, said the determination of 
whether a particular fetus is viable is and must be a matter for the 
judgment of the responsible attending physician. They went on to say 
the time of viability is different in every pregnancy.
  So I am using a standard the Supreme Court uses. The doctor has to 
decide: Have you reached a point where that fetus is more likely than 
not to survive outside the womb? If the answer is yes, then a woman 
knows she is very late in a pregnancy. Then, and only then, do two hard 
questions have to be asked before a pregnancy can be terminated. One, 
if that pregnancy is continued, will the mother die? If the answer is 
yes, certified not by one doctor but by two doctors, one being an 
independent doctor, that she is going to lose her life if she continues 
the pregnancy, then a consideration can be given to terminating the 
pregnancy, or one other possibility: If two doctors come forward, one 
independent as well as the one treating, and they conclude

[[Page 5896]]

if the mother continues this pregnancy, at this point she runs the risk 
of suffering grievous physical injury. Those are the only two 
conditions, and that is it. Not if a woman feels like she wants to end 
the pregnancy. I cannot imagine a woman in that stage of her pregnancy 
even considering that possibility.
  It goes beyond that. It goes to tangible, physical medical evidence, 
backed up by real doctors who are willing to certify. And this second 
doctor who has been written off by the critics of this amendment as 
just another ``abortionist,'' that is not what it says at all. The 
second doctor's opinion has to be 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. If one does not have that 
second doctor agreeing with the first doctor, the pregnancy cannot be 
terminated.
  What is the risk for the doctor if they falsify it, if they lie about 
it, if they say, oh, we want to make a dollar here, so we are just 
going to put the certification down? If they lie about it, they run the 
risk of having their medical licenses suspended, on the second occasion 
revoked, facing fines up to $250,000. Is that a light penalty, that a 
doctor would lose his license for a lifetime? That is a pretty serious 
penalty. Would not any doctor think twice before conspiring to go ahead 
and certify it when, in fact, there is not medical evidence?
  The Senator from Pennsylvania says we want abortions to be rare, but 
we do not do anything about it. The Durbin amendment will restrict more 
abortions and abortion procedures than the Santorum bill, S. 3.
  Mr. Santorum's bill addresses one procedure, the partial-birth 
procedure, throughout a woman's pregnancy. My amendment addresses all 
late-term abortions, whatever the procedure.
  Finally, when it comes to risk, he takes exception to the fact that I 
use the words ``risk of grievous physical injury.''
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. DURBIN. I thank the Chair.
  Mr. President, before the vote begins, I ask unanimous consent that 
Senator Dodd be added as a cosponsor of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. All time has expired.
  Mr. SANTORUM. I move to table the Durbin amendment and ask for the 
yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion. The clerk will call the 
roll.
  The bill clerk called the roll.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden) 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 ``no.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 60, nays 38, as follows:

                      [Rollcall Vote No. 46 Leg.]

                                YEAS--60

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Cantwell
     Chambliss
     Clinton
     Cochran
     Coleman
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Dayton
     DeWine
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hollings
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Murray
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Schumer
     Sessions
     Shelby
     Smith
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--38

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Byrd
     Carper
     Chafee
     Collins
     Daschle
     Dodd
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Inouye
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Snowe
     Specter
     Stabenow
     Wyden

                             NOT VOTING--2

     Biden
     Kerry
       
  The motion to lay on the table was agreed to.


                            Motion to Commit

  The PRESIDING OFFICER. The question now occurs on the Boxer 
amendment. There are 2 minutes equally divided for each side.
  Who yields time?
  The Senator from California.
  Mrs. BOXER. Mr. President, regardless of the vote on final passage of 
this bill, I think you ought to think about why it is important to 
commit this bill to the Judiciary Committee. Since we last debated this 
bill, the Supreme Court has ruled that an identical bill is 
unconstitutional based on two principles that I have here behind me.
  Mr. KENNEDY. Mr. President, may we have order. The Senator is 
entitled to be heard. This is an important matter.
  The PRESIDING OFFICER. The Senator will suspend.
  May we have order. Please take your conversations off the floor.
  The Senator from California.
  Mrs. BOXER. Mr. President, since we last debated this bill, the 
Supreme Court has ruled an identical bill unconstitutional based on two 
principles: No. 1, there was a health exception; and this bill has 
none; and, No. 2, because of an undue burden on women because the 
procedure ban is so vaguely defined that it banned more than one 
procedure.
  It has those same flaws and should be examined by the committee of 
jurisdiction.
  The ranking member of the committee, Senator Leahy, agrees. In his 
statement, Senator Leahy said: ``Senators deserve the benefit of full 
consideration''----
  The PRESIDING OFFICER. The Senator has used 1 minute.
  Mrs. BOXER. I will take another 30 seconds.
  --``of full consideration and vigorous debate before they are asked 
to cast a vote on such a significant and complicated issue.''
  We are talking about--and I will show a picture of one of them--women 
such as Coreen Costello, a religious, self-described pro-life 
conservative woman who had no other option but this procedure if she 
wanted to preserve her health and have more children.
  The PRESIDING OFFICER. The Senator has 30 seconds.
  Mrs. BOXER. I retain those 30 seconds.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, we have debated this issue on the floor 
of the Senate for the fifth time. The issue is the same. There is a 
slight variation in the language of this bill--some 20 words. I think 
the Senate is perfectly capable of dealing with these changes and to 
address the issue of vagueness. I don't believe that after two hearings 
of the Judiciary Committee, after having gone through the committee on 
a couple of occasions and being debated here now for the fifth time, we 
need to commit this bill back to committee.
  It has been asserted on the floor by the Senator from South Dakota 
that we are bypassing the committee, as was complained about in the 
past. I would just say that we are bypassing the committee on a bill 
that is this size with 20 different words--not this, which is the 
energy bill that bypassed the committee last year or the agriculture 
bill that bypassed the committee last year or on the prescription drug 
bill.
  This has 18 titles in it.
  I think there is a fundamental difference between asserting bypassing 
a committee with a bill which has been on the floor on five different 
occasions and one that is a brandnew piece of legislation with 18 
titles and some 400 or 500 pages.
  The Senate is ready to vote. The issue is well known. I hope we 
defeat the motion to commit and proceed to finish the bill in a timely 
manner.

[[Page 5897]]

  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, women such as the one shown in this 
picture deserve to have another hearing. These are the things that 
could go wrong if a woman is denied this procedure without a health 
exception: They could hemorrhage; they could have a uterine rupture, 
blood clots, an embolism, a stroke, have damage to nearby organs, or 
have paralysis.
  We have not had a hearing on this bill since 1997, my friends. We 
have since had a Supreme Court decision that faults the bill because it 
does not have a health exception. At least vote with us, please, to 
commit this to the Judiciary Committee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, the facts are as evidenced from the 
Judiciary Committee hearings, which basically have not changed. The 
facts are the same. The procedure that we are attempting to ban is 
riskier and has a greater likelihood of causing all those things than 
the alternative procedures which are taught in medical schools, done in 
hospitals, by obstetricians. This is not done in hospitals, not done by 
obstetricians, not taught in medical schools.
  This is a rogue procedure that was designed for one reason. The 
abortionist who designed it said why. It was designed so he could do 
late-term abortions in 15 minutes as opposed to 45 minutes, so he could 
do more in one day; that is, all of these health risks are, in fact, 
bogus. It is a riskier procedure.
  The PRESIDING OFFICER. The Senator's time has expired.
  The question is on agreeing to the motion.
  Mr. REID. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden) 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. Graham of South Carolina). Are there any 
other Senators in the Chamber desiring to vote?
  The result was announced--yeas 42, nays 56, as follows:

                      [Rollcall Vote No. 47 Leg.]

                                YEAS--42

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

                                NAYS--56

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

                             NOT VOTING--2

     Biden
     Kerry
       
  The motion was rejected.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. BUNNING. Mr. President, I rise in support of S. 3, the Partial-
Birth Abortion Ban Act. It is totally unbelievable to me that Congress 
yet again is working on legislation to make partial-birth abortions 
illegal.
  This is the fourth Congress in which the Senate will have considered 
this issue. In that time, innocent babies have been killed by this 
cruel and horrible practice. It is time to finally end it once and for 
all.
  The Senate voted to ban partial-birth abortions in the 104th 
Congress, the 105th Congress, and the 106th Congress. The first two 
attempts to ban this gruesome act were sent to the White House and 
vetoed by President Bill Clinton.
  In the last Congress, the House passed a partial-birth abortion ban. 
However, the Senate leadership refused to bring the issue up for 
consideration. I commend our leader, Senator Frist, for moving quickly 
to address this issue early in the 108th Congress, and I commend 
Senator Santorum for his lead in this effort. I am confident that the 
President at the other end of Pennsylvania Avenue will act in defense 
of life by signing this proposal into law.
  All forms of abortion are gruesome procedures, but I cannot imagine 
anything more hideous than partial-birth abortion. I will spare my 
colleagues a detailed description of this heinous procedure since it is 
so repulsive. We have already seen graphic pictures and illustrations 
outlining this infanticide. It is really hard to believe we have to go 
through this exercise every Congress because nobody, with a straight 
face and a clear conscience, can stand up and defend this procedure.
  The only way anyone can justify it is to say, hey, it doesn't matter 
because not that many partial-birth abortions are actually performed or 
they can try to cloud the issue by saying partial-birth abortions are 
only utilized in cases where the mother's life is in jeopardy. We know 
this just is not true. We know that some of the most ardent and visible 
defenders of abortion have actually lied about the numbers. It is not 
just a few hundred a year--it is in the thousands.
  But the numbers really should not make any difference. If it is wrong 
and inhumane, we should ban it, whether it affects 1 or 1 million. But 
misleading facts about the numbers--trying to play down the prevalence 
and frequency of this procedure--are no justification for allowing this 
practice to continue.
  This bill does not ignore the health needs of women. It clearly makes 
an exception when the life of the mother is in jeopardy. The plain 
language of this legislation clearly says that the ban on partial-birth 
abortions does not apply when such a procedure is considered necessary 
to save the life of a mother whose life is endangered by a physical 
disorder, illness, or injury. So even though many medical experts 
insist that there is never any medical justification for a partial-
birth abortion, this bill goes the extra mile and permits it if the 
mother's life is in jeopardy.
  Personally, I don't think this makes much sense, but it just goes to 
show that those of us who support the bill are doing what we can to try 
to find a middle ground and to answer concerns that some of our 
colleagues still have.
  No one can deny that partial-birth abortion is cruel. No one can deny 
that it is patently inhumane. No one can deny that it is gruesome and 
grotesque. In fact, in the 8 years we have been debating this bill, no 
one has really come up with a defense of partial-birth abortions that 
holds any water.
  Therefore, I urge my colleagues to support this bill, support this 
ban; it is simply a matter of respect for human life.
  I yield the floor.
  The PRESIDING OFFICER. Who seeks recognition?
  The Senator from Nevada is recognized.
  Mr. REID. Mr. President, I yield to my friend from Pennsylvania.


                           Order of Procedure

  Mr. SANTORUM. Mr. President, I ask unanimous consent that following 
the disposition of the Boxer motion to commit, Senator Harkin be 
recognized to offer an amendment, the text of which is at the desk, 
provided that there be 2 hours 30 minutes for debate,

[[Page 5898]]

equally divided in the usual form, prior to a vote in relation to the 
amendment, with no second-degree amendments in order prior to the vote.
  I further ask that following the disposition of the Harkin amendment, 
Senator Feinstein be recognized in order to offer an amendment, the 
text of which is at the desk, provided that there be 2 hours for 
debate, equally divided, in the usual form prior to a vote in relation 
to the amendment, with no second-degree amendments in order prior to 
the vote.
  I further ask consent that following the disposition of the Feinstein 
amendment, the bill be read the third time, with no intervening action 
or debate. I finally ask consent that at 9:30 a.m. on Thursday, 
provided that the bill has been read a third time, the Senate proceed 
to a vote on passage of the bill, again with no intervening action or 
debate; provided further that any second-degree amendments to the 
aforementioned amendments be relevant to the first degree.
  I further ask unanimous consent that following that vote, the Senate 
proceed to executive session and vote on the confirmation of Calendar 
No. 53, Thomas Varlan, to be U.S. District Judge for the Eastern 
District, with no intervening action; further, that following that 
vote, the President be immediately notified of the Senate's action, and 
the Senate proceed to a period for morning business until 11:30 a.m., 
with the time equally divided in the usual form.
  Finally, I ask unanimous consent that at 11:30 a.m., the Senate 
resume consideration of the Estrada nomination in executive session and 
the time until 12:30 p.m. be equally divided in the usual form, with a 
vote on the motion to invoke cloture occurring at 3:30 p.m.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. As I understand it, we will have the Harkin amendment and 
the Feinstein amendment and final passage.
  Mr. SANTORUM. The Harkin and Feinstein amendments will be voted on 
this afternoon or this evening potentially, and tomorrow morning a vote 
on final passage as the first order of business when we reconvene.
  Mr. REID. Mr. President, I say to my friend, at the end of the first 
paragraph of the consent request, after the words ``further that''--it 
is the first long paragraph.
  Mr. SANTORUM. Yes, ``further that.''
  Mr. REID. I ask that the words ``if the above amendments are not 
tabled, if a tabling motion is made, any second-degree amendments'' be 
inserted and then it would be just as the Senator said it, ``and that 
they be debatable.''
  Mr. SANTORUM. We can accept that.
  Mr. REID. So I accept that, other than this, Mr. President: The 
junior Senator from Iowa, the author of this amendment, would like an 
up-or-down vote on his amendment. I was just informed of that.
  Mr. SANTORUM. I am fine with giving him an up-or-down vote.
  Mr. REID. Mr. President, I know the Senator from Pennsylvania does 
not like this, but we have given and taken, for lack of a better 
description, trying to work our way through this. I very much 
appreciate his allowing us to go forward. I ask that the consent 
request be agreed to.
  The PRESIDING OFFICER. Is there objection to the modification? 
Without objection, it is so ordered.
  Mr. SANTORUM. I thank the Senator from Nevada. The Senator hit the 
nail on the head, the head on the nail, whatever the case may be. The 
fact is, the Senator from Nevada has been very cooperative. This is not 
an extraordinary request. Even though I rather would have a motion to 
table, I am glad to accommodate the Senator. I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.


                           Amendment No. 260

(Purpose: To express the sense of the Senate concerning the decision of 
                   the Supreme Court in Roe v. Wade)

  Mr. HARKIN. Mr. President, I have an amendment at the desk, and I ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Iowa [Mr. Harkin] proposes an amendment 
     numbered 260.
       At the appropriate place, insert the following:

     SEC. __. SENSE OF THE SENATE CONCERNING ROE V. WADE.

       (a) Findings.--The Senate finds that--
       (1) abortion has been a legal and constitutionally 
     protected medical procedure throughout the United States 
     since the Supreme Court decision in Roe v. Wade (410 U.S. 113 
     (1973)); and
       (2) the 1973 Supreme Court decision in Roe v. Wade 
     established constitutionally based limits on the power of 
     States to restrict the right of a woman to choose to 
     terminate a pregnancy.
       (b) Sense of the Senate.--It is the sense of the Senate 
     that--
       (1) the decision of the Supreme Court in Roe v. Wade (410 
     U.S. 113 (1973)) was appropriate and secures an important 
     constitutional right; and
       (2) such decision should not be overturned.

  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, the amendment I have offered basically 
expresses the sense of the Senate in support of the Supreme Court 
decision in Roe v. Wade. With all of the legislation that continues to 
come up and chip away at Roe v. Wade, I decided it was important for us 
in the Senate to go on record that this historic decision was 
appropriate and should not be overturned.
  I let the clerk read the full text of the amendment because it is 
very short and to the point. I offered this amendment 4 years ago on 
similar legislation that came before this body. The disposition of that 
amendment at that time, if I am not mistaken, was 51 to 47 in passage. 
There were some who were concerned about a couple of the findings. The 
difference between this amendment and the one I offered 4 years ago is 
basically two findings have been removed and the only findings left are 
just the findings that pertain only to Roe v. Wade.
  This amendment is very simple, very straightforward. Basically, it 
puts us on record of saying the decision in Roe v. Wade on January 22, 
1973, was appropriate and should not be overturned. I believe it is 
important that we remind ourselves about this decision as we get into 
the debate on this so-called partial-birth abortion--especially when 
this bill changes. That is different than what it was 4 years ago, as 
we try to parse words, trying to anticipate every medical procedure 
that might be performed by a doctor, getting into issues this Senator 
does not believe we are adequately prepared or equipped to do in terms 
of knowledge of all of the ramifications of certain medical procedures.
  I want to make sure with all of this going on that we send a strong 
signal to the women of this country that Roe v. Wade is appropriate, it 
was a good decision, and it is not going to be overturned.
  I assume maybe there are those in this body who want to see it 
overturned. I can accept that as their opinion and their view, but I 
think it is important for people to know where we stand on that 
decision.
  As we all know, the U.S. Supreme Court announced its decision in Roe 
v. Wade as a challenge to a Texas statute that made it a crime to 
perform an abortion unless the woman's life was at stake. The case had 
been filed by Jane Roe, an unmarried woman, who wanted to safely and 
legally end her pregnancy.
  Siding with Roe, the Court struck down the Texas law. In its ruling, 
the Court recognized for the first time that the constitutional right 
to privacy ``is broad enough to encompass a woman's decision whether or 
not to terminate her pregnancy.'' But the decision also set some rules.
  The Court recognized that the right to privacy is not absolute, and 
that any State has a valid interest in safeguarding maternal health, 
maintaining medical standards, and protecting potential life. A State's 
interest in ``potential life'' is not compelling, the

[[Page 5899]]

Court said, until viability, the point in pregnancy in which there is a 
reasonable possibility for the sustained survival of the fetus outside 
the womb.
  A State may, but is not required, to prohibit abortion after 
viability, except when it is necessary to protect a woman's life or her 
health. I add that for emphasis, ``or her health.''
  This is what my resolution is all about: To say that we agree that 
Roe v. Wade was an appropriate decision and it should not be 
overturned.
  The constitutional right to a private decision in this matter is no 
more negotiable than the freedom to speak or the freedom to worship.
  Before the 1973 landmark ruling of Roe v. Wade, it is estimated that 
each year 1.2 million women resorted to illegal abortion, despite the 
known hazards of frightening trips to dangerous locations in strange 
parts of town; of whiskey as an anesthetic; of ``doctors'' who were 
often marginal or unlicensed practitioners, sometimes alcoholic, 
sometimes sexually abusive; unsanitary conditions; incompetent 
treatment; hemorrhage; disfiguration and death.
  By invalidating laws that forced women to resort to back-alley 
abortion; Roe was directly responsible for saving women's lives.
  Only 10 pieces of legislation were introduced in either the House or 
Senate before the Roe decision. But in the 30 years since the ruling, 
more than 1,000 separate legislative proposals have been introduced. 
The majority of these bills sought to restrict a womans right to 
choose.
  Unfortunately, what is often lost in the rhetoric and in some of 
those proposals--is the real significance of the Roe decision.
  The Roe decision recognized the right of women to make their own 
decisions about their reproductive health. The decision whether to bear 
a child is profoundly private and life-altering. As the Roe Court 
understood, without the right to make autonomous decisions about 
pregnancy, a woman could not participate freely and equally in society.
  Roe not only established a woman's reproductive freedom, it was also 
central to women's continued progress toward full and equal 
participation in American life. In the 26 years since Roe, the variety 
and level of women's achievements have reached a higher level. As the 
Supreme Court observed in 1992:

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

  As I have said on many occasions in the past, going back almost 20 
years, I do not believe that any abortion is desirable. I do not think 
anyone does. As a father, I have struggled with this issue many times 
in the past. However, I do not believe that it is appropriate to insist 
that my personal views be the law of the land, just as I do not think 
the personal views of the Senator from Pennsylvania, however strong he 
may hold them, ought to be the law of the land.
  So what should Congress do?
  If we are truly interested in both maintaining a woman's 
constitutional right to control her own reproductive life, and at the 
same time trying to limit the number of abortions in our society, there 
is action we can take. We can increase funding for family planning. Try 
getting that through on the floor of the Senate. We can increase 
funding for abstinence-only education. We have done some of that. We 
can mandate insurance coverage for contraception. We still need to do 
that. We do not, but we should mandate it.
  We can provide more support for contraception research. 
Unfortunately, the Senate yesterday decided not to take these steps 
that could reduce the number of abortions. That was the amendment 
offered by my colleague from Washington, Senator Murray.
  I strongly urge my colleagues to support this resolution. I believe 
it would establish the one important principle that we should agree 
on--that we will not strip away a woman's fundamental right to choose, 
and that is what this amendment does.
  Further, I quote from Justices O'Connor, Kennedy, and Souter in 
Casey:

       At the heart of liberty is the right to define one's own 
     concept of existence, of meaning of the universe and of the 
     mystery of human life. Beliefs about these matters could not 
     define the attributes of personhood were they formed under 
     compulsion of the State.

  I am going to read that again because it is such a profound 
statement:

       At the heart of liberty is the right to define one's own 
     concept of existence, of meaning of the universe and of the 
     mystery of human life. Beliefs about these matters could not 
     define the attributes of personhood were they formed under 
     the compulsion of the State.

  I think that is the essence of this issue, whether we will use the 
heavy hand of the State to enforce certain individuals' concepts of 
when life begins, how life begins, when a person can have an abortion, 
when a person cannot.
  Yes, it is true, people are divided on this issue. Some people are 
uncertain about it. I quarrel with myself all the time about it, 
because it is as multifaceted as there are numbers of humans on the 
face of the Earth.
  I would not sit in judgment on any person who would choose to have an 
abortion, especially a woman who went through the terrifying, 
agonizing, and soul-wrenching procedures of having a late-term abortion 
because her health or her life is in danger. That must be one of the 
most soul-wrenching experiences a person can go through. I just do not 
understand how we can be so presumptuous to think that we in the Senate 
can answer each one of those individual cases, with all the different 
facets that may be involved, and yet that is what some in the Senate 
believe the Senate and the Congress should do.
  No, I do not want to sit in judgment on that, and I do not believe 
any of us ought to.
  That is why, again, I think it is particularly important that we cut 
through all the folderol that surrounds this issue and get to the heart 
of it, which is Roe v. Wade. This is the heart of what we are talking 
about.
  There are those who want to come along and change it and make it more 
complex, indecipherable, benefiting maybe one person one way, adding to 
the detriment of another person another way, so that we are right back 
where we were before Roe v. Wade was decided.
  I believe very strongly that we need to express ourselves on this 
sense of the Senate resolution. I appreciate the agreement from the 
manager of the bill and our majority whip to have an up-or-down 
rollcall vote. I believe it is that important, and I appreciate their 
willingness to have that up-or-down vote.
  I am sure I will have more to say later on. I believe there are 2\1/
2\ hours of time divided equally, if I am not mistaken.
  The PRESIDING OFFICER. Two hours and 20 minutes.
  Mr. HARKIN. How much time have I consumed?
  The PRESIDING OFFICER. The Senator has 61 minutes and 3 seconds.
  Mr. HARKIN. I thank the Presiding Officer, and I yield the floor.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I rise in opposition to this amendment. 
Before I make a statement, I encourage Members who have statements on 
this amendment or on the bill--we have roughly 2 hours of time 
remaining to debate this amendment, but obviously I encourage anybody 
who has statements on the bill itself to come down. Senator Kennedy is 
in the Chamber, Senator Harkin and myself. So there is ample 
opportunity and time. There is not much of a wait.
  Does the Senator from Massachusetts wish to proceed?
  Mr. KENNEDY. Mr. President, I will be ready in about 2 minutes, and I 
would like to have 10 minutes.
  Mr. HARKIN. I yield whatever time the Senator desires.
  Mr. KENNEDY. I appreciate that.
  Mr. SANTORUM. The Senator from Massachusetts needs a couple of 
minutes before he is ready. Therefore, I yield 2 or 3 minutes to the 
Senator from South Carolina for a statement.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Senator Harkin is right. This is a 
difficult situation. I am often asked at

[[Page 5900]]

town meetings: Why should the government be involved in the regulation 
of abortion? It is a personal matter. I suppose it depends upon who you 
believe the interested parties are. Obviously, the interested parties 
are the mother, but many in the country believe there is another party 
to the decision process, and the unborn child. Someone has to speak for 
the unborn child.
  In a country where people are free to express themselves, that they 
would outlaw abortion--I find it amazing people who believe it is a 
woman's right to choose would idly sit by and not petition the 
government to change that. The converse is true. This is why we are 
here. This is part of democracy, defining what the law of the land is 
in terms of the beginning of life, the taking of life, and the 
terminating of a life.
  I don't find it odd at all we have these debates. This is exactly 
what a democracy is built upon--the rule of law. There are no 
understandings about the basics of life--when it begins, who can 
terminate it, under what conditions it can be terminated. If it is left 
to everyone's whim and personal desire, that is chaos.
  What we are trying to do in a very reasoned way, with much emotion 
behind the reason, is give our views about how the government, society, 
should deal with the issue of when life begins, what is life, and who 
has the right to terminate it, and under what circumstances. To me, 
that is the essence of the rule of law. I look forward to hearing my 
colleagues express themselves. I do disagree with the concept that the 
government has no role in determining when life begins, how it should 
be ended, and who can end it, in a democracy.
  I yield the floor.
  Mr. SANTORUM. I say to the Senator from South Carolina, I appreciate 
the comments.
  The Senator from Iowa read the famous clause out of the Casey 
decision, determining one's own concept of meaning of existence, of the 
universe, of the meaning of the universe, of the mystery of human life. 
The Senator from South Carolina hit the nail on the head. If everyone 
has their own right to decide what life is, what existence is, what the 
universe means--if we are not bound at all by any kind of societal 
norms, if we have the right to decide all these things, the kids who 
rushed into Columbine had it right because they said: I am law. My view 
of the world is what counts and that is all that counts. That is what 
this clause says: What I say goes.
  That is what this clause says. That is where we are. That is where 
the line of cases have taken us. It is simply about our brute force, 
our positive rights. Society does not matter; it is what we want. The 
Congress should not be involved in this. It is what you want.
  That is not the country that our Founding Fathers put together. That 
is not the Constitution they drafted. That, by the way, is why the 
right to abortion is not written in the Constitution.
  This is a slippery slope we are heading down. In deference to the 
Senator from Massachusetts who is in the Chamber, I will define that 
slope momentarily.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. HARKIN. I yield 10 minutes to the Senator from Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, the Republican leadership is wrong to 
ask the Senate to support legislation that has been ruled 
unconstitutional by numerous courts. Since the last debate in the 
Senate in 1999, the Supreme Court found a very similar law enacted by 
the State of Nebraska to be unconstitutional. This bill is 
unconstitutional as well.
  The Republican leadership has chosen to make as its top priority a 
flatly unconstitutional piece of legislation at a time when so many 
families across the country are facing economic hardship, when 
communities are struggling to deal with homeland security needs, and 
being forced by State budget crises to cut back on education and health 
care.
  Because of the Republican leadership's decision to act on this bill, 
we will do nothing this week to provide an economic stimulus plan for 
the Nation's families and workers. We will do nothing to provide new 
funding for communities struggling to protect themselves from new 
terrorist attacks. We will do nothing to help the millions of uninsured 
children in this country get the health care they need. We will do 
nothing for schools struggling to meet higher standards under the No 
Child Left Behind Act. We will do nothing to help college students 
struggling to pay tuition and relieve their debt. We will do nothing to 
help the millions of families across the Nation who are worried about 
their economic future.
  Let us be clear as to what this bill does not do. This bill does not 
stop one single abortion. The proponents of this bill distort the law 
and the position of our side with inflammatory rhetoric, while 
advocating a bill that will not stop one single abortion. This bill 
purports to prohibit a medical procedure that is only used in rare and 
dire circumstances. It is not used for unhealthy mothers carrying 
unhealthy babies. If this bill is passed, a doctor could be forced to 
perform another, more dangerous procedure if it becomes necessary to 
terminate a pregnancy to protect the life, the health of the mother.
  This bill does not protect the health of the mother. Nowhere is there 
language that will allow a doctor to take the health of the mother into 
consideration, even if she were to suffer brain damage or otherwise be 
permanently impaired if the pregnancy continued. And this bill is not 
needed to protect the life of the babies who could live outside the 
mother's womb because those babies are already protected under the law 
of the land.
  In Roe v. Wade, the Supreme Court specifically held that unless there 
was a threat to the life, health of the woman, she did not have a 
constitutional right to terminate a pregnancy after viability.
  So what is this legislation all about? It is about politics and 
inflammatory language and hot-button topics, but it is not about 
stopping abortion.
  Because of the sound and fury and high emotion that surrounds this 
issue, I make my own personal views clear. I am pro-choice. But I 
believe that abortion should be rare. I believe we have an obligation 
to create an economy and the necessary support systems to make it 
easier for women to choose to bring children into the world. If the 
proponents of this legislation were serious about limiting the number 
of abortions in this country, then we would be debating access to 
health care, quality education, the minimum wage, and other issues of 
economic security that are so important to parents bringing up 
children. Those issues are not on the Republican leadership's agenda.
  Instead, for rank political reasons we are here this week debating 
the so-called partial-birth abortion. I do not believe it is the role 
of the Senate to interfere with or regulate the kind of medical advice 
that a doctor can give to a patient. The doctor-patient relationship 
and the protection of the health of the mother is what is in jeopardy 
with this legislation.
  From the time of the 1973 decision in Roe v. Wade through to the 
Stenberg-Carhart decision, the Constitution allows States to restrict 
postviability abortion as long as there are protections for the life 
and the health of the mother. Indeed, 41 States already ban 
postviability abortions regardless of the procedure used. My own State 
of Massachusetts prohibits these abortions except when the woman's life 
is in danger, or the continuation of the pregnancy would impose a 
substantial risk of grave impairment of a woman's health. I would vote 
for a postviability ban that protects women's life and health today.
  The role of the Senate is to protect and defend the Constitution of 
the United States. Each of us in this body has taken that oath of 
office, and that oath of office and the Constitution require me to 
oppose this legislation. This bill unconstitutionally seeks to restrict 
abortion in cases before viability. It does not provide an exception to 
protect the mother's health after viability. It also impermissibly 
attempts

[[Page 5901]]

to interfere with the doctor-patient relationship. For all these 
reasons, I oppose this bill.
  Finally, I commend my friend and colleague, Senator Harkin, and 
indicate my strong support for his amendment. This is a reaffirmation 
of the 1973 Supreme Court decision. It gives focus to the underlying 
debate and the policy issues which surround this whole issue.
  As the Senator remembers so well, before Roe as many as 5,000 women 
died from illegal abortions each year. Many others suffered serious 
complications. In the years since 1973, the number of deaths resulting 
from abortion procedures has decreased dramatically. In order to keep 
abortion safe, we must keep it legal. That is why I support Senator 
Harkin's amendment and strongly urge my colleagues to do so as well.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. I yield 15 minutes to the Senator from Nevada.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Madam President, I will spend a little time today talking 
about the amendment. But I also want to talk about the underlying bill.
  This is an incredibly emotional issue for people across America. It 
is an incredibly emotional issue for people in this body. There truly 
are good people on both sides of this issue.
  I believe the people who support abortion are wrong. Those who 
support abortion look at myself and others on this side of the issue, 
and think that we are wrong. But I do not look at the other side, and 
think that the people are evil or that they have evil intentions. I 
just think that they are not seeing the truth about what abortion truly 
is.
  To talk about the bill itself: it has been described--it cannot be 
described too often, what a so-called partial-birth abortion really is; 
a D&X procedure--whatever you want to call it. So let me describe that.
  I am a veterinarian by profession, so I understand a little bit about 
surgery and medical procedures. When I read through this particular 
procedure, it is amazing to me, as a health care worker, how any 
physician or any nurse could participate in this procedure and not be 
horrified.
  What happens is a woman goes in the first day, and she has some local 
anesthetic put on her cervix. Then she has some clips put on that will 
help her dilate. She comes in the next day; same procedure; it helps 
her dilate some more. The third day she comes in, she is treated with 
some medication, including pitocin, which is something to help--just 
like when a woman is having trouble delivering--it helps to stimulate 
the birthing process, to put it in the simplest of terms.
  While the woman is on that drug, they use an ultrasound to look at 
the woman's abdomen; to look inside the uterus. Looking at the 
ultrasound picture, the doctor can insert a clamp--basically some 
forceps--to grab one of the legs of the baby. The baby is in there, 
moving around. This ultrasound allows them to grip one of the baby's 
legs and not grab part of the uterus, because obviously that would be 
very dangerous to the woman.
  As he or she grabs that leg, they then pull it down into the birth 
canal. That one leg then comes out of the cervix. The physician then 
takes one of his other fingers and grabs the other leg and brings them, 
both of the legs, down. Once into the birth canal, the doctor kind of 
wriggles them down a little bit and gets them to where (this would be 
the back of the baby) everything except the head--the head is still 
inside what is called the cervical os, and at that point the head is 
usually too large to come down.
  That is the point where the physician puts his fingers around this 
little--I will call it what it is. They call it a fetus, but it is a 
little human being, whether you call it a fetus or baby or whatever you 
call it. It is a little human being.
  This little human being is alive. You can feel it. You can feel the 
heart beating. You can feel movement in the legs. There is no question 
that the person who is performing this procedure can feel life in their 
hands.
  As he puts his fingers around there, he brings usually a pair of 
Metzenbaum scissors, a kind of curved scissor, around the back and has 
to make sure he doesn't cut the cervix, so he has to elevate the cervix 
away from the baby's skull. Then right at the back of the baby's skull 
he inserts some kind of a forceps, usually the scissors, and makes an 
opening right at the back of the skull; then he will slide an 
instrument in that will suck the baby's brains out.
  Try to imagine this. You have this little baby in your hands, and you 
are going to suck that brain out. As you do, you will feel the life go 
out of that little baby. Anybody who can listen to what is done in this 
procedure and say that as a civilized country we should allow this to 
go on--it boggles my mind. At that point, the skull collapses and the 
baby is allowed to be delivered.
  In our society, under our current laws, if for some reason that 
cervix dilated a little more and this baby, while it was being brought 
down, slipped out, came fully out, this doctor who performed that same 
procedure, now, this much farther down--that would be considered murder 
under our laws. So this procedure really is a question of distance. We 
are 3 inches away from murder by our own laws.
  If the baby is 3 inches up the birth canal, it is just an abortion. 
Three inches down, it is considered murder. This procedure is 
infanticide. A civilized society should never allow this kind of thing 
to go on. That is why we need to ban it.
  A study published in the New England Journal of Medicine reports 
that--we have heard the exception for the health of the mother. For the 
life of the mother, we all agree. If it is the life of the mother, you 
can't have them both live, so you have to choose. But at 15 to 16 weeks 
of gestation, that is the point at which an abortion becomes more 
dangerous than childbirth. Partial-birth abortion generally happens 
after 20 weeks of gestation.
  We have heard that we need to have exceptions for the mother's 
health. Abortionists say that if the language that was proposed earlier 
is passed, they would be able to use that language ``health of the 
mother'' to be able to perform an abortion any time, any place, at any 
month of pregnancy, and use this procedure. It would be allowed. That 
is why the health of the mother exception we keep hearing about is such 
a bogus argument. It is healthier for the mother to allow it, the baby, 
to reach full gestation.
  In the terrible case of what is called an anencephalic baby, one 
which is born with not enough neural tissue to develop, we know they 
are going to die a very short period of time after they are born; it is 
safer for the mother to have that child. I would even argue that it is 
safer for them from a mental health standpoint. It is part of the 
grieving process we need to go through when we lose a child, just 
holding that child.
  To just dismember it, or suck out its little neuro tissue, and 
deliver it that way can be worse for the mental health of the mother 
than actually allowing it to go full term, and then to go through the 
normal grieving process. All the mental health professionals tell us 
that denying mental grieving processes can actually be worse for 
people.
  I think the health arguments are really not very good arguments. I 
think they are weak on their merits. It is just impossible to justify 
the type of things that go on with this procedure. We really should be 
banning it.
  I appreciate the sponsor of the bill for the work he has done on 
this, and leading this country, I believe, in the right direction.
  I want to make a couple of other comments on the underlying 
amendment, which is an amendment talking about Roe v. Wade.
  Once again, really good people disagree on this issue. They look at 
it differently. I am the father of three. Actually, with my third 
child, the doctor didn't get there on time, and I, along with the 
nurse, delivered our third child. We could see him on the ultrasound 
throughout the process. Just being through the miracle of

[[Page 5902]]

childbirth when every one of my children was born, I cried like a 
little baby. I didn't know which one was crying harder, the baby when 
it came out, or the father.
  Appreciation for life is so important, I believe, in society. I think 
the whole idea of abortion has degraded the value of life in our 
society. We need to get back to valuing life. Life is so precious. We 
cannot take it for granted.
  While I don't want to say anything against somebody else who feels or 
believes differently on the other side; if you really believe it is a 
baby, then we shouldn't be taking that innocent life. We should value 
it instead. I believe it is a baby from the time of conception. I 
believe that what we should be protecting are the babies, as human 
beings.
  If you know anything about embryology--obviously veterinarians study 
a lot of embryology. Physicians study it, nurses, and any health care 
professional studies embryology. When a human being is conceived, it is 
not going to be anything but a human being. When you see the 
embryological picture, they may look like something else early on, but 
they are fully human. The full human chromosome complement is there 
from the time of conception. It isn't something that is added later. It 
is just in a different stage of development. It is very analogous to 
how my 5-year-old is at a different stage of development than that of 
my 11-year-old. They are both fully human, but they are at a different 
stage of development. A 1-month-old baby is not capable of taking care 
of itself. It is in a different stage of development than an adult. An 
18-week or 16-week or 14-week human being in the womb is just at a 
different stage of development.
  If we learn to protect and value human life, I would submit we would 
be better off as a country.
  I think this debate gets too personal because we don't give credit to 
each side for having legitimate feelings on this issue sometimes. I 
respect people on the other side of this issue. I disagree with them, 
but I respect them. I hope more and more people will form relationships 
with people on both sides of this issue so that more and more dialog 
can happen and we can sit down together and try to look at this issue 
for what it really is. I believe that if we start seeing ourselves as 
children of God, that we, in the long run, will value human life, and 
some day we will stop abortion from happening in America.
  I thank the author of this bill. I thank him for all of his great 
work on this. I consider him a great friend and a great American for 
doing this.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HARKIN. Madam President, I yield 15 minutes to the distinguished 
Senator from New York.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. CLINTON. Madam President, I thank my friend from Iowa. I thank 
him for introducing this important sense-of-the-Senate resolution 
amendment that will reaffirm Roe v. Wade, making it very clear that the 
policy of this Senate is for abortion to be legal, safe, and rare.
  But I have to confess I am somewhat bewildered that we are having 
this debate at this time in our Nation's history. Obviously, the 
Republican leadership here in the Senate--along with the House and the 
White House--has made a choice. Of all the grave challenges facing our 
Nation at this moment in history, we want to work together to 
criminalize a private medical decision made by women and their 
physician. With so much at stake, and when our economic security, 
national security, and domestic security are at stake, I believe that 
is an unusual and, in my view, a misguided choice.
  Today, 300,000 men and women wearing the uniform of our military 
stand in harm's way in the Persian Gulf. The other day we learned that 
Iran has progressed at an alarming rate for developing its own nuclear 
weapon capacity. North Korea continues to lob both rhetoric and 
missiles to demonstrate that it is wanting to be taken seriously as to 
the threat it poses to our immediate, imminent security.
  Thousands of Americans continue to fight against al-Qaida in 
Afghanistan and search for Osama bin Laden. With so many American lives 
on the line, the Republican leadership has decided to spend its time 
working to criminalize a medical procedure that is used in very few 
cases and only when the health and safety of the woman is at stake.
  Today, we know with all of these global uncertainties that we have a 
deepening economic crisis made worse because of the potential for war. 
Last month, we lost 312,000 private sector jobs--the steepest decline 
since the days following the attack of September 11. Consumer 
confidence has dropped to its lowest level since October 1993. The 
number of Americans who have been out of work for 6 months or longer 
has climbed to nearly 2 million. February marked the 20th consecutive 
month the private sector experienced negative job growth--the longest 
stretch of negative job growth since World War II.
  With so many American families struggling to make ends meet until 
they can find work, the Republican leadership has made the choice to 
debate how best to criminalize a private medical decision made by women 
and their doctors.
  Just last week, we learned the Federal budget crisis is far worse 
than was previously reported. The deficit is at a record $304 billion 
and climbing. Projections to eliminate our debt by 2008 have been 
replaced with new projections that have our debt level rising to 
historic highs.
  You know about the $5.6 trillion surplus this administration 
inherited. It is gone, along with our Social Security and Medicare 
trust funds. Out in our States, our States, our cities, and our 
counties are facing incredibly difficult economic times. The States are 
facing a combined budget deficit of $85 billion--the worst financial 
crisis in a generation. We still have billions and billions of dollars 
of unmet homeland security needs.
  With so much uncertainty here at home, the Republican leadership has 
made the choice to debate how best to criminalize a medical procedure 
for women.
  I have to ask myself: Why was this moment chosen for this debate? Why 
aren't we debating the steps we could take to help the 8.5 million 
Americans who are out of work? Why aren't we debating how we can get 
our Federal budget back on the road to balance and begin to diminish 
these overwhelming deficits and this increasing debt load we will leave 
on the backs of our children?
  Why are we not debating the necessity of our paying our bills? Why 
are we not debating what needs to happen if and when those 300,000 men 
and women in the military in the Persian Gulf are called to action, and 
in the days that would follow a military victory?
  As I travel around, talking with people in my State, that is what 
they talk to me about: What about this war, Senator Clinton? What is 
going to happen after a war, if it happens? What about homeland 
security? Are we as safe as we need to be here at home? Senator, what 
can we do about the jobs that are disappearing, the stagnant economy? 
How on Earth can we deal with this overwhelming budget deficit? What 
about not funding No Child Left Behind and the burdens that are being 
put on public education as a result? When are we going to get around to 
a prescription drug benefit for our seniors who are suffering and 
having to face these large bills? What are we doing to protect our 
environment? We are, after all, stewards of our natural environment for 
future generations.
  Those are the questions I am being asked. Not only do I believe this 
is an inappropriate and unfortunate time for this debate to be 
occurring, but I find it deeply ironic that it is taking place in the 
month of March, Women's History Month.
  Apparently, some people believe that the purpose of Women's History 
Month is to literally bring us back to a time in history when women had 
no choices. Instead of celebrating our accomplishments and improving 
the health and

[[Page 5903]]

safety of women in the United States and internationally, there are 
those who would put women's health at risk.
  But if we are to debate this emotional issue, then we must do so with 
great care--care about the words we use and the laws we write. Every 
time we use inflammatory language in this Chamber, it limits our 
ability to talk about this very private, personal decision between a 
woman, her loved ones, and her doctor.
  Emotions run high with this issue. And I deeply appreciate my good 
friend from Nevada and the way he acknowledged we have very serious 
differences. But this is not a place nor is this a subject where we 
should be using language as a weapon to divide Americans.
  So I am very concerned about some of the words I have heard used on 
this floor over the last several days. ``Execution,'' ``murder''--those 
are very inflammatory words that do not do justice to this great 
Chamber, nor to the seriousness of this debate.
  I am also concerned about some of the visual aids that have been used 
by some of my colleagues. They are as deceptive as they are 
heartbreaking. Because what do they show? They show a perfectly formed 
fetus, and that is misleading. Because if we are really going to have 
this debate, then we should have a chart that demonstrates the tragic 
abnormalities that confront women forced with this excruciatingly 
difficult decision. Where are the swollen heads? Where are the charts 
with fetuses with vital organs such as the heart and the lungs growing 
outside the body? Why would we choose not to demonstrate the reality of 
what confronts the women I know, women who come with medical diagnoses 
that have said the brain in the head is so swollen that the child, the 
fetus, your baby, is basically brain dead? Now, it can be kept alive 
because it is on life support in the mother's body, but let me tell you 
what the realities are: these children cannot live outside the womb for 
more than mere seconds or minutes. That is what these women hear when 
they go in for their medical examinations and get the worst news that 
any potential mother could receive.
  So a picture is worth a thousand words, as long as it is a realistic 
picture about what it is we are confronting, because a large part of 
this debate is about words, the words that are left out of this bill: 
the health and well-being of the mother.
  The way this bill is written, the choice of language eliminates the 
distinction of trimesters. The vagueness makes this bill applicable to 
many other procedures in addition to the ones explicitly named. This 
bill is extreme, deceptive, and unconstitutional.
  As my colleague from Pennsylvania stated: This is the beginning of 
the end. And that is absolutely what he means. If this bill passes, it 
is the beginning of the end of Roe v. Wade, it is the beginning of the 
end of the right of women in this country to make the most personal and 
intimate decisions that any of us would ever be called upon to make.
  Yesterday, I had the opportunity to sit down with several women who 
have gone through this terribly difficult decision. What was so sad 
about each of these women's stories was how much each of them wanted 
the child they were carrying--only to learn that a fatal abnormality 
had inflicted each one, creating an unshakable sorrow. Each woman knew 
that her baby would not live long in utero or for no more than seconds 
or minutes outside her womb.
  One of the women in my office told such a sad tale of what had 
happened to her and her husband. After trying so hard to become 
pregnant, they were thrilled when she discovered she was pregnant. But 
her happiness quickly turned to grief when doctors explained that her 
daughter had a genetic syndrome called Trisomy 13.
  Now, many fetuses with Trisomy 13 die in utero. And those who survive 
birth do not live for long.
  Her choice was not easy, and it was a choice she made with 
professional medical advice and with her family.
  This young woman, Audrey Eisen, a Ph.D. student, articulated her 
concern perfectly when she wrote:

       Along with my sadness came a realization that if such 
     legislation passed the right to safe second trimester 
     termination of pregnancies might not remain available to 
     those women who come after me. In this event, I don't know 
     how these women will endure; I don't know how I would have 
     endured.

  I also met with Maureen Britell yesterday. Her daughter had developed 
a disorder where the brain stem develops. It is a disorder instead of a 
brain. After consulting with the experts at New England Medical Center, 
her family, and friends, she terminated her pregnancy. And listen to 
what she says:

       Now I'm sharing my story not only as a mother who would be 
     banned from having an abortion, but as a military wife. I 
     find the timing of this bill highly offensive, as we military 
     families are just days away from sending our loved ones into 
     armed combat. I resent the administration using families like 
     mine as a cloak in their effort to ban reproductive health 
     care in this country.

  Madam President, I ask unanimous consent that the full statements of 
both of these women be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   Audrey Eisen in Opposition to S. 3

       I believe that I am not atypical--34 years old and 
     desperately wanting children. My husband and I are both 
     graduate students, pursuing our PhDs in physics and 
     microbiology, respectively. Tom and I have been together for 
     eight years, married for four, and trying to have a baby for 
     two. In November of 2002, after successfully fighting 
     hormone-related infertility and experiencing the sadness of a 
     miscarriage in July, we were thrilled to find ourselves 
     pregnant!
       While still apprehensive, we consciously decided to be 
     excited--another loss would hurt just the same, regardless of 
     whether or not we had allowed ourselves to be happy. In the 
     first few months, my endocrinologist performed ultrasounds 
     about every week and a half to ensure that the embryo was 
     developing normally. It was such a treat to be able to see 
     our child growing. I keep the pictures and my thoughts in a 
     pregnancy journal.
       When it became evident that we were going to make it 
     through the first trimester, my endocrinologist referred me 
     to an obstetrician (OB). At my first appointment the nurse 
     put a Doppler to my belly and, much to my amazement, from a 
     seemingly great distance I hear the characteristic ``whoosh'' 
     of my child's heartbeat. We were on top of the world thinking 
     that, for sure, this one was going to make it.
       At 13 weeks we had a special ultrasound scheduled. Upon 
     examination of the fetal anatomy we discovered that the child 
     had polydactyly (more than the normal number of digits). 
     While at first we thought it was just the hands, we later 
     learned that the feet were affected as well. At the time, my 
     husband and I thought that this was no big deal--we had both 
     known people with an extra finger. However, we soon found out 
     that polydactyly is associated with over 100 syndromes, most 
     commonly Trisomy 13.
       Trisomy 13 is a chromosomal abnormality in which there are 
     three, rather than two, of the 13th chromosome. This syndrome 
     is characterized by multiple abnormalities, many of which are 
     not compatible with life beyond a couple of months. Most 
     fetuses with Trisomy 13 die in utero; of those who make it to 
     birth, almost half do not survive past the first month; 
     roughly three-quarters die within 6 months. Long-term 
     survival is one year. Unfortunately, neither life nor death 
     come easily for these children--theirs is a painful 
     experience marked by periods of breathing cessation (apnea) 
     and seizures. Because my OB was unable to get a good image of 
     the brain during the 13th week ultrasound, we returned at 15 
     weeks.
       The first thing my OB examined during this ultrasound was 
     the fetal brain. He did not say anything. I could tell he was 
     holding something back and asked that he tell me what he saw. 
     He said, ``It is not normal.'' The rest of the scan was a 
     blur as tears ran down my cheeks and those of my mother and 
     husband, who had accompanied me. Following the scan, the 
     doctor left us alone to compose ourselves, after which we met 
     with a genetic counselor. I cried with my whole body, from 
     the depths of my soul.
       Shortly thereafter, I had amniocentesis. My doctor informed 
     us that the full amnio results would take two weeks, but we 
     could have FISH (fluorescence in situ hybridization) results 
     in a couple of days. We had both studies done. The FISH 
     results were as expected; our baby had Trisomy 13.
       At this point we discussed our options with the genetic 
     counselor. My husband and I both felt strongly that it was in 
     both the child's and our best interest to terminate as 
     quickly as possible. The genetic counselor told us that we 
     could either have a D&E or be induced. My doctor described 
     both procedures, and we decided that a D&E was clearly best 
     for me. The procedure was performed four days later, on the 
     first day of my 16th week of pregnancy.

[[Page 5904]]

       Upon arriving home from the hospital following my D&E, a 
     news story appeared on the television describing new 
     legislation in the state senate aimed at banning ``partial 
     birth abortion.'' I don't think that I really understood this 
     issue, emotionally or intellectually, until I was in the 
     position of having to terminate my much-desired pregnancy. 
     Along with my sadness came a realization that if such 
     legislation passed the right to safe second trimester 
     termination of pregnancies might not remain available to 
     those women who come after me. In this event, I don't know 
     how these women will endure; I don't know how I would have 
     endured.
       Two weeks following the procedure, we received a letter 
     from the genetic counselor with the full results of the amnio 
     and a summary of the ultrasonic findings. Our child had a 
     complete duplication of the 13th chromosome and exhibited 
     holoprosencephaly, a failure of the forebrain to properly 
     develop and separate from the rest of the brain, a 
     ventricular septal defect in the heart, and omphalocele, a 
     herniation of a portion of the abdominal organs into the 
     umbilical cord. Our child was also a girl and we miss her 
     very much. In our case, abortion was the only choice.
                                  ____


                  Statement by Maureen Britell on S. 3

       In February 1994, my family was happily awaiting the birth 
     of Dahlia, our second daughter. My pregnancy was progressing 
     smoothly and we were getting more excited as the days and 
     weeks passed. At the time, my husband, Andrew, was on active 
     duty in the Air Force and had been unable to come to any of 
     my routine prenatal checkups. He wanted to share in the 
     excitement, so when I was five months pregnant, we scheduled 
     an additional ultrasound.
       When we went in for our appointment, that joy dissipated. 
     The technician was unable to locate my daughter's brain. 
     After my doctor came in, he informed us that Dahlia had a 
     fatal anomaly called anencephaly, where the brain stem 
     develops, but not the brain.
       I went to the New England Medical Center for a high level 
     sonogram, which confirmed what my doctor had told me. The 
     medical experts at the New England Medical Center reviewed 
     our options with Andrew and me, but they all recommended the 
     same thing: to protect my health, we should induce labor.
       I am a Catholic and the idea of ending my pregnancy was 
     beyond my imagination. I turned to my parish priest for 
     guidance. He counseled me for a long time, and in the end, he 
     agreed that there was nothing more I could do to help my 
     daughter. With the support of our families and our priest, 
     Andrew and I made the decision to end the pregnancy.
       I was scheduled for a routine induction abortion in which 
     medications are used to induce labor. My doctors anticipated 
     that it would be a standard delivery and that because Dahlia 
     had no brain she would die as soon as the umbilical cord was 
     cut. After 13 long hours of labor, I started to deliver 
     Dahlia. Unexpectedly, complications arose and Dahlia lodged 
     in my birth canal. The placenta would not drop. Our doctors 
     had to cut the umbilical cord to complete the delivery, and 
     avoid serious health consequences for me. Dahlia died while 
     still in my birth canal--the same description used in the so-
     called ``partial birth abortion.''
       My husband and I still mourn the loss of Dahlia. However, 
     because of the excellent medical care I received, I was able 
     to become pregnant again and in June 1995, we welcomed 
     Nathaniel into our family.
       Now I'm sharing my story not only as a mother who would be 
     banned from having an abortion, but as a military wife. I 
     find the timing of his bill highly offensive, as we military 
     families are just days away from sending our loved ones into 
     armed combat. I resent the administration using families like 
     mine as a cloak in their effort to ban reproductive 
     healthcare in this country.
       In a perfect world, I would never have to write you this 
     letter. Every pregnancy would be wanted, healthy and happy--
     and no loved ones would be going off to war. Until that time, 
     however, there will be other families like mine. And until 
     that time, abortion must be kept safe, legal and accessible.

  Mrs. CLINTON. Now, if these bills were to pass, each of these women 
would have been forced to carry their babies to term, only to see a 
child with such severe abnormalities die upon or shortly after birth. 
Their choices would have been limited not because of their moral and 
religious beliefs--which I deeply respect--nor because of their medical 
advice--which I can't possibly second-guess--but because of their 
Government.
  I have to respectfully disagree with my colleagues about mental 
health. If we have learned anything in the last several decades, it is 
that there is no artificial divide between mental and physical health. 
The mind and the body are a totally integrated system. One affects the 
other. I believe that mental health is health. And I believe that 
forcing a woman to carry a child she knows will die is an assault not 
only on her mental health but on our values as a nation and a free 
people.
  Part of the reason I feel so strongly about this is because as First 
Lady, I had the great privilege of traveling around the world 
representing our country. I have been to many places I never thought I 
would have gone in the past. I have seen what happens in other 
countries. I listened to women throughout the world.
  The PRESIDING OFFICER. The Senator has used 15 minutes.
  Mr. HARKIN. I yield an additional 5 minutes to the Senator from New 
York.
  Mrs. CLINTON. I have listened to women throughout the world who have 
struggled against government regimes that forced them to bear children 
or to abort them. The decision was taken totally out of their hands. It 
was left to chambers such as this to make those most personal and 
intimate of decisions. I will give you a few quick examples.
  In pre-democratic Romania, they had a leader named Ceausescu, a 
Soviet style Communist dictator, who decided it was the duty of every 
Romanian woman to bear five children so they could build the Romanian 
State. So they eliminated birth control, they eliminated sex education, 
and they outlawed abortions.
  Here is what happened to you if you were a woman in Romania during 
the Ceausescu regime: Once a month you would be rounded up at your 
workplace. You would be taken to a government-controlled health clinic. 
You would be told to disrobe while you were standing in line. You would 
get up on the table. You would be examined by a government doctor with 
a government secret police officer watching. And if you were pregnant, 
you would be monitored to make sure you didn't do anything to that 
pregnancy.
  When I first heard this, I was dumbfounded. I said: ``Please, that 
cannot be true.''
  That is what happened. If a woman failed to conceive, her family was 
fined a celibacy tax of up to 10 percent of their monthly salary.
  The terrible result was many children were born who were abandoned, 
who were left to be raised in government-run orphanages. We all know 
what happened when unfortunately HIV-tainted blood was used to help 
some of those children for medical reasons, and there was a huge 
outbreak of HIV/AIDS among these Romanian orphans.
  Now go to the opposite side of the world and the opposite side of 
this debate. In China, local government officials used to monitor 
women's menstrual cycles and their use of contraceptives because they 
had the opposite view--no more than one child. So whether it was 
Romania saying you have to have children for the good of the state, or 
China saying you can only have one child for the good of the state, the 
government was telling us what we were supposed to do with our bodies.
  If you wanted to have a child in China, you needed to get permission 
or face punishment. After you had your one allotted child, in some 
parts of China, you could be sterilized against your will or forced to 
have an abortion.
  Today women in Romania and China are working to ensure their 
countries' family planning practices are voluntary and respectful of 
individual rights.
  I don't think we could dismiss these examples. I have seen where 
government gets this kind of power, it can be quickly misused. The old 
standard maxim by Lord Acton: Power corrupts; absolute power corrupts 
absolutely.
  I raise these issues not because they are part of the past or because 
they happened somewhere far away, but because I can guarantee you, 
standing here as a Senator, if we go down this path, you are going to 
have the same kind of overzealous, interfering prosecutors and police 
officials doing the very same kinds of things in this country.
  Why did we ever have to do Roe v. Wade to begin with? Some States 
like mine, let abortion, as long as it was done safely and legally, 
occur under certain circumstances before Roe. Why did we have to have a 
Supreme Court

[[Page 5905]]

decision? We had to have it because in many parts of the country these 
kinds of decisions were not permitted to be made by individual women.
  Look at the progress we have made. The U.S. abortion rate is now at 
the lowest level it has been since 1974. When I was First Lady, I 
helped to launch the National Campaign to Prevent Teen Pregnancy. We 
increased education and public awareness. And since 1991, teen 
pregnancy has also declined. We learned that prevention and education, 
teaching people to make good decisions, really did work. But that is 
not what we are talking about here. We are talking about those few rare 
cases.
  The PRESIDING OFFICER. The Senator's 5 minutes have expired.
  Mr. HARKIN. I yield the Senator an additional 5 minutes.
  Mrs. CLINTON. We are talking about those few rare cases when a doctor 
had to look across a desk at a woman and say, I hate to tell you this, 
but the baby you wanted, the baby you care so much about, that you are 
carrying, has a terrible abnormality.
  We had a chance yesterday to build on these successes and do even 
more for women's health and to prevent unwanted and unsafe pregnancies. 
Senator Murray's amendment would have increased access to contraceptive 
coverage by ensuring basic fairness for women in preventing health 
plans from discriminating against contraceptive coverage in their 
prescription drug plans. Yet my colleagues did not vote for that. They 
would much rather criminalize a health procedure than improve women's 
health. Senator Murray's amendment would have also provided Medicaid 
and CHIP coverage for pregnant women and their newborns. Yet again, we 
defeated that on a budget point of order because we are not really 
interested in women's health. That is not really what this debate is 
about.
  I have to ask myself, why do we, as government officials, expect we 
can make these decisions? We know that people of means will always be 
able to get any health care procedure they deem necessary. That is the 
way it was before Roe v. Wade. That is the way it will be after this 
passes the Senate.
  So who are we really leaving out? We are leaving out the vast 
majority of American women, middle income women, working women who 
can't get on an airplane to go to Sweden or some other place. I have 
also seen the results of that. In a hospital in northeast Brazil, a 
woman's hospital I visited, I went up and down the corridors. Half the 
women were there for the most wonderful of reasons, because they just 
had a baby. The other half were there because of problems they had 
encountered, mostly because of botched back-alley, illegal abortions. 
Some of them lost their fertility forever; some of them lost their 
lives.
  When I asked the minister of health what they were going to do about 
this, he said to me: This is a classic case where it is the poor, the 
middle class that suffer. The rich can get whatever health care they 
need. We can make it illegal to get abortions. That doesn't bother the 
rich. There has always been a double standard. If you are rich, you get 
what you need. If you are poor, you are left to the back alleys.
  That is one of the other reasons we had to do Roe v. Wade, because is 
it fair that we have that kind of distinction made on the basis of 
class or income instead of the basis of law?
  We are facing a moment of historic importance, but not about what we 
should be debating at this time in our history. I only wish this 
legislation were not before us. But now that it is, we have to educate 
the American public.
  I will end by referring again to the young woman, Mrs. Eisen, who was 
in my office yesterday, about 25 years younger than I am. Hard to 
imagine. She said: I had no idea that the decision I made with my 
husband and my doctor to deal with this genetic abnormality was 
something I could have never had under the laws of where I lived 
before, and that if this passes, it will become illegal in the future.
  I said: Well, you didn't have to think about that. That was something 
that, thankfully, we took off the national agenda. But there are those 
who, from very deeply held beliefs, which I respect, would wish to 
substitute the Government's decision, just like they did in Romania and 
China, or substitute the roll of the economic dice, such as happens in 
Brazil and elsewhere for what should be a difficult, painful, intimate, 
personal decision.
  This bill is not only ill-advised, it is also unconstitutional. I 
understand what the other side wants to do. They are hoping to get 
somebody new on the Supreme Court and to turn the clock back 
completely, to overrule Roe v. Wade, which is why the Senator from Iowa 
has such a timely amendment.
  Is this bill really about what the sponsors say, or is it, as they 
candidly admit, the beginning of the end--to go back in this country to 
back-alley abortions, to women dying from botched, illegal procedures? 
I think you can draw your own conclusions.
  It is up to the American public to determine whether they want 
medical decisions being criminalized by this Senate. Thank you.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Will the Senator yield for a question?
  Mrs. CLINTON. Yes, on the Senator's time.
  Mr. SANTORUM. Yes. The Senator from New York said that the women she 
had in her office who had late-term abortions--you characterized it 
that they would be ``forced to carry their children to term'' if this 
bill passed. Do you stand by that statement?
  Mrs. CLINTON. Yes, I do.
  Mr. SANTORUM. So you believe if this legislation passes outlawing 
partial-birth abortion, no late-term abortions would be available?
  Mrs. CLINTON. That is what I believe based on what I consider to be 
the slippery slope of the legislative language that you have carefully 
and cleverly crafted in this bill.
  Mr. SANTORUM. OK. I suggest that the Senator from New York examine 
the language. It is very clear that this is one particular kind of 
abortion we have addressed, and we have addressed the vagueness, as put 
forth by the U.S. Supreme Court. And there are other techniques 
available for abortion that are late term in nature, and this bill 
would in no way stop other abortions. In fact, the previous speaker on 
the Democrat side, Senator Kennedy, made that very point. He made the 
point that this will not stop abortions.
  I respect your feelings and I also respect Senator Kennedy's. You 
both oppose the bill and you have opposite opinions on this issue.
  Mrs. CLINTON. Will the Senator permit me to respond to his statement?
  Mr. SANTORUM. Yes.
  Mrs. CLINTON. I heard the Senator from Massachusetts referencing the 
fact that, legal or illegal, this is not going to prevent abortions 
where they are necessary.
  My reading of the legislative language you have put forth, makes a 
very clear argument that this is a slippery slope; that there are going 
to be not only difficulties in defining procedures, but the fact is 
that once you have criminalized this procedure, what doctor will 
perform any medically necessary procedure? There is no reason to 
believe any doctor would put his practice and his life at risk.
  As we know right now, a trial is going on in Buffalo, NY, for the 
murder of a doctor who provided such services.
  Mr. SANTORUM. I thank the Senator. I gave her an opportunity to 
answer, and I have a couple more questions. No. 1, you suggested that 
this procedure was extreme. Does the Senator know the most recent 
Gallup polls--the polls consistently have shown that the banning of 
this procedure is supported by anywhere from 65 to 75 percent of the 
American public? What is your definition of ``extreme''?
  Mrs. CLINTON. I respond to the Senator from Pennsylvania that I think 
it is extreme when the Government prescribes medical procedures that 
may--despite their not being ones that most of us would ever hope to 
have experienced by any loved one--be necessary in certain specific 
events, that were medically determined.
  Mr. SANTORUM. So you would suggest that something that is supported

[[Page 5906]]

by--you are going to maintain your comment that something that is 
supported by 70 percent of the American public is extreme?
  Mrs. CLINTON. Well, I think the Senator from Pennsylvania is posing a 
false syllogism. Clearly, if people are told in a poll about the kinds 
of procedures that might be medically necessary out of context, I can 
certainly understand why the reaction might be that is not something 
that we want to talk about, not something we want to think about. But 
what I do think is extreme is making a decision in this body to outlaw 
a medical procedure that may be required and medically necessary.
  Mr. SANTORUM. So you don't think the American public understands this 
issue well enough to be able to form a judgment--I think that is what 
you are saying--even though we have debated this issue and it has been 
very much in the literature across America now for 7 years. There have 
been referendums in States and wide debate. You just don't think the 
public understands it. I beg to differ with you on that. I think I 
could stipulate that something that has the support of 70 percent of 
the public is, by definition, not extreme. So if you don't agree, that 
is your position, and I respect that.
  The other thing you said was the chart I had up is ``deceptive.'' I 
am very curious about how you came to that conclusion. Is it deceptive 
because it shows a perfectly formed baby?
  Is the Senator aware of Ron Fitzsimmons who runs the Association of 
Abortion Clinics? He has said, when the argument was made by many of 
the people Senator Boxer and Senator Murray and yourself referred to, 
who came forward and talked about this being medically necessary or 
necessary because of complications late in pregnancy--Ron Fitzsimmons 
said he lied through his teeth when he gave that argument? That was his 
term. He said, ``I lied through my teeth'' that this was the case. He 
said it is a dirty little secret, and we all know--those are his 
terms--that late-term abortions are performed, and the vast majority of 
late-term abortions are performed on healthy mothers with healthy 
babies.
  So do you believe it is deceptive to put before the American public 
the typical case of where a partial-birth abortion is performed, or 
would it be more deceptive to try to convince the American public that 
this is done for medical reasons, or on sick babies in the majority of 
cases, when it is not true?
  Which would you say is more deceptive?
  Mrs. CLINTON. You know, on the Senator's point, I am not arguing 
against any public education effort, any proselytizing, any means 
whatsoever to persuade people about what choice they should make. I 
don't, in fact, think that we have done enough to educate the public 
about reproductive health, about how to prevent unsafe and unwanted 
pregnancies, about how to improve contraception, and about what is 
really at stake in this debate over a women's right to make decisions 
about her own reproductive health. But for the Senator to imply that 
there are never instances of abnormalities and problems like the ones 
represented by the women in my office yesterday, which would be 
outlawed by your legislation, I believe is deceptive.
  We could solve this, as we have now for 20, 30 years, by saying this 
is a debate that does not belong in the United States Senate. It 
belongs in the hearts, minds, consciences of women and their loved 
ones, and in the medical offices of America, not the U.S. Senate.
  Mr. SANTORUM. I will challenge you to find anyplace in the record 
over the last 7 years where I said that was never the case. I have 
never said there are not difficult cases. What I have said repeatedly, 
because I wanted to be truthful with respect to the factual situations 
with which we are presented on the issue of late-term abortions and the 
instances in which partial-birth abortions are used--I refer the 
Senator to the State of Kansas where they have to report the reason for 
a partial-birth abortion; 182 were done last year, or the year before, 
and of those 182, none--zero--were done because of a problem with the 
child or a physical problem with the mother. They were classified as 
mental health.
  So I suggest to the Senator that those in the abortion industry 
themselves say this is the typical procedure on the typical baby. There 
may be--and there are--a small number of cases that are late-term where 
you find out the child within the womb has a fetal abnormality and may 
not live. I just suggest--and you used the term--where is the brainless 
head? Where are the lungs outside the body? I will just say I will be 
happy to put a child with a disability up there. But, frankly, I don't 
see the difference in my mind--and I am not too sure the public does--
with respect to that being any less of a child.
  It is still a child, is it not? Maybe it is a child that is not going 
to live long, but do we consider----
  Mrs. CLINTON. Will the Senator yield?
  Mr. SANTORUM. In a moment. Do we consider a child that may not live 
long, or may have an abnormality, to be less of a child? Is this less 
of a human because it is not perfect? Have we reached the point in our 
society where because perfection is so required of us, that those who 
are not perfect don't even deserve the opportunity to live for however 
long they are ticketed to live in this country?
  Are we saying we need these kinds of infanticides to weed out those 
who are not going to survive or those who are not perfect, and that 
somehow or another we have to have a method available that we only 
allow perfect children to be born? If that is the argument, I am 
willing to stand here and have that debate. If that is what you want us 
to show, I am willing to stand and show that.
  I suggest this is the typical abortion that goes with partial-birth. 
That is exactly what the industry says is the case. If the Senator 
would like me to find a child that has a cleft palate, I can do that. 
That doctor from Ohio performs a lot of abortions. He says he did nine 
in one year because of that. If she would like me to show a case of 
spina bifida, I can do that. That may be a reason someone has to have a 
late-term abortion.
  I would be happy to show those, but those are the exception rather 
than the rule, and I think it is imperative----
  Mrs. CLINTON. Will the Senator yield?
  Mr. HARKIN. Will the Senator yield for a question?
  Mr. SANTORUM. I will be happy to. It is imperative upon us to present 
the standard, the predominant case in which partial-birth abortions are 
done, and that is what we are doing. I will be happy to yield for a 
question.
  Mrs. CLINTON. The Senator from Iowa got in first.
  Mr. HARKIN. Go ahead. The Senator is engaged in debate. I have a 
question.
  Mr. SANTORUM. Fine.
  Mrs. CLINTON. Does the Senator's legislation make exceptions for 
serious life-threatening abnormalities or babies who are in such 
serious physical condition that they will not live outside the womb?
  Mr. SANTORUM. No, if----
  Mrs. CLINTON. That is the point.
  Mr. SANTORUM. I understand the Senator's point. I guess my point in 
rebuttal is that if you want to create a separation in the law between 
those children who are perfect and those children who are not----
  Mrs. CLINTON. No----
  Mr. SANTORUM. Please, let me finish. If a child is not perfect, then 
that child can be aborted under any circumstances. But if that child is 
perfect, we are going to protect that child more. I do not think the 
Americans with Disabilities Act would fit very well into that 
definition. The Americans with Disabilities Act--of which I know the 
Senator from Iowa has been a great advocate, and I respect him greatly 
for it--says we treat all of God's children the same. We look at all--
perfect and imperfect--as creatures of God created in his image.
  What the Senator from New York is asking me to do is separate those 
who are somehow not the way our society sees people as they should be 
today and put them somewhat a peg below legal protection than the 
perfect child. I

[[Page 5907]]

hope the Senator is not recommending that because I think that would 
set a horrible precedent that could be extrapolated, I know probably to 
the disgust of the Senator from Iowa, certainly to me.
  No, I do not have an exception in this legislation that says if you 
are perfect, this cannot happen to you; but if you are not perfect, 
yes, this can occur. The Senator is right, I do not.
  Mrs. CLINTON. To respond, if I could, to the Senator from 
Pennsylvania, my great hope is that abortion becomes rarer and rarer. I 
would only add that during the 1990s, it did, and we were making great 
progress. These decisions, in my view, have no place in the law, so 
they should not be drawing distinctions in the law. This ought to be 
left to the family involved.
  The very fact the Senator from Pennsylvania does not have such a 
distinction under any circumstances, I think, demonstrates clearly the 
fallacy in this approach to have a government making such tremendously 
painful and personal and intimate decisions.
  Mr. SANTORUM. I certainly respect the difference of opinion the 
Senator and I have on the underlying issue of abortion. Again, I think 
people can disagree on that. I, frankly, do not agree there should be a 
difference between children who are ``normal,'' in society's eyes--I do 
not know what that means anymore, what a society sees as normal--and 
those who happen to have birth defects, severe or not. I do not believe 
we should draw distinctions.
  Mrs. CLINTON. If the Senator will yield for one final point, I want 
the Record to be very clear that I value every single life and every 
single person, but if the Senator can explain to me how the U.S. 
Government, through the criminal law process, will be making these 
decisions without infringing upon fundamental rights, without imposing 
onerous burdens on women and their families, I would be more than happy 
to listen. But based on my experience and my understanding of how this 
has worked in other countries, from Romania to China, you are about to 
set up----
  The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
  Mr. SANTORUM. To liken a ban on a brutal procedure such as partial-
birth abortion to the forced abortion policies of China is a fairly 
substantial stretch, and I do not accept that as an analogy. I do not 
think it holds up under any scrutiny.
  With respect to the other issue, let the record speak for itself.
  Mrs. CLINTON. Madam President, if I can ask the Senator for one final 
point.
  Mr. SANTORUM. On the Senator's time. I have been more than generous 
on my time.
  Mr. HARKIN. I ask the Senator to yield.
  Mr. SANTORUM. On the Senator's time.
  Mr. HARKIN. The Senator has been very good about yielding for 
questions. If the Senator needs more time, I will join him in getting 
unanimous consent to give the Senator more time, if he needs it, 
because he has been very good about getting into a discussion. Do not 
worry about time. We will give you whatever time you want.
  Mr. SANTORUM. I thank the Senator from Iowa.
  Mrs. CLINTON. Is the Senator aware that in the very poll he cited, 
there is another finding? When Americans were asked if a law should be 
passed with no health exemption, 59 percent said no, it should not 
pass.
  Mr. SANTORUM. I appreciate that. Again, that is a good open item for 
debate. I would suggest that most Americans--and that is why this 
debate the Senator from Iowa has brought up is so important--do not 
understand what the breadth of health exception means. I suspect most 
Americans understand when they hear health exception, they believe 
there is some imminent danger to the health of the mother. Of course, 
that is not what Doe v. Bolton says.
  Doe v. Bolton talks very broadly of health. I will be happy to give 
the actual language. Doe v. Bolton is very broad on health to include 
everything from emotional and mental health to familial health, age of 
the mother. It is as broad a term--in fact, the courts have interpreted 
it to mean anything. It is an exception that, frankly, swallows up any 
limitation, restriction on abortion.
  Does the Senator from Iowa have a question?
  Mr. HARKIN. I would like the Senator to yield, on my time or his.
  Mr. SANTORUM. Yield on mine. If I need time, I will let the Senator 
know.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Madam President, I wish to ask the Senator a question. 
There are a number of issues about the Senator's bill that bothers me. 
One is how tightly it is drawn and it affords no leeway whatsoever for 
certain special cases. We talked about the health of the mother. A 
woman who came to see me some time ago--I do not know if this case is 
atypical, but I know it happened to one person. I know it is happening 
to others.
  She and her husband had been trying to have children. She became 
pregnant. She found out the child's--basically the brain was outside 
the head.
  Mr. SANTORUM. Anencephaly is no brain, just a brain stem.
  Mr. HARKIN. I do not know exactly what that all means. Anyway, I do 
know she was told by her doctor that there was a possibility--he did 
not know how remote--but there was a distinct possibility that if she 
carried this child to term, which was going to die right away, that 
because of other complications she had, she might not be able to have 
other children. I am telling you this is what was told----
  Mr. SANTORUM. If I can respond to the Senator from Iowa, the Senator 
from Iowa brings up a very valid point. We reviewed this over and over 
in previous years, and I will address it again.
  No. 1, there are cases where late in pregnancy there are health 
considerations that may cause the child to have to be separated from 
the mother. There is no question about that. The question is, Is there 
a need for this procedure? First off, is there a need for an abortion? 
I think most obstetricians would tell you, no, there is no need for an 
abortion, but there is a need for separation.
  Separation can be through a normal delivery. It can be through a 
cesarean section. So separation is necessary; abortion is not 
necessary.
  The point I am making is this procedure is never medically necessary. 
I have repeated that over and over, and I have asked the Senator from 
California and the Senator from Washington, and many others, if they 
can come forward with a case where this procedure is medically 
indicated, medically necessary. They have not come up with a case 
because there are none.
  There may be cases that the Senator from Iowa has discussed where 
there may be a need for separation, but I would argue not necessarily 
for abortion. If there is such a case--and I am not that much of an 
expert to know that because I am focused on this procedure solely, but 
if there is such a case for abortion, then the answer would be there 
are other, safer--this is what I underscore--procedures done in 
hospitals, by obstetricians, who are trained in medical schools.
  This procedure is done not by obstetricians, not in hospitals, not by 
doctors trained in medical schools.
  I ask the Senator, if it was his daughter, would he want to send her 
to someone to have this procedure who is not an obstetrician, not in a 
hospital, someone who is not trained in medical schools or would he 
rather have her go to a board-certified obstetrician in a hospital and 
have a procedure that is taught in medical schools and has been peer-
reviewed?
  What would the Senator prefer?
  Mr. HARKIN. I would prefer we stick with Roe v. Wade which would 
allow my daughter to go to a hospital and to have a doctor perform a 
procedure on her that in the doctor's best judgment was the safest for 
her.
  If I can just respond further, if the doctor decided this type of 
procedure was safer than a cesarean section, for example, which I would 
submit to my friend from Pennsylvania is every bit as gruesome if you 
would like to describe it, but it is up to the doctor to decide what is 
the safest procedure.

[[Page 5908]]

That is what I would want my daughter to have, so that is why I have my 
amendment on Roe v. Wade.
  Mr. SANTORUM. I understand the Senator from Iowa. I would say if the 
Senator wants his daughter to go to the hospital and have an 
obstetrician give her the best procedure she wants, let me assure the 
Senator she will never have this procedure, because this procedure is 
not done by obstetricians and hospitals. It is not done.
  I suggest to the Senator what we are doing is getting rid of a rogue 
procedure that has been demonstrably testified to that this is 
contraindicated. The AMA: Bad medicine. Their term, not mine.
  I am saying this is a rogue procedure that is outside the medical 
arena. This is outside the standard of care.
  The Senator knows about the issue of standard of care. He is involved 
greatly in health issues as the ranking member of the Health 
Subcommittee on Appropriations. I know he cares deeply about that and 
he knows the issue of standard of care.
  Nowhere in the literature is this considered to be standard of care. 
As a result of that, I make the argument--in fact, I have made the 
argument--that this procedure is not healthy to women and as a result 
should be banned because it is the least safe procedure, and it is not 
appropriate.
  I will answer one more question and then I would like to speak.
  Mr. HARKIN. I say to my friend from Pennsylvania, I am not a doctor. 
I do not know. That is why these are the kinds of things that are not 
really up to us to decide to tell a doctor what is the safest and what 
is not the safest, or how to go about it.
  Now, maybe we are getting somewhere. I heard my friend ask me about 
what I would want my own daughter to do if she was ever confronted with 
this, and I said I would want her to have the best care. I would want 
her to have a board-certified obstetrician/gynecol-
ogist take care of her in a safe, healthy, legal setting. That is why I 
have offered my amendment. That is why my amendment is pending right 
now because I want us to say once and for all again that Roe v. Wade is 
the law of the land, that if, God forbid, my daughter ever had a 
situation like that, she could go into a hospital, that she would not 
have the law hounding her, and that she could have a board-certified 
obstetrician.
  So maybe we are getting somewhere. Maybe my friend is now going to 
support my amendment.
  Mr. SANTORUM. No, I am not going to support the amendment of the 
Senator, but I would like an opportunity to speak.
  Madam President, how much time is remaining on each side?
  The PRESIDING OFFICER. The Senator from Pennsylvania has 30 minutes 
and 15 seconds. The Senator from Iowa has 23 minutes and 27 seconds.
  Mr. SANTORUM. Madam President, first, I say again that in many of 
these difficult cases, if not all of them, to my knowledge--and I would 
be curious to hear if there is a case I am not aware of where there 
needs to be a separation of the mother from the child. I am not aware 
of any case, and I would certainly be anxious to hear any testimony to 
the contrary where separation necessarily means abortion. Separation 
does not necessarily mean abortion, and there are other ways to protect 
both the health of the mother and the health of the child. As a 
society, I think if that is possible, then that should be our 
preference.
  Let me go back and talk about the overall issue of Roe v. Wade and 
where we have come as a result of that. Roe v. Wade was decided in 
1973. Maybe the biggest problem I have with Roe v. Wade was that 
abortion was a matter that was decided by the people and by its elected 
representatives. It was, as every other issue is in America, decided in 
the public square, decided by this kind of debate.
  I think this is wonderful. I think the people need to hear this. We 
do not get enough debate on the issue of abortion. It has sort of been 
put away in a corner. Why? I would argue this is the great moral issue 
of our time. It parallels very closely the issue of slavery back in the 
early 1800s, and the reason is because it is really the same issue.
  The slavery issue was: Here is the African American, here is the 
black man and woman, and what we said in this country was we could look 
at this person, we could see this person, but under the Constitution it 
was not a person. We said this individual, this human being, was not 
conferred personhood under the Constitution. That is what slavery was 
all about. As a result, that person was property. What all of us knew 
to be a human being became property, and we had to fight a war to 
eventually overturn that.
  Where are we with the issue of abortion? The child in the womb is not 
considered a person under the Constitution. Now, we can see it in a 
sonogram. That is one of the things that makes partial-birth abortion 
such an important debate because the baby can really be seen. One can 
see this is a human being; it is nothing but. But according to the 
Constitution, this child is not a person.
  It is the same debate. It is the same argument. William Wilberforce 
in England, when he fought to overturn the slave trade, put together a 
poster. It was a picture of a black man. Underneath the picture, it 
said: Am I not a man?
  I would simply say, look at this chart and under this picture could 
we not say: Am I not a child?
  According to Roe v. Wade, according to the law of this great land, 
the answer to that question is, emphatically, no, and look what we can 
do to you.
  Why? Because you are property. You are like the slave. You have no 
rights.
  How we have twisted our Constitution, which is based on life and 
liberty. What is first, liberty or life? Think about that. Life, 
liberty, and the pursuit of happiness. Do we think the Framers sort of 
just threw those words together? Do we think they could have said, 
happiness, liberty, life, they sort of played around and said, which 
one of these is the right one? Did they put them in order for any 
reason? We can bet they put them in an order for a reason.
  Can someone have liberty without life? No. There is no way possible, 
if one does not have the right to life, that they can have any liberty.
  Can someone have true happiness without liberty? No. Life is a 
prerequisite to liberty. But what have we done in the case of Roe v. 
Wade? We have taken life and liberty and we have flipped them.
  In Roe v. Wade, the Court put liberty ahead of life, and said the 
rights of a woman, liberty--this is the liberty clause, this is the 
grounds from which Roe v. Wade was derived. Of course, the right to 
abortion is not in the Constitution. But where does it come from? It 
comes from the what clause? The liberty clause.
  So we took liberty and moved it ahead of life. What are the 
consequences of that? Obviously, we know what the consequences of that 
are for the child. What are the consequences of that for all of us? The 
consequences of that for all of us are that now one's freedom to do 
what one wants trumps someone else's right to exist.
  In this case, it is just this little child in the womb. But if we set 
this precedent, which we have, that my right to my liberty trumps 
another's right to life--the Senator from New York talks about the 
slippery slope. Oh, what a slope we are on now. The Senator from New 
York talked about, you did not show the deformed child. Well, there is 
a guy in Princeton, NJ, by the name of Peter Singer who talks just 
about that issue. He talks about the deformed child. And what does he 
say? He says Roe v. Wade has it right. They put liberty in front of 
life, and that is right because some people are not worth having 
around. Yes, that is what he says. Is this guy a kook? Is this guy some 
sort of flake who is out there in the ether? No. He is a professor. Is 
he a professor at XYZ State University at Blackwater, PA? No. He is at 
Princeton University--a ``distinguished'' chair at one of our great 
universities.
  What does he say? He writes: I should think it should be somewhat 
short of one year.
  What does he mean, ``somewhat short of one year''?
  Somewhat short of 1 year after birth that we should be able to--what? 
Kill

[[Page 5909]]

these little deformed children who happen to be born. Why? Well, 
because they are not really useful. Their life doesn't mean much. Our 
liberty means more than their life. Here again, moving life in front of 
liberty. Oh, what a tangled web we weave.
  This is the product of Roe v. Wade. This is the product of the Court 
taking from us who understand ordered rights--that rights are put in 
order for a reason. Our Founders had it right.
  Those who proclaim the virtue of abortion as a right said this would 
be a blessing to our society. They said: This would be a great 
blessing. So many positive things will happen. Divorces will come down. 
Spouse abuse will come down. Infant abuse will come down. Child abuse 
will come down. Abortions, of course, will go up, but the benefit is 
domestic violence will go down, teen pregnancy will go down, 
infanticide will go down, abandoned children will go down. And of 
course, none of them did. None of them did. Quite the contrary. All of 
them have at least doubled since 1973 as a percentage.
  So this nirvana that getting rid of these--because, see, they argue 
that since we are going to get rid of 1.3 million children--25 percent 
of all pregnancies end in abortion--since we are going to get rid of 
all these unwanted stresses in people's lives, problems in people's 
lives, then people will be better off, people will be happier, people 
will be more free; people won't do bad things because they won't have 
this stress that complicates their life.
  But is that the lesson that people learn? No. Sadly, people are much 
smarter than that. They learned from the leaders of our great country 
that the value of life was diminished. And they learned from our great 
country that their personal liberty was more important than your life. 
Their liberty, their rights, trump you. That is what they learned.
  As I mentioned earlier, that is why the two guys ran into Columbine, 
toting their guns and shooting people, screaming, ``I am the law,'' 
because that is what Roe v. Wade taught us. They taught us we can put 
down our neighbor, just like in the early years of this country we 
could put down the black man and woman.
  We are on a very dangerous practice. I know we will celebrate and 
affirm Roe v. Wade. Our colleagues will support it because it is the 
law of the land and it is well accepted. I accept the fact that in this 
body I am a voice in the wilderness. But I will speak. This is not the 
most popular thing to come and talk about. These halls are not filled 
with people who want to speak on this issue. I understand, this is a 
tough one. You make a lot of people mad when you get up and talk about 
abortion because it is personal. I know. It is personal. But we have to 
step back.
  I thank the Senator from Iowa for giving us an opportunity to step 
back and look at what we are doing, look at what we have done, and look 
at what may come of us if we do not turn away and give back to the 
people.
  I was at a briefing the other day, and someone talked about the 
Iraqis and said: We are worried about them transitioning to democracy 
because historically they like being ruled. And I thought to myself: 
Just like Americans on abortion. They like being told what their 
position should be. They like the Court taking it and ruling. They do 
not want to have to think about it. They know they do not like it, but 
they do not want to talk about it, think about it, vote. They want 
someone else ruling for them. It is easier to give someone else your 
rights and let them make decisions for you. It makes your life a lot 
simpler.
  I argue it is not making your life much better. No, what Roe v. Wade 
has done is separate the person, the human being--and there is no 
doubt, from the moment of conception this is a genetically human 
organism. It is human, fully human. Nothing is added. It is fully 
human. And it is, by definition, alive. How do we know? Because the 
definition of life is something that metabolizes, and this clearly is 
metabolizing. It is human life.
  What did Roe v. Wade do? It took away the instantaneous bonding of 
human life and human person under the Constitution. It separated them. 
I repeat this for emphasis. It separated the human person from the 
human being. That precedent is now the law of the land. And you know 
what happens with precedent in this country; it is followed. Today for 
the unborn, tomorrow for--watch out. Watch out.
  I remember in one of the early debates on this bill, I got an e-mail 
from a man from London who said he was sitting there watching the 
debate, hearing people talk about all these people with disabilities 
who needed to be destroyed through partial-birth abortion. Not because 
the mother's health was in danger--because they just were not perfect. 
He said: I am sitting in my wheelchair as a disabled man with spina 
bifida, knowing that they are talking about me. They are talking about 
me.
  Today the child in the womb. Tomorrow?
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HARKIN. How much time remains on our side?
  The PRESIDING OFFICER. The Senator has 23 minutes 27 seconds, and the 
other side has 15 minutes 31 seconds.
  Mr. HARKIN. I yield 10 minutes to the Senator from California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Madam President, it is really very interesting when we 
talk about disabled children that the man offering this amendment to 
reaffirm Roe v. Wade is the champion for the disabled. He has fought 
for the disabled all his life.
  To somehow put out the idea that those who are pro-choice are not for 
the disabled is another terrible thing to say in this Senate. I have 
been in many of these debates over the years, and the comments made by 
some of my colleagues on the other side of this issue--in terms of 
their view toward women, women who want more than anything else to bear 
healthy children and have those children and, yes, even bear them if 
they are disabled--are extremely disturbing. The kind of comments we 
have heard about Supreme Court Justices border on, worse than 
inflammatory, dangerous comments. The comments we have heard about 
doctors and health professionals are very disturbing to me.
  Let me reiterate that the AMA opposes this bill--my colleague keeps 
talking about the AMA--and they oppose it because it imposes criminal 
penalties on physicians who they say perform these procedures. So they 
are not in agreement with this bill at all. They find that S. 3 is 
something they must oppose.
  The Senator from Pennsylvania keeps asking for specific cases of 
women who were told that this procedure was necessary as the safest 
procedure to save their health and their life. He keeps saying no one 
has come up with these.
  I ask unanimous consent to have printed in the Record the full text 
of 10 statements by 10 women who so testified.
  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 cord. 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 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 my

[[Page 5910]]

     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.
       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.
                                  ____


                   Testimony of Coreen Costello--1996

       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 this 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 her 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 know 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 that 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 
     Caesarean section, but experts at Cedars-Sinai Hospital felt 
     that the risks to my health and possibly to my life were too 
     great. A Caesarean 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 Caesarean 
     section. In my case, even if a Caesarean 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 being 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 this 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 can 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.
                                  ____


                 Testimony of Claudia Crown Ades--1999

       My name is Claudia Crown Ades. I live in Santa Monica, 
     California. I have been married to Richard Ades for five 
     joyous years.
       Three years ago, when I was 26 weeks into what seemed a 
     perfect pregnancy, I made the decision along with my doctor 
     not to have an amniocentesis. At 33, there seemed no need. 
     Then one day, feeling anxious and worried about declining 
     that test, I went to my doctor. There was no basis for my 
     anxiety; it was just an instinct. However, to set my mind at 
     ease, I was sent to a radiologist, an ultrasound expert. 
     ``Don't worry,'' my doctor told me. ``He can see a vein out 
     of place.'' I was never expecting what came next.
       The radiologist spent far too long conducting what was 
     supposed to be a routine examination of a healthy baby. He 
     told us that he wanted to review the images and that he would 
     call us. The next day, when we returned from Rosh Hashana 
     services, there was a message on the answering machine. ``I'd 
     like you to come back in so that my partner can take a look 
     at your ultrasound. Please don't worry. I don't think it's 
     anything,'' he said. You can't tell a pregnant woman not to 
     worry.

[[Page 5911]]

       His partner, who wrote the authoritative book on 
     ultrasound, immediately determined that there was a sac of 
     fluid in my baby's brain. He called it a Dandy Walker 
     Syndrome. He also told us that many people walk around with 
     Dandy Walker Syndrome without any impairment. On the other 
     hand, it could be more serious and he referred us to a 
     perinatologist for more expert opinion. The doctor put his 
     hand on Richard's shoulder and told him not to lose hope and 
     that everything could be ok. You don't console someone if 
     nothing is wrong.
       Because of his suspicions, which we were unaware of at the 
     time, the perinatologist rearranged her schedule to see me 
     the next day resulting in an agonizing night of emotional 
     torture.
       The next day, we went into the perinatologist's office, 
     apprehensive about what we might discover. She prepped me for 
     an ultrasound, and within thirty seconds, the perinatologist 
     said, ``I concur with your doctor.'' Concur with what? At 
     this point we had no idea.
       This was when our worst fears were realized. At that moment 
     we learned that our son's Dandy Walker Syndrome was more 
     serious than we had known. In addition to a fluid filled 
     nonfunctional brain, he had a malformed heart with a large 
     hole between the chambers that was preventing normal blood 
     flow. He had also developed an extremely large cyst filled 
     with intestinal matter, and hyperteloric eyes which was 
     another indication of severe brain damage. We later found out 
     that these symptoms added up to Trisomy 13, a fatal 
     chromosomal disorder.
       With each new bit of information, the tears flowed harder. 
     Richard was holding me. I thought we were the only parents in 
     the world who had ever heard such devastating news about 
     their child. What were we going to do? We loved this baby. We 
     wanted this baby desperately. This was our son. We were 
     preparing our family and our world for him. And now, we had 
     to prepare for a tragedy. Away went the baby name books. Away 
     went the shower invitations. Away went the first birthday 
     party, the baseball games, the bar mitzvah. Away went our 
     dream.
       Along with the tears, the questions flowed. Could a 
     cardiologist fix our son's heart? Could a neurosurgeon repair 
     his brain? Could an eye surgeon help him to see? Could this 
     baby survive? Was there anything, anything at all, that could 
     be done? The answers were emphatically no. It was our worse 
     nightmare and it was real. Even if my son survived the 
     pregnancy, he had no chance of life. Every day meant pain and 
     torture for him. As his mother I could not, in good 
     conscience, allow my child suffer.
       By this time, a geneticist had joined us to discuss our 
     options. We went through them all. I could carry to term. I 
     could have a cesarean. I could induce pre-mature labor in the 
     maternity ward. All of these posed risks for me. The doctors 
     choose a procedure that would be the most appropriate for me, 
     my baby, and for my future children.
       The entire process took three days. No scissors were 
     stabbed in the back of my baby's head; his brains were not 
     sucked out and his skull was not crushed.
       Ironically, the final day of the procedure was Yom Kippur, 
     the holiest day of the Jewish year. On Yom Kippur, we are 
     asked to mourn those who have passed and pray to God to 
     inscribe us into the Book of Life. I prayed more than one 
     person can pray. I was praying for all of us.
       Although I never imagined I would be faced with such a 
     difficult and painful decision I can honestly say that for 
     many reasons, I feel very blessed. First, I was able to find 
     out when I did. Second, I had access to the finest medical 
     care in the world. And third, I live in a place where my 
     rights as an individual have not been compromised.
       Though I hope and pray that no one has to go through what 
     my husband and I have, there are people who will. It can 
     happen to anyone--to you, your wife, your sister, your 
     daughter, your friends. All women should have the protection, 
     the guidance and the access that modern medicine allows.
                                  ____


                               Erica Fox

       In October of 1995 I was pregnant with my first child. I 
     had had amnio and that all came back fine. But at 23 weeks I 
     had another ultrasound, which found that the fetus was 
     suffering from Intra Uterine Fetal Growth Retardation. 
     Further ultrasounds showed that the heart and other organs 
     were very stressed. Two of the top neo-natal specialists told 
     me that the fetus was in the process of dying and that if it 
     made it to term, it would live a short and very painful life. 
     I made the only decision that I, as a mother, could make. I 
     chose to have an abortion. For the sake of my fetus and my 
     health. I was sent to the best clinic in Los Angeles. And 
     over the course of two days the intact D&E was performed. The 
     doctor and nurses were the most compassionate people I have 
     known. But it was a terrible time. And it was a time made 
     more terrible when a few days later, the United States House 
     of Representatives voted to ban the procedure. I watched with 
     horror the lies about scissors stabbing the Gerber-like baby 
     in the neck. The pain endured. The suffering. I knew the 
     truth was different. The fetus I was carrying was not a 
     Gerber baby. That it was not viable. That the sedatives used 
     on me worked on the fetus. That the fetus was most likely 
     dead long before it was ever taken from my body. I knew that 
     the procedure had saved my reproductive system so that today 
     I have a wonderful five-year-old son. Here he is. A boy so 
     full of life and happiness.
                                  ____


                           Tammy Watts--1995

       We found out I was pregnant on October 10, 1994. It was a 
     great day in so many ways, because on the same day, my 
     nephew, Tanner James was born. My husband and I ran through 
     the whole variety of emotion--scared, happy, excited, the 
     whole thing. We immediately started making our plans--we 
     talked about names, what kind of baby's room we wanted, would 
     it be a boy or girl. We told everyone we knew . . . and I was 
     only three weeks pregnant!
       It wasn't an easy pregnancy. Almost as soon as my pregnancy 
     was confirmed, I started getting really sick. I had severe 
     sickness, and so I took some time off work to get through 
     that stage. As the pregnancy progressed, I had some spotting 
     which is common, but my doctor said to take disability leave 
     from work and take things a month at a time. During my leave, 
     I had a chance to spend a lot of time with my newborn nephew 
     and his mom, my sister-in-law. I watched him grow day by day, 
     sharing all the news with my husband. We made our plans, 
     excited by watching Tanner grow, thinking ``this is what our 
     baby's going to be like.''
       Then, I had more trouble in January. My husband and I had 
     gone out to dinner, came back & were watching TV, when I 
     started having contractions. They lasted for about half an 
     hour and they stopped. But then the doctor told me I should 
     stay out of work for the rest of my pregnancy. I was very 
     disappointed that I couldn't share my pregnancy with the 
     people at work, let them watch me grow. But our excitement 
     just kept growing, and we made our normal plans, everything 
     that prospective parents do.
       I had had a couple of earlier ultrasounds which turned out 
     fine, and I took the alphafetoprotein test, which is supposed 
     to show fetal anomalies--anything like what we later found 
     out we had. It came back clean.
       In March I went in for a routine 7-month ultrasound. They 
     were saying this looks good, this looks good, then suddenly 
     they got really quiet. The doctor said ``This is something I 
     didn't expect to see.'' My heart just dropped.
       He said he wasn't sure what it was, and after about an hour 
     solid of ultrasound, he and another doctor decided to send me 
     to a perinatologist. That was also when they told us it was a 
     girl. They said, ``Don't worry, it's probably nothing, it 
     could even be the machines.''
       We got home and were a little bit frightened, so we called 
     some family members . My husband's parents were away and 
     wanted to come home, but we told them to wait. The next day, 
     the perinatologist did ultrasound for about two hours, and he 
     said he thought the ultrasound showed a condition in which 
     the intestines grow outside the body, something that's easily 
     corrected with surgery after the birth. But just to make 
     sure, he made an appointment for me in San Francisco with a 
     specialist.
       After another intense ultrasound with the specialist, the 
     doctors met with us, along with genetic counselor. They 
     absolutely did not beat around the bush. They told me, ``She 
     has no eyes, six fingers and six toes and enlarged kidneys 
     which are already failing. The mass on the outside of her 
     stomach involves her bowel and bladder, and her heart & other 
     major organs are also affected.'' This is part of a syndrome 
     called Trisomy-13, where on the 13th gene there's an extra 
     chromosome. They told me, ``Almost everything in life if 
     you've got more of it, it's great. Except for this. This is 
     one of the most devastating syndromes, and your child will 
     not live.''
       My mother-in-law just collapsed to her knees. What do you 
     do? What do you say? I remember just looking out the window. 
     . . . I couldn't look at anybody. My mother-in-law asked, 
     ``Do we go on, does she have to go on?'' The doctor said no, 
     that there was a place in Los Angeles that could help if we 
     could not cope with carrying the pregnancy to term. The 
     genetic counselor explained exactly how the procedure would 
     be done, if we chose to end the pregnancy, and we made an 
     appointment for the next day.
       I had a choice. I could have carried this pregnancy to 
     term, knowing everything that was wrong. I could have gone on 
     for two more months, doing everything that an expectant 
     mother does, but knowing my baby was going to die, and would 
     probably suffer a great deal before dying. My husband and I 
     would have had to endure that knowledge, and watch that 
     suffering. We could never have survived that, and so we made 
     the choice together, my husband and I, to terminate this 
     pregnancy.
       We came home, packed, and called the rest of our families. 
     At this point there wasn't a person in the world who didn't 
     know how excited we were about the baby. My sister-in-law and 
     best friend divided up a phone book and called everyone. . . 
     . I didn't want to have to tell anyone. I just wanted it to 
     be over with.

[[Page 5912]]

       On Thursday morning we started the procedure, and it was 
     over about six pm Friday night. The doctor, nurses and 
     counselors were absolutely wonderful. While I was going 
     through the most horrible experience of my life, they had 
     more compassion than I've ever felt from anybody. We had 
     wanted this baby so much. We named her Mackenzie. Just 
     because we had to end the pregnancy didn't mean we didn't 
     want to say goodbye. Thanks to the type of procedure Dr. 
     McMahon uses in terminating these pregnancies, we got to hold 
     her and be with her and have pictures for a couple of hours, 
     which was wonderful and heartbreaking all at once. They had 
     wrapped her up in a blanket. We spent some time with her and 
     said our good-byes and went back to the hotel. Before we went 
     home, I had a checkup with Dr. McMahon, and everything was 
     fine. He said, ``I'm going to tell you two things: first, I 
     never want to see you again. I mean that in a good way. And 
     second, my job isn't done with you yet until I get the news 
     that you've had a healthy baby.'' He gave me hope that this 
     tragedy wasn't the end, that we would have children just as 
     we'd planned.
       I remember getting on the plane, and as soon as it took off 
     we were crying because we were leaving our child behind. The 
     really hard part started when I got home. I had to go through 
     my milk coming in, everything you go through if you have a 
     child. I don't know how to explain the heartache. There are 
     no words. There's nothing I can tell you, express or show you 
     that would allow you to feel what I feel. Think about the 
     worst thing that's happened to you in your life and multiply 
     it times a million . . . maybe then you might be close. I 
     couldn't deal with anybody, couldn't see anybody--especially 
     my nephews. It was too heartbreaking.
       Eventually I came around to being able to see and talk to 
     people. I am a whole new person, a whole different person. 
     Things that used to be important now seem silly. My family 
     and my friends are everything to me. My belief in God has 
     strengthened. I never blamed God for this, I'm a good 
     Christian woman . . . however I did question. Through a lot 
     of prayer and talk with my pastor, I've come to realize that 
     everything happens for a reason, and Mackenzie's life had 
     meaning. I knew it would come to pass someday that I would 
     find out why it happened, and I think it's for this reason: 
     I'm supposed to be here to talk to you, and say, ``You can't 
     take this away from women and families. You can't. It's so 
     important that we be able to make these decisions, because 
     we're the only ones who can.''
       We made another painful decision shortly after the 
     abortion. Dr. McMahon called and said, ``This will be very 
     difficult, but I have to ask you this. Given the anomalies 
     she had, so vast and different, there is a program at Cedars-
     Sinai, which is trying to find out the causes for why this 
     happens. They would like to accept her into this program.'' I 
     said, ``I know what that means. Autopsies and the whole realm 
     of testing.'' But we decided, how can we not do this? If I 
     can keep one family from going through what we went through, 
     it would make her life have some meaning. So they're doing 
     the testing now. And because Dr. McMahon does the procedure 
     the way he does, it made the testing possible.
       I can tell you one thing--after our experience, I know more 
     than ever that there is no way to judge what someone else is 
     going through. Until you've walked a mile in my shoes, don't 
     pretend to know what this was like for me . . . and I don't 
     pretend to know what someone else is going through. 
     Everybody's got a reason for what they have to do. Nobody 
     should be forced into having to make the wrong decisions. 
     That's what you'll be doing if you pass this legislation. Let 
     doctors be free to treat their patients in the way they think 
     is best, like my doctor did for me.
       I understand that this legislation would make doctors like 
     mine criminals. My doctor was the furthest thing from a 
     criminal in the world. Many times I've called him my angel . 
     . . they say there are angels walking around the world 
     protecting us, and I know he was one. If I wasn't led to Dr. 
     McMahon, I don't know how I would have lived through this. I 
     can't imagine where we'd be without my doctor. He saved my 
     family, my mental stability, and my life. I couldn't have 
     made it through this without him, and I know there are a 
     great many women out there who feel the same way.
       I've still got my baby's room, and her memory cards from 
     her memorial service, her foot and handprints. Those are good 
     things, good memories . . . but she's gone. The best thing 
     that I can do for her is to continue this fight. I know she 
     would want me to. So, for her, I respectfully ask you to 
     reject this legislation.
                                  ____


                   Teresa M. Tauchi--October 11, 2000

       I consider Julia Kiyono to be our first child. She was born 
     on Thursday, April 20, 2000, but did not live long enough to 
     receive a social security number. I have never seen her birth 
     or death certificate. Outside of the hospital in which she 
     was born and beyond our circle of family and friends, she 
     never existed. But she will always be our first child.
       The story of my pregnancy with Julia is like that of so 
     many other women who receive poor fetal diagnoses. Shock. 
     Denial. Bargaining with God. Hope. Anger. Grief. Acceptance. 
     Moving forward. It has been the longest six months of my 
     life.
       At 23 weeks gestation, our baby was diagnosed with a lethal 
     form of skeletal dysplasia, a bone development disorder more 
     commonly known as dwarfism. The length of her femur and 
     humerus were five-to-six weeks behind in growth. Her thorax 
     was also measuring abnormally small--her heart nearly filled 
     her chest cavity and her lungs had no room to develop. Two 
     separate perinatalogists predicted respiratory failure 
     shortly after birth. For our baby, survival outside of the 
     womb was impossible.
       We received the news on a Friday. Sam and I passed the 
     entire weekend by ourselves, canceling all social engagements 
     and deflecting the inquiries of our friends. We weren't 
     prepared to tell anyone other than our immediate family. We 
     wouldn't have known what to say.
       Instead, we spent the weekend installing a gravel patio in 
     our backyard. On that same Friday, several tons of sand, 
     pebble and cobblestone had been dropped off on our driveway, 
     a delivery that was too late to call off. It seems like a 
     strange task to undertake when your world is falling apart, 
     yet we consumed ourselves with the physical labor of moving 
     rocks, and shaping and smoothing our garden. My six-month 
     pregnancy hardly got in the way. The physical exercise seemed 
     to encourage an already-active baby to turn even more 
     somersaults and thrash more karate kicks inside of me. She 
     felt so alive to me and I cherished every moment.
       In between the loading and unloading of wheelbarrows full 
     of Pamy pebbles, we took turns crying. We leaned on each 
     other, held each other, and told ourselves that we would 
     somehow get through this. We asked each other why this was 
     happening. We talked about the decisions ahead of us and 
     cried some more. We read through the various pamphlets we 
     received from kindly genetic counselors and wept again. By 
     the end of the weekend we had hardly slept and were 
     physically exhausted, emotionally drained. And we knew that 
     we would terminate our pregnancy.
       It was not a decision we took lightly.
       Letting go of this baby seemed, at time, unfathomable. Sam 
     and I had been married a little over a year when we conceived 
     her, and as our first child, this baby was the embodiment of 
     our future, of our new life as a family. Yet she inhabited a 
     body that could not sustain life. We chose to release her 
     soul from that body that would only bring her a painful 
     struggle for breath. Moreover, we wanted her to feel nothing 
     but our happiness and our love--a connection that began from 
     the moment of conception. We didn't wish for her to continue 
     inside of a mother's body consumed by so much grief and 
     anguish, to hear a father's voice filled with such sadness 
     and heartache.
       I checked into the hospital on Monday evening and was 
     relieved to have my own OB admit me. The nurses were 
     extremely kind and ushered us to a private room in a quiet 
     and empty corner of the labor and delivery ward, away from 
     those mothers and fathers who could feel joy in the 
     anticipation of their arrivals.
       The induction of labor took two and a half days. Our baby 
     was delivered at 12:35 p.m. on Thursday, April 20, 2000. It 
     wasn't until that moment that we learned we had a little 
     girl--Sam had insisted, through everything, that we wait 
     until the birth to find out the sex of the baby. With the 
     assistance of the hospital chaplain and my sister as our 
     witness, we named her Julia Kiyono. Julia was the first 
     girl's name we had ever agreed on, long before we knew 
     anything could be wrong with the pregnancy. Kiyono was in 
     honor of my late great-aunt, whom I grew up with as my 
     grandmother and who had lost her only child, a four-year-old 
     boy, in the internment camps during World War II. It wasn't 
     until that moment, when I held our baby in my arms, that I 
     finally understood the heartbreak that my grandmother had 
     carried with her throughout her 99 years.
       We kept Julia with us for the short time that she was 
     alive. We cradled her and kissed her. We told her how happy 
     we were to finally meet her and how much we loved her. And 
     when her heart stopped beating two hours later, we whispered 
     goodbye.
       Today, we call the lush flowering vines, the budding fruit 
     trees, and the fragrant sages that inhabit our backyard and 
     surround the pools of gravel Julia's Garden. We have also 
     planted a baby rose bush in her memory. It produces clusters 
     of bright pink flowers that fade to white as they bloom. We 
     have other reminders--her framed footprints that hang on our 
     bedroom wall, a memory box that holds her receiving blanket, 
     cards and photographs--of Julia's eternal presence in our 
     lives.
       Unfortunately, the legacy of prenatal testing, lethal 
     diagnoses and termination--the memories we want to move 
     beyond--too will endure. We learned shortly after Julia's 
     death that her specific type of skeletal dysplasia was 
     identified as Short-Rib Polydactyly Syndrome, a lethal 
     condition that is inherited in an autosomal recessive manner. 
     This means that my husband and I are both carriers of a 
     recessive gene mutation and have a 25% chance of recurrence 
     with each subsequent pregnancy. Through

[[Page 5913]]

     anecdotal evidence and my own research on autosomal recessive 
     disorders, I have learned that carrier parents often have 
     multiple affected pregnancies.
       While there are plenty of reasons to believe that we will 
     have a healthy child, I am a firm pragmatist. I know that it 
     can happen to us again and that we will need to revisit the 
     same heartbreaking decision every time--a choice that 
     rightfully belongs to us and us alone.
                                  ____


                        Testimony of Kim Koster

       My name is Kim Koster. My husband, Dr. Barrett Koster, and 
     I have been married for more than seven years. We have known 
     since before we were married that we wanted very much to have 
     children.
       To our joy, in November of 1996 we discovered that we were 
     expecting. The news was a thrill, to us and to our family and 
     friends. We were showered with gifts and hand-me-downs, new 
     toys, books and love. Barry's family gave us a 19th century 
     cradle, which had rocked his family to sleep since before his 
     grandmother Sophie was born more than 100 years ago.
       Our first ultrasound was scheduled a little more than four 
     months into the pregnancy. On Thursday, February 20, we saw 
     our baby and spent five short minutes rejoicing in the new 
     life, and then the blow fell. The radiologist informed us 
     that he had ``significant concerns'' about the size of the 
     baby's head. His diagnosis was the fatal neural tube defect 
     known as anencephaly, or the lack of a brain. After four 
     months of excitement and joy, our world came crashing down 
     around us.
       Once the diagnosis was made, there was no further medical 
     treatment available for me in our hometown, and we were 
     referred to the University of Iowa Hospitals and Clinics in 
     Iowa City. Our first OB appointment there was set for Monday 
     morning. My husband and I spend that long weekend, the 
     longest of our lives, doing research on anencephaly, talking 
     with family and friends, and hearing personal stories about 
     the fate of anencephalic babies.
       In Iowa City, a genetics OB specialist examined a new 
     ultrasound and immediately confirmed the diagnosis. An alpha-
     feto-protein blood test and amniotic fluid sample only drove 
     the truth harder home. Our fetus had only a rudimentary 
     brain. There were blood vessels, which enabled the heart to 
     beat, and ganglion, which enabled basic motor function. There 
     was no cerebellum and no cerebral cortex. There was no skull 
     above the eyes.
       I had been preparing for pregnancy for more than a year 
     with diet, exercise and prenatal vitamins, including the dose 
     of folic acid recommended to prevent neural tube defects. Yet 
     we still lost our child to one of the most severe and lethal 
     birth defects known. Our baby had no brain--would never hear 
     the Mozart and Bach I played for it every day on our great-
     grandmother's piano, would never look up into our eyes or 
     snuggle close to our hearts, would never even have an 
     awareness of its own life.
       On Tuesday, February 25, 1997, my husband and I chose to 
     end my pregnancy with a common abortion procedure known as 
     ``D&E.'' As difficult as it was, I literally thank God that I 
     had that option. As long as there are families who face the 
     devastating diagnosis we received, abortion must remain a 
     safe and legal alternative.
       In 1998, Barry and I discovered to our delight that I was 
     pregnant again. Although we were overjoyed, our happiness was 
     tempered by the knowledge that we had a 1-in-25 chance of a 
     second anencephalic pregnancy. This time, we asked our loved 
     ones to hold off on the baby gifts, we played no Bach, and 
     every week was a mix of excitement and unavoidable worry. And 
     on July 17, 1998, an ultrasound revealed the worst. We had a 
     second anencephalic pregnancy--a second daughter lost to this 
     lethal birth defect.
       Fortunately for my medical care, the so-called ``partial 
     birth abortion'' bans have been vetoed by President Clinton, 
     and my doctors were able to provide me with a safe, 
     compassionate procedure that brought this second tragic 
     pregnancy to an end. And thanks to those doctors and their 
     ability to give me that care, my recovery has been rapid--
     enabling Barry and I to plan to try again.
       But if this bill becomes law, we would not be able to do 
     so. For the chances of our having a third anencephalic 
     pregnancy are all the way up to 1 in 4, and this bill would 
     ban any procedures that would help us. It would force me to 
     carry another doomed child through all nine months. That idea 
     is far more horrifying than all the unreal anti-choice 
     rhetoric that can be manufactured, for the reality is that 
     this is a terrible law, a grievous interference between 
     doctor and patient, and would only compound the tragedy and 
     heartache faced by families like us.
       Please protect the health of women and families like mine, 
     and reject S. 1692.
                                  ____


   Testimony of Miriam A. Kleiman, Voters for Choice--March 10, 2003

       My name is Miriam Kleiman. I am 36 years old. I have been 
     happily married to my husband Jason Steinbaum for almost six 
     years. We have a child named Zachary who is 19 months old. I 
     am now pregnant again and am unfortunately unable to be with 
     you today.
       My pregnancy is currently in the 29th week. In July 2000, I 
     was pregnant with another much-wanted child. My husband and I 
     had been married three years and were excited and ready to be 
     parents for the first time. We had selected furniture, car 
     seats, and other items to help us keep our baby comfortable, 
     warm, protected, and loved. As with many expectant mothers, I 
     was scheduled for a regular obstetrical appointment. At that 
     time, I assumed that this sonogram would be just another 
     joyous look at the baby. I insisted that my husband join me 
     for the appointment to share in the excitement and happiness 
     of seeing our baby.
       The sonogram technician, however, immediately detected 
     severe problems. The OB was called in at once to tell us that 
     the condition was extremely grave. We were transformed from 
     happy, expectant parents to devastated, panicked people in 
     immediate need of advice and options. We were rushed to a 
     variety of hospitals where I was examined by several doctors, 
     including a perinatologist, neonatologist, and radiologist. 
     All told us that the baby had major brain abnormalities, 
     including severe hydrocephalus and a malformed vein of galen. 
     In other words, our precious baby boy would die at some point 
     in utero or shortly after birth. Our world was shattered, and 
     we needed to find a way to pick up the pieces.
       After our consultations with these specialists, it was 
     clear that there was no medical miracle to correct the baby's 
     condition. Worse still, our doctors informed us that abortion 
     was not an option because the pregnancy was past the legal 
     limit for termination in most states. They said I had no 
     choice but to wait and deliver our baby at term as if the 
     pregnancy were proceeding normally. Third trimester 
     abortions, they explained, are just not done. Desperate, we 
     begged the head of our obstetric practice for any other 
     options. He calmly explained that there were none--that I had 
     no choice but to carry the baby more than two more months 
     until delivery at full term unless the baby died in utero 
     before that. We directly asked him about the possibility of 
     termination. Our doctor glared at us and responded 
     succinctly: ``We call that murder.''
       We grasped for second, third and fourth opinions as we went 
     from hospital to hospital. The radiologist we visited 
     repeated the grim prognosis: The baby would die in utero or 
     within days of birth. My husband turned to him and asked: 
     ``if this were your wife, what would you do?'' He responded: 
     ``I would find any way possible to terminate the pregnancy.''
       If we did nothing, we would be on a death watch, merely 
     waiting for our baby to die. This was totally unacceptable to 
     me or my husband. Personally, I was prepared to go anywhere, 
     at any expense to end our anguish and let us move on with our 
     lives. We loved this baby boy too much and were too attached 
     to him to suffer the misery of waking up every morning 
     awaiting his impending death.
       We made the dreaded phone calls to inform our parents that 
     their long-awaited grandchild would not survive. Because 
     Jason's father and sister are physicians with a network of 
     colleagues, we learned that we had actually received 
     incorrect information. There was, in fact, an option.
       For the record, my abortion was performed in August 2000--
     my abortion was NOT a so-called ``partial-birth procedure.'' 
     After the delivery, my husband and I, along with our mothers, 
     held our intact baby, said a blessing, and bid him goodbye. 
     He is buried at a cemetery in Northern Virginia.
       We feel a strong obligation to tell our story to inform 
     others of why it is necessary to preserve the right to 
     choose. In doing so, we also feel we are remembering the baby 
     we lost, but still hold dearly in our hearts. It is hard to 
     stress strongly enough that we did NOT ``change our minds'' 
     about being parents. This was a desperately wanted child, one 
     who had been planned for, dreamed of, read and sung to, and 
     long-hoped for. The hardest part for us to convey is how much 
     we did then and continue to love our son, how we remember him 
     and mourn his loss, but how we made a decision that we 
     thought would be more humane. Even in retrospect, two years 
     later, we know we made the right choice.
       This week, the Senate will consider legislation to end 
     abortions. This would effectively eliminate all options for 
     others like us, who have desperately-wanted pregnancies but 
     whose dreams turn to nightmares with news of devastating 
     medical conditions. If this legislation passes, it would end 
     the important work of the very place that helped us through 
     the worst time of our lives.
       It is my hope that someday in the future when my doctor and 
     his staff face the harsh rhetoric from the so-called ``right 
     to life'' movement or hear about ill-advised congressional 
     restrictions on a woman's right to choose, they will not see 
     the anger of the anti-choice activists, but will envision 
     instead of face of our healthy son whose picture adorns their 
     wall and will know that what they did for my family--and so 
     many others--was right and helped us reach this day.


[[Page 5914]]

  Mrs. BOXER. I am going to just read a paragraph out of each of their 
stories. The first is Viki Wilson, who writes:

       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.

  Coreen Costello writes movingly. All of these are so moving that I 
would say if every American could read these, they would know that what 
we are about to do is wrong because it makes no health exception. She 
says:

       Losing our daughter was the hardest thing we have 
     experienced. It has been difficult [to talk about 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 needs this procedure. But 
     until [then] . . . women must have access to this important 
     medical option.

  Claudia Crown Ades, at the end of her beautiful statement, writes:

       Though I hope and pray that no one has to go through what 
     my husband and I have, there are people who will. It can 
     happen to anyone--to you, your wife, your sister, your 
     daughter, your friends. All women should have the protection, 
     the guidance and the access that modern medicine allows.

  All of these women were told by their physician that the safest 
procedure is the one that the Senator is going to outlaw here, without 
any exception.
  Then there is Vikki Stella. She is a diabetic. She was told she 
absolutely needed this. We went through her story.
  Then there are a number for whom I do not have photographs. Audrey 
Eisen--she says: ``Along with my sadness came a realization that if 
such legislation passed,'' tragedy would happen to ``those women who 
come after me.'' Outlawing these procedures, ``I don't know how these 
women will endure; I don't know how I would have endured.''
  Erica Fox said:

       This procedure is not about murder. It's about finding way 
     to go on. In the end, it's about life. A good life. A healthy 
     life. The life I see every day shining at me in the eyes of 
     my son.

  Tammy Watts:

       I understand the Senate is considering legislation that 
     would ban the kind of surgery that I just had. . . .

  She goes on to talk about this terrible decision. She begs us not to 
outlaw this procedure. She says:

       I can't imagine where I would have been without [my doctor 
     who performed this procedure.] He saved my family. . . . [He 
     saved] my life. I couldn't have made it through this without 
     him, and I know there are a great many women out there who 
     feel the same way.

  Theresa Tauchi writes us on October 11, 2000:

       I know that it can happen to us again and that we will need 
     to revisit the same heartbreaking decision every time--a 
     choice that rightfully belongs to us and to us alone.

  Kim Koster wrote to us. She said:

       The reality is that this is a terrible law [this S. 3], a 
     grievous interference between doctor and patient, and would 
     only compound the tragedy and the heartache faced by families 
     like us. Please protect [our] . . . families.

  Miriam Kleiman; this is the last one I have.

       It is my hope that someday in the future when my doctor and 
     his staff face the harsh rhetoric from the so-called ``right 
     to life'' movement . . . they will not see the anger of the 
     anti-choice activists, but will envision instead the face of 
     our healthy son whose picture adorns their wall and will know 
     that what they did for my family--and so many others--was 
     right and they helped us reach this day.

  The reason Senator Harkin's amendment is so important is that under 
Roe v. Wade, the right to choose is guaranteed to a woman in the 
beginning of a pregnancy, the first few months. And after that we can 
restrict, but always with an exception for the life and health of the 
mother. That is Roe.
  Let me tell you why it was important that that decision be made. 
Because before Roe, 5,000 women a year died from back-alley illegal 
abortions. I don't hear anything about these women. It chokes me up.
  Women had to go and have back-alley abortions in other places--not a 
clean hospital, not a State-licensed facility, no practitioner who knew 
what he or she was doing. Money was slipped across the table, and 5,000 
women a year died. That is why this vote is so important. We must not 
go back. We cannot go back to those dark days before Roe.
  Mr. HARKIN. Will the Senator yield for a question?
  Mrs. BOXER. Yes, I yield.
  Mr. HARKIN. I thank the Senator for her stalwart support for all the 
years I have known her, for the principles and the law of Roe v. Wade, 
to ensure that the women of America have the right to choose. I thank 
her for her stalwart support, and I thank her for her comments this 
afternoon on behalf of this amendment I have offered.
  I ask the Senator this question. We heard from our friend from 
Pennsylvania about certain polls that were taken about a certain 
procedure and this and that. But this amendment is about Roe v. Wade. 
Is the Senator familiar with polls taken in this country from women 
about whether or not they would support keeping Roe v. Wade or 
overturning Roe v. Wade? Is the Senator familiar with some of those 
polls?
  Mrs. BOXER. I haven't seen any recent polls. I wonder if my friend 
could inform me. I assume overwhelmingly the people of this country 
support Roe because it is a moderate decision, a moderate mainstream 
decision.
  Mr. HARKIN. That is exactly right. I say again to the Senator, when 
it is defined to people, both men and women, what Roe v. Wade really 
does in terms of the first 3 months and then after that what the State 
can do, but with exceptions for life and health of the mother, as the 
Senator so rightfully pointed out, the overwhelming majority of the 
American people say yes, that ought to inure to the individual and not 
to the Government.
  Mrs. BOXER. Absolutely. I think people are horrified at the thought 
that a Senator would make such a personal, private decision. Our 
colleague from Pennsylvania wants to see Roe v. Wade overturned, and 
that is exactly what would happen. Government would be put in the 
middle of the lives, the private lives, of the people of this country. 
The people would no longer be trusted to make these decisions.
  Mr. HARKIN. I further ask the Senator, would she concur in this view, 
that perhaps what this is all about is really not about a procedure but 
it really is about fundamentally getting at Roe v. Wade? I say that to 
my friend from California because 4 years ago when this came up, this 
Senator along with the Senator from California offered the same 
amendment. It said that Roe v. Wade--we recognize it as the law of the 
land and it should not be overturned.
  The PRESIDING OFFICER. The Senator has used 10 minutes.
  Mr. HARKIN. I yield another 5 minutes to the Senator from California.
  Is the Senator familiar with the outcome of that vote? That vote at 
that time--I remember it precisely--was 51 to 47. Two people who are 
not here had announced they were opposed to it, so it was 51 to 49. By 
2 votes, the Senate--49 Senators said Roe v. Wade should be overturned. 
That is how close we are here. That is why the people of this country 
ought to recognize that is what this debate is about--getting at Roe v. 
Wade; nothing more, nothing less.
  I thank the Senator.
  Mrs. BOXER. I say to my friend, he is absolutely right. Because there 
is no health exception in S. 3, it is a complete reversal from Roe.
  What is shocking is my colleagues on the other side won't even make a 
health exception that was narrowly drawn by Senator Durbin. They 
couldn't even go that far. We all know what could happen to a woman if 
she does not have this safe procedure. Doctors are telling us. We put 
those statements in writing. They could have a hemorrhage, their uterus 
could rupture, they could have blood clots, embolism, stroke, damage to 
nearby organs, and paralysis. Yet S. 3 comes to us without a health 
exception.
  I say to my friend, the rest of the time is his. I have concluded my 
remarks. I am very proud to stand with

[[Page 5915]]

him. I think it will be a close vote, but I am hoping a winning vote, 
so the message can go out from here that Roe v. Wade, which balanced 
all the interests--the family interests, the interests of the fetus, 
and the interests of the mother, which said that previability a woman 
has a right to choose, she will make that decision with her God and her 
doctor and her loved ones--that should stand. Certainly later in the 
pregnancy there can, in fact, be restrictions, and always exceptions 
for the life and health of the woman.
  I thank my colleague for again offering this amendment. I think it is 
very important. I hope people of the country will watch the vote and 
will think about the ramifications.
  I yield the floor. Senator Harkin retains the balance of time.
  Mr. SANTORUM. Madam President, 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 and my colleague on the other side of the aisle for this 
most spirited debate.
  We are finally here debating the most difficult and contentious 
social issue of our day. This is one of those elephants in the living 
room that we in the country across America have been going around 
saying is not there; not wanting to focus on it; not wanting to 
confront it; but it is there. This is it, the issue of Roe v. Wade.
  I was listening to colleagues, thinking of Mose's admonition: 
``Choose ye this day life or death.'' Which will it be? We are finally 
having the debate, Roe v. Wade.
  I would like to remind colleagues. I read it again about 3 months 
ago. It is about federalizing State laws so we are clear on this. It is 
a lengthy opinion where they said we are going to take all of these 
State laws in a patchwork regarding allowing abortions, or not allowing 
it, and we are going to federalize it. We are going to discover a right 
to privacy and say this is built within the overall thinking of the 
Constitution, the original Framers. We are going to say there is a 
right to privacy that applies to reproductive health. We are going to 
take the State laws of Kansas, California, Iowa, the Pennsylvania and 
North Carolina law, we are going to take all of those laws, throw them 
all out, and say this is the law of the land. We are going to say we 
found it to be constitutional. There are a lot of constitutional 
scholars who have grave questions about the nature of the basic 
fundamentals in Roe v. Wade, regardless of the issue of abortion, but 
finding this constitutional right. Lots of people have questions about 
this decision. I hope fundamentally people will recognize that if you 
repeal Roe v. Wade, you go back to allowing the States to decide this 
issue, which is the way it was prior to Roe v. Wade. The States decided 
this issue. Kansas had a set of laws. Other States had sets of laws. 
This is how it was resolved and dealt with across the land. That is 
what we are talking about.
  People are saying if you repeal Roe v. Wade, everything goes back 
into a back alley and no abortions would be allowed in the United 
States.
  To be factually correct, what happens? This goes back to the States 
to decide how they will handle this particular issue if you do not have 
Roe v. Wade. When people paint such a cataclysmic change, we recognize 
what we are truly legally talking about on Roe v. Wade. What has 
happened since Roe v. Wade? It has been 30 years now, or a little more. 
Forty million babies have been aborted in the United States. We are now 
back and debating this fundamental issue.
  Really, when you boil it all down, it is what is the legal status of 
a young human. The Senator from Pennsylvania beautifully put forward 
the competing issues of interest here of one side--the mother and the 
child. Fundamentally, you have to look at it and ask yourself and 
decide why as a country we have not been willing to confront this 
issue. What is the legal status of the child in utero? What is it? Is 
it a person or is it a piece of property? It is one of the two.
  When the child is out of the mother's womb, we have clearly decided. 
Five seconds ahead of that time when it is in the womb, what is this 
child? Five months in the womb, what is this child? Is it a person or 
is it a piece of property? You can say that is an odd way of putting 
the debate.
  One of the people who inspired me in this legislative arena was a 
gentleman named William Wilberforce, a parliamentarian in England. He 
led the battle for ending the slave trade by Great Britain. They had 
this debate on the fundamental issue of what is a slave. Is it a person 
or a piece of property? They even did a Wedgewood plate on this. They 
had a person in chains as a slave. They put a question around it. ``Am 
I not a man and a brother?'' They asked society that question. ``Am I 
not a man and a brother?''
  What is the child in the womb? Is it not a person and a brother? When 
will we decide? We just simply haven't been willing to say it. We have 
been willing to duck around different avenues on it. Now we are talking 
about research on the young human. We decided to treat it as property 
when talking about patenting young human life. You can't patent a 
person. Therefore, it must be property. But we are uncomfortable 
stating that in law because somehow it doesn't seem quite right.
  When we let the child live, it becomes a person under everybody's 
definition. This actually happened in the slave debate. At one point in 
time in our Constitution we said a slave is three-fifths of a person 
because we weren't willing to say it was a person. It is property, so 
it is three-fifths. We all look back, that was horrible, and that was 
wrong. We know it was wrong.
  Now you are finding that courts are hearing cases about frozen 
embryos and contesting between the mother and the father in a divorce 
case on whether to implant or not. They are asking the question in the 
divorce case: What is the frozen embryo, a person or piece of property? 
Now the courts are having to use the same sort of terms that were used 
in the slave debate. They are asking, Is it a quasi-human with the 
potential for life? They are still trying to get around the question of 
person or property. Which is it? It is one or the other. It is one or 
the other. The courts are trying to find that in a contorted way. It is 
not quite either because we don't want to face it now.
  That is the fundamental question of Roe v. Wade. Is it a person or is 
it property? Am I not a man and a brother?
  We have coarsened our society in a period of time since Roe v. Wade. 
Since 1973, approximately 40 million abortions have taken place in this 
country. We now have a debate in the Nation about whether we are going 
to have a culture of life or a culture of death. I think we would all 
agree we want a culture of life.
  What does that mean? That means we support and stand for life. We 
stand for it in all phases of life. We stand for it in all difficulties 
and all types of life. It doesn't mean somebody who has some physical 
handicap has any less of a life than what I have or the Presiding 
Officer or anybody in this room. This is life we want to celebrate. We 
want to take that celebration to the weakest and most vulnerable in our 
society. We want them to be able to celebrate the culture of life. We 
want to project that and send that around the world, that we believe in 
the culture of life.
  That is what this debate is about. Choose today life or death, 
culture of life.
  Is a young human a person or property? I think scientific evidence 
clearly teaches over time, if it hasn't already, that this is a person. 
You can't treat it any other way.
  I am glad we are having this debate. I am glad my colleague from Iowa 
raised this issue. It is an important one for us. I hope we can 
conclude this. We support the culture of life.
  I yield the floor and reserve the remainder of time allotted to me.
  The PRESIDING OFFICER. Who yields time?
  Mr. HARKIN. How much time do I have, Madam President?
  The PRESIDING OFFICER. Eleven and one-half minutes.
  Mr. HARKIN. I yield 5 minutes to the Senator from Washington.

[[Page 5916]]

  The PRESIDING OFFICER. The Senator from Washington.
  Ms. CANTWELL. Mr. President, I rise today to support Senator Harkin's 
Sense of the Senate that Roe v. Wade, the landmark 1973 decision 
recognizing a woman's constitutional right to choose, was rightly 
decided and should not be overturned; I also want to express my 
opposition to the underlying legislation.
  Thirty years ago, the U.S. Supreme Court held that a woman has a 
constitutional right to privacy when making decisions concerning her 
personal reproductive choices. That decision, Roe v. Wade, was 
carefully crafted to be balanced and responsible while holding the 
rights of women in America paramount in reproductive decisions.
  And Senator Harkin's amendment is very simple: it asks the U.S. 
Senate to reaffirm that Roe v. Wade was rightly decided and should not 
be overturned. This amendment asks the U.S. Senate to reaffirm a 
woman's right to privacy in making her own personal medical and 
reproductive decisions.
  Roe v. Wade held that women have a constitutional right to choose, 
but after the point of viability, the point at which a baby can live 
outside its mother's body, States may ban abortions as long as they 
allow exceptions when a woman's life or health is in danger. Yet the 
legislation before us, which lacks an important health exception, fails 
to do just that: provide for a woman when her health or her life is in 
danger.
  In June 2000, the U.S. Supreme Court reinforced the importance of a 
health exception with its decision in Stenberg v. Carhart, which 
determined that a Nebraska law banning the performance of so-called 
``partial birth'' abortions violated the Roe ruling by the Supreme 
Court.
  The Supreme Court has stated unequivocally that every abortion 
restriction, including bans on so-called ``partial-birth abortion,'' 
must contain a health exception. The Court emphasized that, by failing 
to provide a health exception, the Nebraska law was structured so as to 
place a woman's life in danger. That's exactly what the legislation 
before us today does as well: it places a woman's life in danger.
  Despite the Supreme Court's very clear mandate, the legislation 
before us today does not provide an exception for the health of the 
mother. For this reason, this legislation, like the one struck down in 
Stenberg, is unconstitutional.
  While I assume the author of this legislation is referring to a 
specific procedure, the legislation is not clear on that fact. In fact 
the U.S. Supreme Court held in the Nebraska case that even if the 
statute's basic aim is to ban one specific procedure, its language was 
so broad that it will also ban other medical abortion procedures.
  Moreover, this legislation imposes an undue burden on a woman's 
ability to choose by banning abortion procedures at any stage in a 
woman's pregnancy. This bill does not ban post-viability abortions, a 
limit I would support, but unconstitutionally restricts women's rights 
regardless of where the woman is in her pregnancy.
  This legislation does not have a clear exception for women's health. 
I fundamentally believe that private medical decisions should be made 
by women in consultation with their doctors--not politicians. And this 
includes the methods by which a physician chooses to treat his or her 
patients. Why should we decide that here on the Senate floor?
  And I do not believe that congressional findings make up for medical 
consultation between a patient and her doctor. But this ban would 
undermine a physician's ability to determine the best course of 
treatment for a patient.
  Physicians must be free to make clinical determinations, in 
accordance with medical standards of care, that best safeguard a 
woman's life and health. Women and their families, along with their 
doctors, are simply better than politicians at making decisions about 
their medical care. And I don't want to make those decisions for other 
women.
  Three states, including my home state of Washington, have considered 
these bans by referendum. All three failed. We considered this debate 
in my home state in 1998. The referendum failed decisively--by a vote 
of 57 to 43 percent.
  These so-called ``partial-birth'' abortion bans--whether the 
proposals that have been before the Senate in the past or the one 
before us today--are deliberately designed to erode the protections of 
Roe v. Wade, at the expense of women's health and at the expense of a 
woman's right to privacy.
  I also want to say that I am extremely disappointed that my 
colleagues voted down Senator Murry's women's health amendment 
yesterday because the easiest way to reduce the number of abortions is 
to prevent unwanted pregnancies in the first place. One critical way to 
do this is through better access to contraception, both by improvements 
in insurance coverage of contraception, as well as by improving 
knowledge of, and access to, emergency contraception.
  The Supreme Court, during the thirty years since it recognized the 
right to choose, has consistently required that, when a state restricts 
access to abortion, a woman's health must be the absolute 
consideration. This legislation flouts the Supreme Court's explicit 
directive, the advice of the medical community, and the will of the 
American people. We must continue to ensure that the women of America 
have the right to privacy and receive the best medical attention 
available.
  I urge my colleagues to support Senator Harkin's Sense of the Senate 
that Roe v. Wade, the landmark 1973 decision recognizing a woman's 
constitutional right to choose, was rightly decided and should not be 
overturned.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Iowa.
  Mr. HARKIN. Madam President, I yield myself a couple minutes, and 
then I will close up. I know we have some people who need to vote here 
shortly.
  Madam President, let us be clear about one thing. The amendment I 
have offered is, I think, as straightforward in its approach as Roe v. 
Wade is in its decision; that is, it simply just states Roe v. Wade is 
the law of the land and should not be overturned. That is what we are 
saying on this amendment.
  I have not gotten much into the debate on the underlying bill itself. 
I may later on. I have left that to others. I just feel very strongly 
that in all the smoke and fog and haze and debate about this procedure 
and that procedure, and all of the kinds of philosophical debates that 
are being made--and some of them are very good. I thank the Senator 
from Pennsylvania. He has been very good about engaging in discussions 
on the floor. Maybe later on I will get into a little more 
philosophical debate with him on some of these things.
  But this amendment simply is about Roe v. Wade. That is all this 
amendment is. It is for us to express ourselves, to express ourselves 
clearly and unequivocally that the Senate believes Roe v. Wade is the 
law of the land and should not be overturned.
  Let us send a signal to the women of this country that we are not 
going to turn the clock back, we are not going to turn the clock back 
to what Senator Boxer from California said: the dark days when they 
went to back alleys.
  If my daughter, God forbid, ever found herself in a position like 
that, as I said earlier, yes, I would want her to go to the best 
hospital, have a doctor, have a good obstetrician, and not be forced 
into a back alley. I want it legal. That is what Roe v. Wade is about, 
and that is what this amendment is about: to keep it safe, legal, and, 
yes, rare in the United States.
  I yield back my time.
  Madam President, I ask unanimous consent that Senator Edwards and 
Senator Cantwell both be added as cosponsors, and Senator Boxer be 
added as a cosponsor, and Senator Kerry.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Pennsylvania.
  Mr. SANTORUM. Madam President, I want to address a couple issues and 
then make a closing argument.
  One issue I want to address is the point Senator Boxer made, that 
there were 5,000 deaths of women because of abortions prior to Roe v. 
Wade.

[[Page 5917]]

  Let me give a quote from the former medical director of the National 
Association for the Repeal of Abortion Laws, NARAL:

       How many deaths were we talking about when abortion was 
     illegal? In NARAL, we generally emphasized the frame of the 
     individual case, not the mass statistics, but when we spoke 
     of the latter it was always ``5,000 to 10,000 deaths a 
     year.'' I confess that I knew that the figures were totally 
     false and I suppose that others did too if they stopped to 
     think of it. But in the ``morality'' of our revolution, it 
     was a useful figure, widely accepted, so why go out of our 
     way to correct it with honest statistics? The overriding 
     concern was to get the laws eliminated, and anything within 
     reason that had to be done was permissible.

  So, obviously, it was not just used to get the law eliminated. It 
continues to be used to substantiate the law's existence. And what does 
this law do? It does many things. Let me summarize by mentioning two.
  It takes from the American people the people's legitimate right to 
determine this crucial, moral issue. It was usurped from the people by 
fiat--not elegantly, I would suggest, but inelegantly by nine Supreme 
Court Justices, who decided to lord over the States and their elected 
representatives of the people their version of the world, their world 
view, their hackneyed interpretation of a constitutional liberty.
  That is what happened with Roe v. Wade. It took from the people 
rights to decide their own fate, and rested it in an unelected body, at 
that time of nine old men. That is one thing Roe v. Wade did.
  The second thing it did is it took a page, unfortunately, from our 
past, a page we thought we had learned a lesson from; and that is the 
page of the history of slavery.
  Slavery was a situation in our country where we got our priorities 
out of whack. Our Founding Fathers said, we are endowed by our Creator 
with certain inalienable rights: life, liberty, pursuit of happiness. 
Ordered for a reason, for without life there is no liberty; without 
liberty, there is no happiness. They didn't say happiness, life, 
liberty; liberty, life, happiness. No, they are ordered for a reason. 
Life is a prerequisite to liberty.
  But in the case of slavery, we put the liberty of the slave owner 
ahead of the life of the slave and turned the slave into property. We 
put the rights of the white person in America above the life of the 
black man or woman. We learned our lesson in a very painful way, but we 
didn't learn it well enough. The old saying: If you don't learn from 
history, you are doomed to repeat it. Here we stand, arguing this 
repetition of history and just like in this Hall, 150-plus years ago, 
people from areas of the country argued that this was not a reordering 
or a misordering of liberty. And so they do again today.
  What we have done is put the liberty rights of people ahead of the 
life right of the unborn child. We have misordered our liberties. The 
pain that it has showered across the land of 40-plus million abortions 
and countless other maladies that have gone on, horrible social 
consequences result from that. We need to get our liberties back to 
where our Founding Fathers put them, where our Creator put them: Life, 
liberty, happiness. First among them is the right to life.
  I know I will not be successful in this debate, but I hope my 
colleagues listen to the consequences of putting ordered liberties out 
of order. If you do that, the consequences to our society long term, 
the precedent we set with this constitutional case will poison the well 
of judicial decisions for many years to come. Today, it is the unborn 
child. Tomorrow and tomorrows after, it may be you.
  Mr. President, I yield back the remainder of my time.
  The PRESIDING OFFICER (Mr. Cornyn). The question is on agreeing to 
amendment No. 260.
  Mrs. BOXER. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be.
  The clerk will call the roll.
  The bill clerk proceeded to call 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) is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 52, nays 46, as follows:

                      [Rollcall Vote No. 48 Leg.]

                                YEAS--52

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

                                NAYS--46

     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
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     Miller
     Nelson (NE)
     Nickles
     Pryor
     Reid
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Sununu
     Talent
     Thomas
     Voinovich

                             NOT VOTING--2

     Biden
     McConnell
       
  The amendment (No. 260) was agreed to.
  Mr. HARKIN. Madam President, I move to reconsider the vote.
  Mrs. BOXER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
California is recognized.


                           Amendment No. 261

  Mrs. FEINSTEIN. Mr. President, I call up amendment No. 261 and ask 
for its immediate consideration. It is short, and I would appreciate it 
being read by the clerk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from California [Mrs. Feinstein] proposes an 
     amendment numbered 261.

  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 ``Post-Viability Abortion 
     Restriction Act''.

     SEC. 2. PROHIBITION ON CERTAIN ABORTIONS.

       (a) In General.--It shall be unlawful, in or affecting 
     interstate or foreign commerce, knowingly to perform an 
     abortion if, in the medical judgment of the attending 
     physician, the fetus is viable.
       (b) Exception.--This section shall not apply if, in the 
     medical judgment of the attending physician, the abortion is 
     necessary to preserve the life or health of the woman.
       (c) Civil Penalty.--A physician who violated this section 
     shall be subject to a civil penalty of not to exceed 
     $100,000. The civil penalty provided for by this subsection 
     shall be the exclusive remedy for a violation of this 
     section.

  Mrs. FEINSTEIN. Mr. President, this amendment is simple and 
straightforward. It bans any abortion after viability, except when a 
doctor has determined that it is necessary to save the life or protect 
the health of the woman.
  I have been a part of the Judiciary Committee now for 10 years and I 
have seen this bill come up in three Congresses and listened to or read 
testimony on this bill for three Congresses.
  The first time it came up, it became very apparent to me that the 
definition of partial-birth abortion was too vague. I wondered why it 
was so vague. It looked like it covered different medical procedures. 
And now, about 8 years later, I believe I know why it is so vague. I 
believe it is so vague because it could actually cover all abortions 
and therefore be a major strike against a woman's right to choose. 
Eighty percent of the people of this country believe that abortion must 
be safe and legal to preserve a woman's health.

[[Page 5918]]

People strongly believe that this is a decision between a woman, her 
clergy, her doctor, and her family.
  I deeply believe politicians should not be in the business of making 
decisions about women's reproductive rights. In my view, the Santorum 
legislation, S. 3, is a Trojan horse. It is not what it purports to be. 
It supposedly bans one procedure, D&X, but actually confuses this 
procedure with another, D&E, the most commonly used abortion procedure. 
In fact, its wording is so vague that it could be construed to 
criminalize all abortions.
  Yesterday's Congressional Record shows that Senator Santorum--and I 
have great respect for my distinguished colleague--stated:

       I have not been asking about medical necessity. . . . 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.

  I would like to answer Senator Santorum's question at this time, 
through a letter. After we heard this question, we called the 
University of California San Francisco Medical Center, the Department 
of Obstetrics, Gynecology, and Reproductive Sciences, and talked to the 
chief of that department at San Francisco General Hospital, who is also 
a full professor. His name is Philip D. Darney. Dr. Darney just sent me 
this letter, and I would like to read that letter into the Record:

       Dear Senator Feinstein: I write to provide examples of the 
     need for a ``medical exemption'' to the proposed restriction 
     of use of the so-called ``partial birth abortion'' technique 
     which is now before the Senate. The medical term for the 
     technique is ``intact D&E''.
       I am Chief of Obstetrics and Gynecology at San Francisco 
     General Hospital, SFGH, where my department provides about 
     2,000 abortions yearly to poor women from throughout Northern 
     California. Patients who are in the second trimester and who 
     have special medical problems are referred to SFGH for 
     treatment because our staff has special competence in second 
     trimester abortion and because we can provide specialized 
     care for women who are more likely to have a complicated 
     pregnancy termination. Although I have not reviewed medical 
     records in order to count the number of times we have 
     employed intact D&E, I will provide examples of cases in 
     which the technique was critical to safe conduct of our 
     surgery:
       A 25 year old with two previous vaginal deliveries and 
     bleeding placenta previa and a clotting disorder at 20 weeks 
     was referred for termination of pregnancy. After checking her 
     coagulation parameters and making blood available for 
     transfusion, we dilated the cervix overnight with Laminaria 
     and planned uterine evacuation when adequate dilation was 
     achieved or bleeding became too heavy to replace. Within 12 
     hours cervical dilation was 3 cm and heavy bleeding had 
     begun. We removed the placenta quickly and used the ``intact 
     D&E'' approach to complete the abortion and accomplish quick 
     control of blood loss. The patient required a transfusion of 
     two units of whole blood and was discharged the next day in 
     good health.
       A 38 year old with three previous caesarean deliveries and 
     evidence of placenta accreta was referred for pregnancy 
     termination at 22 weeks because her risk of massive 
     hemorrhage and hysterectomy at the time of delivery was 
     correctly estimated at about 75 percent. After SFGH 
     sonographic studies confirmed placenta previa and likely 
     accreta we undertook cervical dilation with laminaria and 
     made blood available in case transfusion was required. To 
     reduce the 75 percent probability of emergency hysterectomy 
     in the situation of disseminated intravascular coagulation 
     (DIC is quite likely with accreta) we decided to empty the 
     uterus as quickly as possible with the intact D&E procedure 
     and treat hemorrhage, if it occurred, with uterine artery 
     embolization before our patient lost too much blood and 
     hysterectomy was our only option. This approach succeeded and 
     she was discharged in good health two days later.
       These two patients provide examples from my memory of 
     situations in which the ``intact D&E'' technique was critical 
     to providing optimal care. I am certain that a review of our 
     hospital records would identify cases of sever pre-eclampsia, 
     for example, in which ``intact D&E'' was the safest technique 
     of pregnancy termination, I hope the law will not deny our 
     patients the best treatment we can provide them under life-
     threatening circumstances. Sincerely, Philip D. Darney.

  This letter is from the chief of obstetrics, gynecology and 
reproductive sciences at one of the best hospitals in the country. It 
answers Senator Santorum's question. It provides two examples of where 
D&X, or what some also call intact D&E, may well have been necessary to 
protect the health of the woman.
  Heart disease, cancer, and grave fetal abnormalities are among the 
many conditions that can make pregnancy especially dangerous to a 
woman's physical health. Under S. 3, these patients would be forced to 
continue a dangerous pregnancy. That is why I am offering my health 
exception amendment today.
  Indeed, there are many tragic situations that face women today, 
situations that most could never imagine. There is one thing that has 
always characterized these debates. That is that everyone looks at them 
from their own vantage point without taking into consideration the 
situations of others. If you have not encountered a difficult 
situation, such as a possibly dangerous pregnancy, it is hard to know 
what you would do. But women and their families face these situations 
daily.
  That is as good a reason as any why the Senate should not intrude 
into this area, and why the reproductive choices of women should be 
left to the women, their clergy, their morality, their families, their 
doctors, and not to the Senate.
  Having said that, the amendment I am offering strikes a balance 
between protecting a woman's health and ensuring the D&X procedure is 
not abused. This amendment would ban all post-viability abortions 
unless a doctor determines that these abortions are necessary to 
protect the life and health of the woman. To ensure compliance with 
this ban, a doctor who performs a postviability abortion on a woman 
whose health or life is not at risk could be fined up to $100,000.
  What is wrong with S. 3? I will take a moment to explain why I 
believe Senator Santorum's bill is a bad bill. To begin with, it is 
unconstitutional because it lacks a health exception. I heard Senator 
Santorum say a health exception is not necessary. It is necessary. A 
review of the Supreme Court's abortion decisions and the record makes 
clear that any ban on D&X--or what supporters of the Santorum bill 
incorrectly call partial-birth abortion--must include a health 
exception. My amendment includes such an exception.
  In 1973, Roe v. Wade grounded the abortion right in large part on the 
States' compelling obligation to protect maternal health. In fact, the 
Court states that the States' interest in preserving the health of a 
pregnant woman grows more important as a woman's pregnancy progresses. 
Thus, under Roe, the need for a health exception becomes even stronger 
with second- or third-term abortion procedures.
  In 1992, as my colleagues have stated this many times on the floor, 
the Supreme Court explicitly reaffirmed Roe in Planned Parenthood v. 
Casey. Then in the year 2000, in Stenberg v. Carhart, the Supreme Court 
ruled that any ban must have a health exception. I have outlined two 
specific examples of why such a health exception is necessary. Yet 
Senator Santorum's bill does not have such an exception.
  At the same time, S. 3 attempts to ban a specific medical procedure 
which it calls partial-birth abortion. But the bill offers no medical 
definition of partial-birth abortion. Now the American College of 
Obstetricians and Gynecologists, whose more than 44,000 members 
represent approximately 95 percent of all board-certified OB/GYNs 
practicing in the United States, has developed a medical definition of 
what is a D&X procedure. The American College of OB/GYNs's definition 
of the procedure is very different from Senator Santorum's.
  I have to ask, why? Why wouldn't the proponents of this bill put in a 
medically acceptable definition so that those physicians who were 
practicing medicine and may encounter this kind of case would know 
precisely what is prohibited? I believe I know the answer. The answer 
is that the bill is calculated to cover more than just one procedure. I 
think it is calculated to ban all abortions. I believe if the bill 
becomes law, it would be struck down as unconstitutional.

[[Page 5919]]

  I ask unanimous consent to have printed in the Record the letter from 
the American College of OB/GYNs.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                        ACOG Statement of Policy


             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% 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%. 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.

  Mrs. FEINSTEIN. According to the American College of OB/GYNs, any 
definition of D&X must include all four of the elements I mentioned 
performed in the proper sequence.
  The proponents have refused to use this definition, although the 
definition has been available for years. Rather, the language in S. 3 
is so vague that far from outlawing just one particular abortion 
procedure, the way this bill is written, it virtually outlaws any 
abortion procedure. This, I believe, is the true intent of this bill--a 
major strike, and perhaps a fatal strike, against a woman's right to 
choose.
  Everyone agrees that S. 3 lacks a health exception. It purposefully 
lacks a health exception. In the Stenberg case, the Supreme Court ruled 
``significant medical authority supports the proposition that in some 
circumstances this procedure would be the safest.'' In her opinion, 
Justice O'Connor stated:

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

  Let me repeat her words.

       This lack of a health exception necessarily renders the 
     statute unconstitutional.

  Now, that is not my colleague, Senator Boxer, speaking. That is not 
the distinguished Senator from New Jersey speaking. That is not the 
distinguished Senator from Pennsylvania speaking. That is not the 
majority leader, a distinguished physician, speaking. That is the 
Supreme Court of the United States. That is the law of the land.
  This language could not be more clear. However, supporters of the 
Santorum bill argue that they can ignore this language by throwing into 
their bill some questionable facts that a health exception is 
unnecessary. They argue that the so-called findings make irrelevant the 
Supreme Court's constitutional determination in Carhart that a health 
exception is necessary.
  Now, it is not only Carhart. There are a series of other cases.
  One is Richard Medical Center for Women v. Gilmore, in 1999, which 
was affirmed by the Fourth Circuit Court in 2000. I quote:

       The record contains significant evidence that the D&X 
     procedure is often far safer than other D&E procedures.

  Another is Rhode Island Medical Society v. Whithouse, in 1999, 
affirmed by the First Circuit in 2001:

       Defendants claim that a D&X could never be necessary to 
     save a woman's health, but the evidence at trial failed to 
     support that contention. Therefore, this court finds that the 
     D&X could be used to preserve a woman's health and must be 
     available to physicians and women who want to rely upon it.

  If that is not enough, let me mention Hope Clinic v. Ryan, a 1998 
decision.

       Intact D&E reduces the risk of retained tissue and reduces 
     the risk of uterine perforation and cervical laceration 
     because the procedure requires less instrumentation in the 
     uterus. An intact D&E may also result in less blood loss and 
     less trauma for some patients and may take less operating 
     time.

  Another example is Women's Medical Professional Corp. v. Voinovich, 
1995, affirmed in 1997:

       After viewing all of the evidence and hearing all of the 
     testimony, this court finds that use of the D&X procedure in 
     the late second trimester appears to pose less of a risk to 
     maternal health than does the D&E procedure. This court also 
     finds that the D&X procedure appears to pose less of a risk 
     to maternal health than the use of induction procedures.

  These are all clear district court and appellate court decisions, 
plus a number of clear Supreme Court decisions, and yet S. 3 flies in 
the face of all of them. All it offers is 15 pages of weak factual 
findings.
  The Framers of the Constitution did not intend that Congress be able 
to evade Supreme Court precedent and effectively amend the Constitution 
by holding a hearing and generating some questionable testimony from 
hand-picked witnesses. Let me quote former Chief Justice Warren Burger 
on this point.

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

  The supporters of this bill are effectively trying to overturn 
binding Supreme Court precedent and to rewrite the Constitution by 
enacting a bill that openly violates Stenberg v. Carhart and other 
Supreme Court opinions. This, in my view, clearly oversteps legislative 
authority.
  The Santorum bill also presumes guilt on the part of doctors and 
forces them to prove that they did not violate the law. This is putting 
a burden on one group of people, the very people charged with 
protecting pregnant women from harm. The legislation provides that an 
accused physician could escape liability only by proving that he or she 
reasonably believed that the banned procedure--whatever that procedure 
turns out to be, because it is not defined in the legislation--was 
necessary to save the woman's life and no other procedure would have 
sufficed.
  It also opens the door to the prosecution of doctors for performing 
almost any abortion method by forcing them to prove they did not 
violate a law that can be interpreted in many different ways. Indeed, 
this bill is a major step

[[Page 5920]]

toward making all abortions illegal in the United States.
  Why does the Federal Government need to be involved in this issue? 
Why is this legislation even necessary? Roe v. Wade clearly and 
unequivocally allows States to ban all postviability abortions unless 
necessary to protect the life and health of the woman. Forty-one States 
already have bans on the books. So the States have accepted the premise 
of Roe v. Wade. If they have been concerned about postviability 
abortions, as most are, they have taken action, as Roe so provides.
  The fact is, abortions late in a pregnancy are rare and usually 
performed under very tragic circumstances. Some States have not seen 
the need to legislate in this area. Surely anyone who believes in 
States' rights must question the logic of imposing a new Federal 
regulation on States in a case such as this, where States have already 
legislated.
  Finally, I say to my colleagues, the Santorum bill is a bad bill. It 
is clearly unconstitutional. I have cited district court cases. I have 
cited appellate court cases. I have cited Supreme Court cases. S. 3 
fails to provide a straight health exception for the woman, which is 
necessary to stand the constitutional test. It is not the role of the 
Federal Government to make medical decisions. It should be up to the 
doctor and his or her medical judgment.
  This bill is bad because it attempts to ban a medical procedure 
without properly identifying that procedure in medical terms; ergo, it 
muddies the water and it throws all procedures into risk. It could 
affect far more than the procedure it seeks to ban. And it presumes 
guilt on the part of the doctor, something that, in the case of 
physicians, may be unprecedented in American law.
  In our criminal justice system, somebody has to prove you guilty. You 
are presumed innocent. This bill puts the burden on doctors, and it 
ignores the vital health interests of women who are often facing tragic 
complications in their pregnancies.
  That is why I am offering this complete substitute to S. 3. This 
substitute amendment puts medical decisions back in the hands of 
doctors. If the doctor believes such a procedure is necessary to 
protect a woman's life or health, then he or she should be able to 
perform the procedure. I believe it is that simple.
  I strongly believe that Congress should be supporting legislation 
that protects a woman's health. For the sake of all Americans, 80 
percent of whom believe they should have the right to choose to protect 
the woman's health, from all walks of life, present and future, I urge 
my colleagues to join me in supporting this amendment.
  Madam President, I yield 15 minutes of my time to the Senator from 
New Jersey.
  Mr. SANTORUM. Can we go back and forth?
  Mrs. FEINSTEIN. I have no problem with that.
  The PRESIDING OFFICER (Ms. Collins). The Senator from Pennsylvania.
  Mr. SANTORUM. I yield 5 minutes to the Senator from New Mexico.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. I thank the distinguished Senator from Pennsylvania. I 
will not speak very long this evening.
  Madam President, I would like to open my remarks by just talking a 
minute about what one of our very distinguished Senators, Mr. Patrick 
Moynihan, had to say about this procedure. We are not here arguing 
right to life or those who favor abortion. What we are here talking 
about is a procedure that has been described by Senator Patrick 
Moynihan as follows:

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

  That is what the distinguished Senator from New York said.
  We can spend all the time we would like in the Chamber talking about 
Roe v. Wade, about right to life and pro-abortion and where the 
American people are, where the American women are. But that is not the 
issue. The issue is, where do we stand on infanticide, that is to say, 
where do we stand on banning a procedure that reduces--that diminishes 
the life of a child that has been born and has exited the uterus? And, 
as Senator Moynihan said, what on Earth is this procedure?
  I have been listening attentively. I understand the issue is a very 
personal one, a very serious one. It is one that is very difficult for 
many people to even come to the floor and debate, much less describe.
  I don't choose to describe the procedure. I think my friend, the 
former Senator from New York, does it well enough in a few words when 
he says in this case what we are talking about is a child that has been 
born and has exited the uterus.
  The question before us is what should we in the United States say 
about whether or not a doctor should accommodate the killing of a child 
as so described?
  To me, where people stand in this country on abortion or who wants 
Roe v. Wade and who doesn't isn't the issue. The issue is, where are we 
on the actual taking of the life of a child that has already been born 
and has exited the uterus?
  Roe v. Wade--where our Supreme Court chose to enter this fray--does 
not address this issue because they are talking about a much earlier 
period in the development of a fetus in the mother's womb. Partial 
birth abortion takes place way past the Roe v. Wade time schedule and, 
in fact, a child is born and then a choice is made regarding the life 
of that child.
  There are arguments made that this ban is not constitutional. This is 
not true. I believe, having read the case of Roe v. Wade itself and 
then the Nebraska case that followed, that it is perfectly clear to me 
that the Supreme Court is not saying you cannot have a valid statute if 
it properly describes the procedure and it says that a child who has 
been born and who has exited the uterus can be put to death. Clearly, 
the court is not saying in the Nebraska case, nor in the Roe v. Wade 
case, that you cannot legislate with regard to this issue. I don't 
believe one has to spend a great deal of time on the issue. It seems to 
me you are either against partial birth abortion or you are for it.
  If you are against it, you vote for the bill of the Senator from 
Pennsylvania. In that event, the legislation will work its way through 
the Congress, as it already has twice before. It will go to the 
President, as it has twice before. And again, we will ask the 
President, Will you sign it or not?
  I believe it is patently clear that Congress will speak again just as 
it has spoken heretofore twice--not just the House, the House and the 
Senate. Then it will go to the President, but this time it will be this 
President. It is my understanding he will sign it. Therefore, the 
overwhelming will of the U.S. Congress about an issue of grave 
significance and of great importance will have been decided by the 
policymakers and presented to the executive branch, and it will be 
signed.
  I believe we minimize this issue by saying only a few of these 
procedures are done. I submit that I have read literature that says 
between 3,000 and 5,000 of these abortions are done. I don't believe 
anybody can prove that there are only a few done, but I submit if there 
are only a few, that is a few too many.
  From my standpoint, I compliment the distinguished Senator from 
Pennsylvania. He has carried this bill. He has argued it not only 
valiantly but with professionalism. I commend him and suggest to him 
that his many years of effort in this regard will soon see daylight.
  I yield the floor. I thank the Senator for yielding.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, how much time is remaining on our 
side?
  The PRESIDING OFFICER. The Senator has 31\1/2\ minutes remaining.
  Mrs. FEINSTEIN. Thank you, Madam President. I ask that 15 minutes go 
to the distinguished Senator from New Jersey.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.

[[Page 5921]]


  Mr. LAUTENBERG. I thank the Senator from California. I thank her for 
permitting me to speak.
  Madam President, I have listened very carefully to the arguments 
being made. I think a fundamental question preempts much of the 
discussion that is taking place. I think the essentiality to be 
considered is who determines decisions about a woman's health? As far 
as I am concerned, it is a relatively simple proposal. Is it the Senate 
which determines what we do about a woman's health when her health 
could be in jeopardy and she makes the decision, in consultation with 
her physician? Should it be the President of the United States? Should 
it be idealogues who want to control the behavior of legitimate actions 
of other persons? Or should it simply be a patient in consultation with 
her doctor and her family, legitimately covered even in reviews by the 
Supreme Court?
  The bill offered by the junior Senator from Pennsylvania says 
politicians know best. And I say that is wrong. Keep the politicians 
out of the doctor's office.
  We should not interfere with the medical judgment of a licensed 
doctor. Only a woman's personal physician can make judgments about the 
health risks of child birth for that particular patient. If a decision 
to terminate the pregnancy is made, it should be only the woman and her 
family and her personal physician.
  I notice the principal supporters of this legislation are the same 
men who want to take away decisionmaking from the women of this country 
for their own health. As of today, this bill has 44 cosponsors and all 
but one of them are males. This creates the establishment, as I see it, 
of ``male-ogarchy'' over women's rights.
  I say let women decide how to protect their health and their 
families' well-being which is often a question associated with this.
  I thought we overthrew the Taliban telling women exactly how they can 
act, when they can act, and what they should be able to do. I continue 
to hear a great deal of concern from the other side of the aisle about 
fetuses which they call unborn children. What about the born children?
  I am reminded of what Congressman Barney Frank said. He is from 
Massachusetts. He said for some people, their zeal for life seems to 
begin at conception and then ends at birth.
  Next week we are going to likely work on the budget resolution. I 
expect that the Republican budget will track the President's fiscal 
year 2004 plan.
  What happens to born children under the President's budget?
  What happens to pre- and postnatal health programs? What happens to 
child care and nutrition programs? What happens to education and 
afterschool programs? What happens to job training programs? I will 
give you just a few examples.
  Under the President's budget, the Head Start Program is weakened by 
turning it into a block grant. We all know the purpose of turning it 
into a block grant. It is to make it easier to cut the funding for it. 
In effect, the President is saying to the States: Here, you take this. 
You figure it out. And by the way, we are going to cut it. The result 
is that thousands and thousands of children who currently participate 
in Head Start will be thrown out of the program. It is a very valuable 
program.
  Under the President's education budget, millions of children are left 
behind. Even though the President named his education proposal No Child 
Left Behind, the President's budget falls $9.4 billion short of fully 
funding the new education law that he signed into law only last year. 
The President would leave more than 6 million born children behind by 
refusing to provide $6.2 billion in title I funding he promised for 
2004.
  The President wants to cut funding for schools for military children, 
of all things. The President's budget would eliminate Impact Aid 
education funding for 110,000 born children whose parents are being 
mobilized to fight the war on terrorism and against Iraq.
  He wants to make it harder for poor children to get school breakfasts 
and school lunches that, in many cases, are the only nutritional meals 
they will get in a day.
  The President cuts Pell grants and eliminates new funding for Perkins 
loans. The President wants to reduce the maximum amount for a grant. 
And the President would eliminate $106 million in funding for new 
Federal contributions to Perkins loans, which provide low-interest 
loans for undergraduate and graduate students with exceptional 
financial need.
  What about the children of working-class families? The President is 
willing to eliminate child care services for 200,000 children over 5 
years. These are born children. What about them?
  If we want to help protect children, why hasn't there been a cry in 
this Chamber for sensible gun legislation to make our schools and 
communities safer? In the year 2000, my gun show amendment passed the 
Senate. It was designed to take away unlicensed dealers' prerogatives 
to sell guns to anybody they wanted to. But it was killed in the House 
by the Republican leadership.
  There are many other sensible gun laws we could pass, including a 
requirement that guns have child safety locks. Each and every year, 
approximately 3,300 born children are killed by gunfire. What about 
them? Are we going to pass laws to help protect children from gun 
violence? Why isn't that on the agenda of the junior Senator from 
Pennsylvania?
  I commend the President for his commitment to fight the global HIV/
AIDS epidemic we see in front of us. But I ask, what is the President 
doing about the growing AIDS epidemic right here in the United States, 
where one-half of all new HIV infections are among people under 25? 
What about these born children?
  Right now, the Senate is trying to limit the choices women and their 
doctors have in making the most personal and painful decision.
  In 1995, Congress repealed the motorcycle helmet law--I was the 
author of that law--because it was seen as an intrusion by the Federal 
Government into people's lives. Close to 3,000 people--most of them 
under the age of 30--die each year in motorcycle accidents. But if we 
tried to bring back the helmet law, I am sure we would hear about how 
intrusive it would be in people's lives.
  The bill currently before the Senate is nothing more than an 
egregious invasion of privacy and an affront to the doctor-patient 
relationship.
  Some of my colleagues would like us to believe women casually decide 
to terminate a pregnancy after carrying that fetus well into the third 
trimester. The ugly, inaccurate, and unfair portrayal some of our 
colleagues offer about a decision to terminate a pregnancy simply is 
not true. In fact, 89 percent of all abortions in the United States are 
obtained within the first 12 to 13 weeks. Fewer than 1 percent of all 
abortions are performed after 20 weeks.
  In the most gruesome terms, the supporters of S. 3 draw a revolting 
picture of a process that should be avoided if at all possible. But do 
they present an alternative scenario of a family with children and a 
mother who is too ill physically or emotionally to continue giving 
guidance, love, and strength to her family because we in Congress 
intervened and told her doctor what he or she could and could not do in 
providing appropriate medical treatment?
  This issue is one of trust. Do you trust politicians to make 
complicated medical decisions affecting women's lives? Or will you 
leave it to medical experts consulting with families and with patients? 
I say, let's give women and their doctors--not politicians--the right 
to make the choice.
  Another item, Madam President: I would note the junior Senator from 
Pennsylvania continually quotes from an article that appeared in the 
Bergen Record, a newspaper in my State. I want to set the record 
straight since the Senator from Pennsylvania invokes a newspaper in my 
State. Years ago, it was discovered this newspaper article contained 
false information. I refer my colleagues to the Congressional Record of 
September 26, 1996, in which I entered a letter into the Record from 
the health clinic at issue in the article.

[[Page 5922]]

The letter showed the statistics cited in the newspaper article are 
false. It is now 6 years later, and I would say it is time for the 
junior Senator to refrain from using information that is demonstrably 
false.
  There is an old saying: Everyone is entitled to their own opinion, 
but not their own facts.
  The decision whether to vote for this bill ought to be an easy one. A 
recent Supreme Court decision struck down a Nebraska State law modeled 
on the very same legislation presented before the Senate by the junior 
Senator from Pennsylvania.
  The Supreme Court held the Nebraska statute to be unconstitutional 
because it is too vaguely worded and it does not contain any exception 
for the health of the mother. That was the United States Supreme Court 
that said that.
  The disregard for the health of a woman in this legislation is 
unconstitutional and it is offensive. I believe the Government should 
not intrude on these complicated decisions, or tell a woman with 
serious health or fertility risks how to make this difficult decision.
  I am going to oppose this intrusion into the doctor-patient 
relationship. Let us continue to give women and their families--not 
politicians--the right to make these difficult choices. Let them 
determine what is right for their well-being and the well-being of 
their families.
  Madam President, I urge my colleagues to oppose this intrusion. It is 
not a choice that should be made for a woman by politicians who do not 
feel the pain of this decision.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I ask unanimous consent to add 
Senator Stabenow and Senator Edwards as cosponsors of my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Pennsylvania.
  Mr. SANTORUM. Madam President, I yield 7 minutes to the Senator from 
Ohio.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. DeWINE. Madam President, I rise in strong opposition to the 
amendment that has been offered by my friend and colleague from 
California.
  A few hours ago, the Senate decisively rejected, in a vote of 60 to 
38, a substitute amendment by my colleague from Illinois. The Feinstein 
substitute amendment we are now considering, frankly, is even worse 
than the failed Durbin substitute amendment. I would like to spend a 
few minutes to discuss this with my colleagues and explain exactly why 
I believe the Feinstein amendment simply is not good public policy.
  The Feinstein substitute says that it would be ``unlawful'' to 
perform an abortion if ``the fetus is viable'' in the judgment of ``the 
attending physician.''
  First, as I have stated earlier, most partial-birth abortions are 
conducted when the fetus is within 20 to 26 weeks, so, just as with the 
Durbin amendment, the Feinstein amendment does not even cover most 
partial-birth abortions.
  Furthermore, the terms of the substitute, when you look at the 
language, make it practically useless in stopping these abortions.
  What does the language in the Feinstein amendment mean? Very simply, 
it means the abortion provider--the person who will perform the 
abortion, the person who makes a living doing abortions--is the person 
who will make the decision of whether or not the abortion is legal.
  What do I mean by that? Let me explain.
  Specifically, the Feinstein substitute does not define when a fetus 
is viable.
  It further imposes no restrictions on the abortionist. Instead the 
substitute would permit the abortionist to decide what viability means. 
The abortionist is the one under this substitute who makes that 
decision. As long as the abortionist says the fetus is not viable, then 
the Feinstein amendment would not apply. He could go ahead and perform 
the abortion. This is obviously not acceptable.
  We don't have to search very far for an example of how abortionists 
would apply this standard. At least one abortionist who performs third-
trimester abortions has publicly taken the position that viability 
occurs only when a baby can survive independently of the mother without 
any artificial assistance. Of course, that is not what most doctors 
mean when they refer to viability. It is not the standard 
understanding. But under the Feinstein substitute, this standard, as 
defined by this doctor, would be fine.
  Even just this much discussion should be enough to convince everyone 
of the dangers of accepting this substitute, but there is more. Under 
the terms of the Feinstein substitute, even if an abortionist should, 
completely against his self-interest, declare the baby he has been 
hired to kill is, in fact, viable under the Feinstein substitute, he 
could still perform the abortion. All that would be required under the 
Feinstein substitute would be for the abortionist to determine, in the 
medical judgment of the abortionist, that the abortion was necessary to 
preserve the life or health of the mother.
  As I discussed earlier today, the term ``health of the mother'' is 
almost impossible to clearly define, based on prior Supreme Court 
decisions. In fact, the Supreme Court has declared, in an abortion-
context decision, that this term is extremely broad. I quote again for 
my colleagues from the Supreme Court case of Doe v. Bolton. Here is 
what the Court said:

       [P]hysical, emotional, psychological, familial, and the 
     woman's age--[are] relevant to the well-being of the patient. 
     All these factors may relate to health . . .

  That is the Supreme Court, Doe v. Bolton. Under this definition, 
almost any excuse would be enough to justify a late-term partial-birth 
abortion. Yet the abortionist would be within the law because he 
determined the health of the mother was at risk.
  In fact, we have a real-life example of just how this power to define 
a mother's health would be used. Kansas is currently the only State in 
the Union that requires partial-birth abortions to be reported distinct 
and separate from other abortions. In 1999, Kansas abortionists 
reported they performed 182 partial-birth abortions. They also reported 
all 182 of these partial-birth abortions were performed on babies who 
the abortionists themselves found to be viable.
  Further, they reported that all 182 of these postviability partial-
birth abortions were performed for mental as opposed to physical health 
reasons. Those are very interesting statistics. They tell us a lot. 
Every single one of these partial-birth abortions, 182 out of 182, were 
reported by the abortionist as being performed on viable children for 
mental as opposed to physical health reasons.
  Mr. SANTORUM. I yield the Senator 1 additional minute.
  The PRESIDING OFFICER. Without objection, the Senator is recognized.
  Mr. DeWINE. After all this, if somehow, somewhere, somebody were able 
to prove the abortionist had in some way violated this law--and I don't 
know how that would ever happen--the only penalty would be a fine, a 
civil penalty.
  If you add it all up, the effects of this substitute amendment are 
clear. It would leave someone like Dr. Haskell, who I have talked 
about, a professional abortionist who only does partial-birth 
abortions, to perform partial-birth abortions practically at will. 
Accordingly, this amendment would allow thousands of these gruesome 
procedures to continue to be performed.
  A vote for the Feinstein substitute is simply a vote to kill the 
Partial-Birth Abortion Ban Act. It is a vote simply to allow partial-
birth abortions to continue.
  Therefore, I ask my colleagues to defeat this amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Madam President, I am a cosponsor of the amendment, and 
on behalf of Senator Feinstein, I yield myself 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator is recognized for 5 minutes.

[[Page 5923]]


  Ms. STABENOW. I appreciate the deeply held views on all sides of this 
issue. But first I will indicate there is not a more fundamental issue 
for the women of this country that relates to our privacy, respect for 
our own decisionmaking, as well as our own religious beliefs, than this 
fundamental issue we are debating. I also remind my colleagues that the 
term partial-birth abortion, there is not a procedure called that, but 
the late-term abortion procedure is in fact one-tenth of 1 percent of 
all of those procedures, all abortions that are done every year. We are 
talking about a very small group of procedures done when there are real 
tragedies.
  These are wanted pregnancies, women who have been excited about 
having babies and find out very late in the term of the pregnancy that 
there is a serious or fatal problem. And their families grieve. They 
grieve over the decisions they have to make about how to proceed, given 
the information.
  I believe we need, as a governmental body under the Constitution, to 
respect their privacy, their religious freedom, for them to be able to 
struggle with their own decisionmaking, their family's and their faith, 
to be able to do what is best to protect their own life and their own 
health.
  I rise to support the Feinstein amendment strongly and would be 
surprised, given the vote on the Harkin amendment, if this amendment 
did not pass. We just had a vote where 52 Members of this great body 
voted to uphold Roe v. Wade, voted to uphold the constitutionality, the 
decision made by the Supreme Court in that case. The Feinstein 
amendment does nothing more than repeat the language as it relates to 
the life and health of the mother. It repeats what is current law in 
terms of Roe v. Wade. So those who support Roe v. Wade, who supported 
the Harkin amendment, should be supporting this amendment as well.
  I would like to share a couple of letters that talk about what we are 
really doing.
  This is a statement by Maureen Britell, given on March 10 of this 
year. She writes:

       In February of 1994, my family was happily awaiting the 
     birth of Dahlia, our second daughter. My pregnancy was 
     progressing smoothly and we were getting more excited as the 
     days and the weeks passed. At the time, my husband, Andrew, 
     was on active duty in the Air Force and had been unable to 
     come to any of my routine prenatal checkups. He wanted to 
     share in the excitement, so when I was 5 months pregnant, we 
     scheduled an additional ultrasound.
       When we went in for our appointment, that joy dissipated. 
     The technician was unable to locate my daughter's brain. 
     After my doctor came in, he informed us that Dahlia had a 
     fatal anomaly . . . where the brain stem develops, but not 
     the brain.

  Madam President, can you imagine how that couple must have felt at 
that moment? As a mother of two children, I certainly can. She goes on 
to say:

       I went to the New England Medical Center for a high-level 
     sonogram, which confirmed what my doctor had told me. The 
     medical experts [there] . . . reviewed our options with 
     Andrew and me, but they all recommended the same thing: to 
     protect my health, we should induce labor.
       I am a Catholic and the idea of ending my pregnancy was 
     beyond my imagination. I turned to my parish priest for 
     guidance. He counseled me for a long time and, in the end, he 
     agreed that there was nothing more that I could do to help my 
     daughter.

  Madam President, I ask the Senator for 2 additional minutes.
  Mrs. FEINSTEIN. I yield 2 more minutes to the Senator.
  Ms. STABENOW. She said:

       With the support of our families and our priest, Andrew and 
     I made the decision to end the pregnancy.
       I was scheduled for a routine induction abortion in which 
     medications are used to induce labor. My doctors anticipated 
     that it would be a standard delivery and that because Dahlia 
     had no brain, she would die as soon as the umbilical cord was 
     cut.

  Madam President, again, can you imagine writing this letter and the 
pain of this woman and her family?

       After 13 long hours of labor, I started to deliver Dahlia. 
     Unexpectedly complications arose and Dahlia lodged in my 
     birth canal. The placenta would not drop. Our doctors had to 
     cut the umbilical cord to complete the delivery, and avoid 
     serious health consequences for me. Dahlia died while still 
     in my birth canal--the same description used in the so-called 
     ``partial-birth abortion.''
       My husband and I still mourn the loss of Dahlia. However, 
     because of the excellent medical care I received, I was able 
     to become pregnant again and in June 1995, we welcomed 
     Nathaniel into our family.
       Now I'm sharing my story not only as a mother who would be 
     banned from having an abortion, but as a military wife. I 
     find the timing of this bill highly offensive, as we military 
     families are just days away from sending our loved ones into 
     armed combat. I resent the administration using families like 
     mine as a cloak in their effort to ban reproductive 
     healthcare in this country.
       In a perfect world, I would never have to write you this 
     letter. Every pregnancy would be wanted, healthy and happy--
     and no loved ones would be going off to war. Until that time, 
     however, there will be families like mine. And until that 
     time, abortion must be kept safe, legal and accessible.

  Madam President, we have thousands of women who have shared similar 
stories. We have thousands who are asking for us to say no to this 
extreme legislation, to support the Feinstein amendment, and to join 
with us--all of us--in efforts to come forward to prevent unwanted 
pregnancies.
  I was so disappointed that Senator Murray's amendment did not pass--a 
positive effort to focus on prevention, on coming together to focus on 
stopping the unwanted pregnancies on the front end. I was very 
disturbed to see even a more restrictive effort to show how extreme 
this effort is--even Senator Durbin's amendment did not pass this body.
  This is an extreme measure, which will take away the ability for 
women to respond when their life or their health is in jeopardy as a 
result of a pregnancy. This is not what we should be doing in the 
Senate. I urge my colleagues, reaffirm the vote on the Harkin amendment 
to support Roe v. Wade by supporting the language in the Feinstein 
amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SANTORUM. Madam President, to address the letter the Senator from 
Michigan read, I want to assure the young lady who wrote that letter to 
the Senator from Michigan--and it is a very compelling story, one that 
has my sympathy, certainly--my heart goes out to her and her family for 
what she had to go through. Let me, please, assure her it is crystal 
clear from the language in the bill that what happened to her is not 
offered under this legislation. I will read it:

       The term partial-birth abortion means an abortion in which 
     the person performing the abortion deliberately and 
     intentionally vaginally delivered the living fetus.

  Here is the key operative language:

     delivered the living fetus for the purpose of performing an 
     overt act that the person knows will kill the partially 
     delivered living fetus.

  The doctor in that case, first off, did not perform an abortion, did 
not deliver the child for the purpose of killing the child. So it is 
clear beyond a shadow of a doubt--and we have discussed this at 
hearings and on the floor multiple times--there are obviously times, 
unfortunately and tragically, where a birth is either induced, or a 
natural delivery where complications arise, and for the life of the 
mother the pregnancy is terminated. That is obviously a horrible and 
tragic situation. That is clearly outside of the bounds of this 
definition.
  I just assure this young woman who wrote the Senator, and maybe even 
met with the Senator from Michigan, her case would not under any 
circumstances--if you are going through a procedure for the intention 
of delivering the child--this is for a person performing an abortion. 
This doctor was performing a delivery of a child who had complications, 
which resulted in having to terminate the pregnancy to save the life of 
the mother. That is clear in two cases. No. 1, they weren't performing 
an abortion. They didn't deliver for the purpose of performing an act 
that the person knows will kill the partially delivered fetus. No. 2, 
there is a life-of-the-mother exception in the bill. So in either 
case--predominantly the first case--the case the Senator from Michigan 
read----
  Ms. STABENOW. Will the Senator yield for a moment?
  Mr. SANTORUM. Yes.
  Ms. STABENOW. I wanted to clarify that, in fact, given the situation, 
they were performing an abortion to do

[[Page 5924]]

that. That was the intent of the procedure. It was an abortion. 
Additionally, I say the mother's life was not in jeopardy, but her 
health and future fertility were in question. There were a number of 
issues relating to her health as well.
  I just indicate, with all due respect, I think the issue here, when 
we are debating medical procedures on the floor, really gets to the 
point about whether or not we in the Senate should be debating medical 
procedures. Earlier, there was a debate about whether a child which was 
born with a brain outside of its head was in fact to be categorized as 
a disabled child. All of these issues we are debating here as non-
medical personnel, we don't know the facts or what happened in any 
individual case. So that would be my concern.
  Mr. SANTORUM. Maybe I wasn't listening as attentively as I should 
have been. Maybe I heard it incorrectly. I am happy to review what the 
Senator read. I apologize if I got that wrong.
  In either case, I wanted to clarify we are not talking about cases 
where there are not abortions being performed.
  With respect to the statement that we should not be making these 
decisions, with all due respect, we make decisions here about 
everything under the sun--things that 50 years ago who would have 
thought we would be debating. To suggest we don't have the technical 
expertise to determine what is a brutal, gory, horrendous procedure and 
ban it--we make illegal in this country lots of things we find to be 
morally objectionable and offensive. I think we have every right--in 
fact, we have a duty to speak on this. To suggest we in the Congress 
don't have the right to make these decisions, that we have to give it 
up to the courts--unelected people, just give it up to them; I don't 
need to be ruled by a bunch of judges.
  People elected me and the Senator from Michigan and everybody else in 
this Chamber to go forward and to make decisions about issues of 
importance to the people of our States. That is what we are going to 
do.
  Ms. STABENOW. Will my colleague yield one more moment?
  Mr. SANTORUM. I will be happy to yield.
  Ms. STABENOW. I interject, we are not asking that this right be given 
up to the courts; we are asking that these decisions be left up to a 
woman, her family, and her faith.
  Mr. SANTORUM. I appreciate the Senator's comments, but in all due 
respect, she is leaving it up to the courts because the courts have 
made this decision and the courts have dictated the law of the land. 
They have proscribed in elected representatives the right to have any 
impact on that. We had that debate just a few minutes ago with Senator 
Harkin and his amendment.
  The courts have completely trumped the legislature. They have decided 
to take an entire body of law away from us and the State legislatures. 
I believe the Senator was in the State legislature at one point. That 
is my recollection. They have taken it away from the State 
legislatures, taken it away from the Congress, taken it away from 
people in our democracy, in our Republic, and decided to hold it up 
across the street where nine, at the time men, decided to take the law 
into their own hands by creating a right that did not exist. It just 
did not exist. I do not know how you say this. All through time, all 
through the history of this country, this right was there and we did 
not find it. All of a sudden, we found this right in the middle of the 
Constitution in this liberty clause.
  As I said before, they took the liberty clause of the Constitution, 
and within that clause they found this new right, this new right that 
took liberty and put it ahead of life, even though our Founders put 
life ahead of liberty because that is what our Creator did. We are 
endowed by our Creator with life, liberty, and the pursuit of 
happiness. Not liberty, life. You have to have life to enjoy liberty. 
What the Supreme Court did was put some person's liberty ahead of 
another person's life. That is fundamentally wrong, I do not care what 
your feeling is on abortion. It is wrong, and I suggest the Senator 
from Michigan and both Senators from California would agree with me 
that when the Supreme Court did that in the Dred Scott case, when they 
put the liberty of the slaveholder ahead of the life of the slave, the 
Senator from Michigan I am sure today would stand up and say: That is 
wrong; you cannot put someone's liberty rights ahead of someone's life 
rights.
  What argument do you make in the case of abortion? Because that is it 
exactly. Remember, the liberty clause of the Constitution is the 
genesis of a right to an abortion. The liberty clause is the genesis of 
the right to an abortion, and it trumps the life of this other human 
being. That is the fact.
  You can argue that it is a different case--people have--that somehow 
this child inside the womb is not a human being. But it is. It is 
genetically human. It is alive. It is a living human being. You can say 
in this case it is a special case. That is what they said in the 1850s, 
right here on this floor. They said it was a special case--a special 
case because, you know, these black people, they are not like us. These 
little children, they are not like us. But that is what they did in the 
1840s and 1850s.
  They put in the Dred Scott case that the liberty rights of the 
slaveholder trump the life rights of the slave. The slave was property. 
The child in the womb, under the Supreme Court Roe v. Wade decision, is 
property. Look at this case with open eyes. Look at this case and what 
it does, the history that is being repeated in the world today, and you 
wonder why people still march in the streets. It is the same reason--
the same reason. It is the same case. It is Dred Scott, and for some 
reason we just choose not to see it.
  What does this amendment do? It affirms Dred Scott. If you like Roe 
v. Wade, vote for this amendment because this is the law right now. 
Basically, the Harkin amendment makes no change. It takes the partial-
birth statute, wipes it out, and just says: The law of the land is the 
law of the land. OK. We have accomplished nothing here. We have 
accomplished nothing over the last 4 days.
  If you eliminate the underlying statute, which is the partial-birth 
abortion bill which we believe is constitutional, you wipe it out, all 
you do is restate the law, and that is what the Feinstein amendment 
does. So if you are for the partial-birth abortion bill and vote for 
this, do not go home and say you are for the partial-birth abortion 
bill because you are not because this amendment excises the underlying 
bill and replaces it with a restatement of Roe v. Wade. That is what 
this amendment does. Nothing else.
  I suspect the Senator from California would agree with that. I do not 
think I am mischaracterizing her amendment whatsoever. It restates Roe 
v. Wade that says you cannot have abortions postviability except to 
protect the life or health of the mother. That is what Roe v. Wade 
said; that is what this amendment says.
  In practice, of course, health means anything, so there is no 
restriction at all. In practice, this amendment will mean the same 
thing: There is no restriction at all.
  With respect to the Durbin amendment--again, I said in all candor to 
him and I will repeat it on this occasion--at least I believe the 
Senator from Illinois was trying to find some restriction, was trying 
in a rather painful and I would argue ultimately failed way to find 
some movement, some attempt to reduce or put some stricture on 
postviability abortions. I think he failed in doing so, but I think he 
made an honest attempt to try. This does not even attempt to try. This 
basically restates Roe v. Wade.
  Again, as far as I am concerned, this is the vote on the bill. If you 
vote for this, you basically vote to kill the bill and replace it with 
nothing. What you replace it with, again I would make the argument, is 
the Dred Scott case. That is what you replace it with. You replace it 
with putting people's liberty rights above people's life rights.
  I repeat over and over, there is a reason the Founders put the 
ordered rights in the place they did. I will quote again:

       . . . they are endowed by their Creator with certain 
     unalienable Rights, that among

[[Page 5925]]

     these are Life, Liberty and the pursuit of Happiness.

  I think everyone in this Chamber would agree, you cannot pursue 
happiness if you are not free, and you cannot enjoy freedom if you are 
not alive. So, of course, you cannot put freedom ahead of life. You 
cannot put someone's freedom ahead of someone's life. That is not 
right. That is out of order.
  As I said before, we did it once before in this country and we paid a 
horrible price, and we have left a horrible legacy that has stained 
this country. I would argue we are doing the same thing. We are 
repeating the failures of history. For some reason--as many people did 
in the 1840s and 1850s, good upstanding--in the movie ``Gods and 
Generals,'' people have objected to the fact all these people were God-
fearing, southern generals and others; they were portrayed in almost a 
good, positive frame that these are good people; how can they believe 
that someone's liberty rights trump someone's life rights? How could 
they believe, these good, God-fearing people--these are faithful 
Protestants, Catholics, and Jews--how could they believe that? You just 
scratch your head and say they must have been bad people.
  I do not think they were bad people, and I do not think the people on 
the other side of this issue are bad people. I think they just got it 
wrong. I think they do not understand the lessons, the wisdom of the 
people who wrote our founding documents, the wisdom of understanding 
basic rights and the ordering of those rights to give meaning to those 
rights because if you misorder the rights, they have no meaning. If you 
put happiness before liberty so that your right to happiness trumps my 
right to freedom, well, then, I am your slave. I am the object of your 
happiness for your own benefit. That is not fair. If you put my 
happiness in front of your life, well, obviously no one is going to say 
that is fair. And the same thing, if you put my freedom to do what I 
want in front of your right to life, most people would say that is not 
fair. But that is the law of the land. That does not say this is not a 
difficult issue. That does not say there are not cases that could pull 
at your heart strings and that the decisions people have to make are 
tough decisions. They are. But that is why----
  Mrs. BOXER. Will the Senator yield for a question?
  Mr. SANTORUM. In a moment. But that is why happiness is at the end. 
Because you know what, life and liberty are all about tough choices 
sometimes, all about making decisions which are not necessarily easy, 
and happiness results at the end, hopefully. We have to make a lot of 
tough decisions to get to that point. It is of lower priority. There 
are higher, more noble things than the pursuit of happiness. That is 
what our Founders understood. These basic rights, as painful, as 
troubling, and as difficult as they are to preserve, are important 
because without them there is no hope of freedom, there is no hope of 
happiness, there is no hope of prosperity. And so it is the case with 
the unborn. There is no hope of liberty, there is no hope of happiness, 
because we have misordered our priorities and rights in this country.
  I know that is a tough message, and I know it is not a popular thing 
to hear, but I believe in my soul this is corrupting the body of this 
country, as slavery corrupted the body of this country for 200 years, 
and then some. We have an obligation to face history and to face the 
reality of what we are doing, and all we are asking is to end one 
little brutal procedure, one little insult to humankind. Three inches 
away from that legal status that would deem this person back in order, 
back in order where their life counts more than somebody else's 
liberty; 3 inches from coming under those founding documents that give 
them rights. But they might as well be 3 miles, for their life is 
ticketed for extermination in such a brutal fashion, in the hands of a 
doctor who was taught to heal.
  We have an obligation to end and stop evil, even if it is just a 
little thing, even if it is only a few thousand times a year in this 
country. It almost boggles my mind to think that 3, 4, 5, 6, whatever 
thousands of these that occur a year is considered to be rare and 
infrequent. I say to my colleagues, if they are for the underlying 
bill, they cannot vote for the Feinstein amendment because it simply 
terminates this bill and replaces it with nothing, replaces it with 
current law.
  No one who votes for this can say they are for the partial-birth 
abortion ban, because they are not. They are for eliminating that ban 
and replacing it with current law, a reinstatement of Supreme Court 
law, which is nothing as far as doing anything about this brutal 
procedure.
  I am happy to yield. Can I yield on the Senator's time if that is 
okay?
  Mrs. FEINSTEIN. May I ask, first, how much time we have remaining?
  The PRESIDING OFFICER. The Senator from California has 10 minutes 36 
seconds. The Senator from Pennsylvania has 25 minutes 23 seconds.
  Mr. SANTORUM. I will yield on my time.
  Mrs. BOXER. I appreciate that. I have two questions for the Senator. 
Is the Senator aware that 78,000 women a year around the world die of 
illegal abortions? And since he stated that the other figure I put out 
is false, I went back and got the World Health Organization number. Is 
the Senator aware of this?
  The second question I have is: The Senator, in having a debate with 
Senator Clinton, which I thought was probably one of the more 
instructive things that has happened this afternoon, talked eloquently 
about the rights of the disabled, and I wondered why the Senator, in 
the two last votes that we had, voted against the Individuals with 
Disability Education Act, IDEA funding, which would fund education for 
children with disabilities.
  Mr. SANTORUM. As the Senator knows, I have been one of the strongest 
advocates for increase in funding for the disabled. I was one of the 
people who worked on this side of the aisle to try to get a dramatic 
increase. When I came to the Senate, IDEA was funded at 5 percent. It 
was promised at 40. One of the things I said on this floor and said 
repeatedly across my State, it was my objective to get it to where it 
was promised in 1975, which was 40 percent.
  One of the concerns I had with the actual reauthorization of the 
legislation was not that we should not be putting more money in to help 
people with disabilities through the educational process. I disagreed 
with some of the substantive changes within the law, particularly when 
it came to how we----
  Mrs. BOXER. This is appropriations. These are two votes.
  Mr. SANTORUM. In that case, you are talking about the mandatory 
spending issue, and I do not believe----
  Mrs. BOXER. No.
  Mr. SANTORUM. That is my understanding.
  Mrs. BOXER. I appreciate the Senator has not seen it.
  Mr. SANTORUM. I have not seen it. I know I voted against mandatory 
spending for IDEA, but I voted consistently for increases.
  Mrs. BOXER. These are two votes for 2 years in a row.
  Mr. SANTORUM. As the Senator from California knows, since Republicans 
took control of the Chamber in 1995, IDEA funding has gone up from 5 
percent to, I believe, about 15 to 20 percent right now through the 
initiative of many of us who saw this as a real scourge on the Congress 
for mandating something, saying we would fund it, and then we do not.
  I do support it. I may not support the level of increases. As the 
Senator knows, when a hefty increase is supported, then somebody comes 
along and tries to double or triple that and blow a hole in the budget. 
I think my record is clear that I voted for responsible and steady 
increases to get us up to the 40 percent, and I have made a pledge to 
do so.
  Mrs. BOXER. I ask unanimous consent that the record of these votes be 
printed in the Record.
  Mr. SANTORUM. I have no objection.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               H.R. 4577


                           AMENDMENT NO: 3699

       Harkin motion to waive section 302(f) of the Budget Act to 
     permit consideration of

[[Page 5926]]

     the Harkin-Wellstone amendment which provides full funding 
     for the Individuals with Disabilities Education Act (IDEA) by 
     increasing it from $7.35 billion to $15.8 billion.
       Motion rejected: Yeas--40; nays--55; not voting--5.
  Mr. SANTORUM. I want to counter a couple of other things. The Senator 
from New Jersey says I keep referring to the Bergen County Record, and 
he made a statement that has been proven false. I can say that the 
Bergen County Record has never printed a retraction to the story and 
claims to this day that their investigative reporter was not wrong. So 
there is an honest disagreement. The paper stands by their story, has 
not printed a retraction, and has said publicly that they have no 
intention of doing so. So just because Senator Lautenberg found 
somebody who disagrees with the story does not mean it is not true.
  I want to go, finally--and then I will be happy to yield back to the 
Senator from California--to what this health exception means.
  Under Doe v. Bolton, the health exception means--and I am going to 
read the case. ``Health'' was broadly defined.

       Medical judgment may be exercised in light of all factors--
     physical, emotional, psychological, familial, and the woman's 
     age--relevant to the well-being of the patient. All these 
     factors may relate to health. This allows the attending 
     physician the room he needs to make his best medical 
     judgment.

  So just understand what this amendment does. It strips out the 
language of the partial-birth abortion ban, replaces it with the 
language basically from Doe v. Bolton, which is the current law, which 
is no exceptions. In other words, there are no limitations under 
current law, by the courts, for any abortion at any time. There simply 
are no limits.
  So that may be where many Members of this Chamber are, and I respect 
that. I disagree with them, but I respect that. To simply restate the 
law and then claim that one is for the partial-birth abortion bill, I 
think, falls hollow on the Chamber and hopefully we can defeat this 
amendment.


         UNANIMOUS CONSENT AGREEMENT--EXECUTIVE CALENDAR NO. 38

  Mr. SANTORUM. As in executive session, I ask unanimous consent that 
following the vote in relation to the Feinstein amendment, the Senate 
proceed to executive session, and an immediate vote on the confirmation 
of Calendar No. 38, William Quarles, to be U.S. District Judge for the 
District of Maryland, with no intervening action or debate; further, I 
ask that following that vote, the President be immediately notified of 
the Senate's action, and the Senate then resume legislative session.
  The PRESIDING OFFICER (Mr. Alexander). Without objection, it is so 
ordered.
  The Senator from California.
  Mrs. FEINSTEIN. I want to make a couple of comments. The first 
comment is that comparing my amendment with the Dred Scott decision is 
ridiculous. Having said that, the distinguished Senator from 
Pennsylvania is right about one thing. In a sense, this is a 
codification of Roe.
  I have sat on the Judiciary Committee. I ask my colleagues the 
question: What do you think of Roe v. Wade? Overwhelmingly, most would 
say it is well-settled law. The States have adapted to it, and Roe v. 
Wade allows States to restrict abortion severely, if the fetus is 
viable, that is, can be sustained outside of the uterus. And over 40 
States have banned or severely restricted postviability abortions.
  S. 3 is duplicitous because it says it does one thing but does 
another. It says that it bans partial-birth abortion, but it does not 
adequately define it, and so bans much more than this method. Moreover, 
the bill does not define D&X in a medical context.
  Respectfully, Senator Santorum is not a physician, and, respectfully, 
he is not going to be carrying out a surgical procedure. But there are 
hundreds of thousands of physicians out there who are carrying out this 
medical procedure. And Senator Santorum wants to leave them with an 
unclear definition in this bill. And the precise, medically accurate 
definition I read into the Record, the definition of D&X as proposed by 
the American College of Obstetricians and Gynecologists, is not the 
definition in the bill.
  What I have done is tried to write a simple, straightforward bill 
that essentially sustains Roe v. Wade. So those who believe in Roe v. 
Wade should vote for my amendment. It says that any abortion is illegal 
once the fetus is viable, once the doctor determines that the fetus can 
sustain itself outside of the womb, unless the life and the health of 
the woman are in jeopardy. That is Roe v. Wade. The amendment is also 
consistent with a whole host of federal court decisions which I read 
and in the Supreme Court's decision in Stenberg v. Carhart where 
Justice Breyer, Justice O'Connor, and three other justices very clearly 
said that a Nebraska statute very similar to S. 3 falls because there 
is no exception for the health of the woman.
  The Senator has talked about the liberty clause. And Roe v. Wade, 
yes, did come from the liberty clause of the due process clause of the 
14th amendment and other parts of the Constitution. Roe helped 
establish a basic right of privacy for women.
  I get so annoyed when men constantly strive to take away hard-won 
rights from women. Respectfully, I don't want Senator Santorum taking 
away my reproductive rights. I respect his views. I respect his rights. 
I respect his moral code, his religion, his conversations with his 
physician. Why can't those who happen to be pro-choice receive the same 
respect, particularly when a fetus is not viable, when a fetus cannot 
sustain life outside the womb? That is what this is all about.
  Make no mistake, if you believe in choice, you will support my 
amendment. If you do not, you will support S. 3. That is the clear 
division of the house on this. If there were a clear medically accurate 
definition in S. 3, I would not be saying what I am saying. I would 
say: Members, you are voting on a particular medical procedure; you are 
prohibiting a particular medical procedure. But if you are voting for 
S. 3, you are voting to prohibit much more than just the medical 
procedure that has been put on this floor. You are also prohibiting D&E 
abortions as well. That has been the finding not of me but of 
obstetricians and gynecologists, some of them from the finest medical 
schools in our country, and numerous federal courts, including the 
Supreme Court.
  S. 3's infringement on women's right to choose reminds me of another 
woman's right. It was not until 1920 that we got the vote. And when 
this Nation was founded and we go back to our days of--for some--glory, 
women could not get a higher education, women could not own property, 
women could not inherit. Every single right we have won has been fought 
for. And the right to choose has been fought for as well.
  There are probably few people in this body who have seen a young 
woman ready to commit suicide from an unwanted pregnancy. I have. I 
went to college when abortion was illegal in the United States. I saw 
what happened. I saw the back-alley abortionist set up and do business. 
And then later I set sentences for women who had been convicted of 
felonies for having illegal abortions. I did that for 6 years. And I 
saw the tragedy they caused. We cannot go back to those days.
  This is a step--let there be no doubt about it--back to those days. 
We have before us an imprecise piece of legislation, not just banning 
D&X but covering many more abortion methods than the S.3's supporters 
have said they aim to cover. A vote for my amendment will be a vote 
with the 80 percent of the population who believe in a women's right to 
choose to protect their health because my amendment is, Senator 
Santorum is correct, in essence a codification of Roe v. Wade.
  I am hopeful that those who voted for the Harkin Roe v. Wade 
amendment will also vote yes on this amendment.
  I reserve the remainder of my time, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I appreciate the Senator from California 
in her direct response to the issue of what this amendment does. She 
said this codifies Roe v. Wade, but Members

[[Page 5927]]

have had a chance to voice their opinion on Roe v. Wade. We just had an 
amendment on that. It is clear where our Members were.
  That is not the issue before the Senate. The issue is not, Do we need 
another vote on Roe v. Wade. We already had one. The question is, Do we 
want a ban on partial-birth abortion? If you want a ban on partial-
birth abortion, you do not get rid of the ban and replace it with 
nothing. I suggest you cannot vote for the bill on final passage and 
vote for this because you have just voted to kill the bill and replace 
it with nothing.
  I think the Senator from California would agree with that. She says 
all we are doing is restating current law. So it does not accomplish 
anything.
  At least the Durbin amendment, arguably, you could make the claim--I 
don't agree, but you could make the claim that this is accomplishing 
something. The Senator from Illinois made the claim, and you could 
stand up with the legislative crafting he did and at least make a claim 
to that. The Senator from California is not attempting to make a claim 
to that.
  I encourage those who support the ban to vote against something that 
strips the ban and replaces it with nothing.
  The Senator from California said that 80 percent of the public 
supports this right. That is not the case. There is simply poll after 
poll after poll after poll that shows if you understand what Roe v. 
Wade does--which is abortion any time, for any reason during 
pregnancy--probably less than 20 percent, in every poll I have seen, 
certainly less than 25 percent, support that.
  In most polls I have seen, less than 20 percent support an absolute 
right to abortion. But that is Roe v. Wade.
  I make the argument that 80 percent oppose Roe v. Wade. There may be 
a larger percentage. Certainly there is a larger percentage than 20 
percent who support some limited right to abortion. But they do not 
support Roe v. Wade because Roe v. Wade is an absolute right to an 
abortion at any time during pregnancy. I wanted to make that clear.
  If this bill passes, it will go to conference. We will report it back 
here and hopefully pass it and send it on to the President.
  You are right. Several have said we are going to bring it to court. 
Of course it will go to court. The Supreme Court will have a chance to 
look at this, to see whether we have jumped through the hoops the 
Supreme Court made us jump through.
  With respect to the amendment of the Senator again, going back to her 
amendment, I would posit a question. I don't know if anybody has the 
answer to it. I don't know if there are any statistics. How many human 
postviability abortions are stopped by Roe v. Wade today?
  I believe Roe is an absolute right. I would have some Members who 
disagree with that, saying there are restrictions. If that is the case, 
I would certainly like to know how many abortions are blocked in this 
country because of Roe v. Wade. If there are some, I would certainly be 
interested in hearing. If the answer is none, then I think my statement 
stands, which is this is an absolute right to abortion in this country.
  With respect to the statement of the Senator from California that I 
am comparing her amendment to the Dred Scott decision, that is not 
necessarily correct. I said her amendment is a restatement of Roe. And 
Roe is like the Dred Scott decision. I repeat, Roe is like the Dred 
Scott decision because Roe v. Wade put liberty rights ahead of life 
rights.
  As I said, the founding documents stated we are endowed by our 
creator with certain inalienable liberties. We have ordered liberties--
rights: Life, liberty, pursuit of happiness. Not liberty, life, pursuit 
of happiness. You must have liberty to enjoy life. You must have true 
liberty to enjoy happiness. They put them in order for a reason.
  What Roe v. Wade does is take the liberty rights of an individual and 
puts them ahead of the life rights of another individual. That is 
exactly what happened in Dred Scott. They took the liberty rights of 
the slaveholder and put them ahead of the life rights of the slave.
  So, as I said, I am not condemning her amendment or trying to say 
anything derogatory about what she put on paper. I am not saying that 
at all. I guess I am saying something derogatory about the decision of 
Roe v. Wade because I think it gets it wrong. The Supreme Court got it 
wrong.
  The Senator from California said nominees coming before the Congress 
say Roe v. Wade is settled law. I suspect nominees in the 1850s and 
1860, early 1860s, who came before the Senate said the Dred Scott case 
was settled law. That doesn't mean it was right. That does not mean it 
is constitutional, the way we look at liberty and the way we look at 
life, and the way we look at the order of those rights.
  I just suggest these are important issues. But I underscore this. If 
you vote for this amendment, you vote to strip the bill and replace it 
with nothing. I think the Senator from California would agree with 
that. It is simply a restatement of law. That doesn't get you to a ban 
on this procedure and the eventual court challenge that we know is 
ahead of us on this issue.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. I would like to respond in this way, if I may. The 
distinguished Senator said that if you vote for my amendment, you don't 
specifically ban D&X. That is true. You ban all postviability 
abortions, including all use of D&X postviability.
  Let me also reiterate that S. 3 does not specifically ban D&X either. 
In fact, D&X procedure isn't defined in Senator Santorum's bill. The 
most knowledgeable people in the country have looked at S. 3, the 
nation's leading obstetricians and gynecologists, and what they tell me 
is that S. 3 will affect much more than D&X because S. 3's definition 
is incomplete and flawed. It is not me saying this, it is the American 
College of Obstetricians and Gynecologists. I have entered their letter 
into the Record.
  The Senator could have used that definition in the bill, and then we 
would know what we were voting on. But he did not. I believe that, from 
the beginning, it has been intentional not to include a specific 
medically accurate definition in the bill. The bill is a Trojan horse. 
It could impact D&E abortions, the most common abortion method used, 
but the Senator refuses to admit it. The bill violates Roe and other 
Supreme Court opinions because it doesn't protect the health of the 
woman.
  So what Senator Stabenow, Senator Edwards, and I have done in this 
amendment is say that any abortion after the point of a fetus' 
viability, as determined by the physician, is illegal--except to 
protect the health or life of the woman.
  My amendment follows the Constitution. It is constitutional.
  We just had 52 votes supporting Roe v. Wade. If those 52 votes are 
real, then the same senators will vote for my amendment because both 
Senator Santorum and I agree that this codifies Roe v. Wade.
  I have listened to the debate over D&X as a member of the Judiciary 
Committee now in three Congresses. In every Congress I have asked: Why 
don't you put in the medical definition? And in every Congress the 
other side refuses to put in the medical definition. It makes you 
suspicious. Why wouldn't their bill use the generally accepted medical 
definition, unless it truly is a Trojan horse? Unless they are truly 
trying to mask what they are trying to do, which is to strike at the 
heart of a woman's right to choose.
  I think I will now close off this debate. I urge those who voted on 
the Harkin amendment to please sustain that vote, to vote consistently, 
and to vote for the Feinstein-Stabenow-Edwards amendment.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, having now gone through the process of 
trying to pass a piece of legislation that was found unconstitutional 
by the

[[Page 5928]]

Court, let me be very clear, it is not my intention to try to pass 
another piece of legislation that is going to be unconstitutional. If 
the Senator is suggesting that my motive here is to pass a piece of 
legislation and pull one over on the Court, let me make very clear I 
have no intention of trying to pull one over on anybody. This Court is 
not a friendly Court on this issue.
  I realize I have, and the people who have worked on the drafting of 
this legislation have, a heavy burden to carry. So I am not being cute. 
I am not being deceptive. I am simply trying, to the best of my 
ability, to adequately and sufficiently describe a procedure to include 
that procedure and exclude all others. Because that is what the Court 
asked us to do--to define this procedure so specifically as to exclude 
others.
  The Court went through great detail, talking about other procedures 
where a child could still be alive and portions of that child could be 
outside the mother. They could be doing another form of abortion and an 
arm or a leg or some portion of the body could go outside of the mother 
in the process of killing the child in the womb. So they said the 
original definition was not clear enough. So we came back and made it 
crystal clear. We said the person performing the abortion:

       . . . deliberately and intentionally vaginally delivers a 
     living fetus, in the case of head-first presentation the 
     entire fetal head is outside the body of the mother.

  You do not do any other procedures where you present the head. You 
don't do it. I don't think any doctor in the land would say you do any 
of these other abortions where you present the head. It is just not 
done.
  Second:

       . . . or in the case of breech presentation, any part of 
     the fetal trunk past the navel.

  So it is not a hand or a foot or an arm. It is the legs, the feet, 
the buttocks, and the lower part of the abdomen is outside of the 
mother, and in most cases the arms--the hands and arms.
  That is a pretty clear definition of this procedure and cannot be--
from all of the descriptions we have received in testimony--confused 
with any other procedure.
  The AMA board of trustees said:

       The procedure is ethically different from other destructive 
     abortion techniques because the fetus, normally 20 weeks or 
     longer in gestation, is killed outside of the womb.

  These other procedures are done inside the womb. That doesn't mean 
maybe a portion of the baby may be outside. But it is killed by the 
doctor inside the womb.

       The ``partial-birth'' gives the fetus an autonomy which 
     separates it from the right of the woman to choose treatments 
     for her own baby.

  This is the American Medical Association. They recognize that this is 
different. Courts say they may recognize it is different, but you 
haven't adequately defined it. Now we have adequately defined it. We 
have said the entire baby, basically, except for the head is outside of 
the mother. That is a pretty clear definition.
  This idea that it is somehow vague and we have not addressed that 
issue I reject. We have addressed that issue. We have gone through the 
health exceptions, the Senator from California did. And I will not 
argue against myself. I think we have been successful in stating that 
we have rebutted the health exception by the stipulations that we have 
made in the bill.
  Let me remind Members this is a vote to excise the underlying bill, 
eliminate it, substitute for it, strike it, and insert existing law--
nothing, no change. This bill would have the effect of being on the 
floor of the Senate and have no meaning whatsoever. It simply is a 
restatement of Roe v. Wade. If you are for eliminating this procedure, 
you cannot vote for this amendment. It doesn't even try to do anything 
else. At least the Durbin amendment was a substitute. You eliminated 
the partial-birth. You could make the argument that we were eliminating 
all postviability abortions.
  The Senator from California says this wouldn't change the law one 
bit--not one bit. All you are doing is killing the underlying bill and 
replacing it with nothing. That means you are voting against the bill.
  I hope a good, strong majority of Members will vote for this bill and 
not simply strip this bill and replace it with nothing because that 
would be a pretty clear sign they are not in favor of the bill.
  I yield the remainder of my time.
  Mr. LAUTENBERG. Mr. President, earlier this evening I pointed out 
that the junior Senator from Pennsylvania continues to refer to a 
September 15, 1996 article in the Bergen Record that contained 
incorrect information about the number and type of abortions performed 
at Metropolitan Medical Associates, MMA. After I spoke on the floor he 
offered the following rebuttal, which I am paraphrasing because a 
formal transcript isn't available yet:

       I want to counter a couple of things to the Senator from--
     the Senator from New Jersey says I keep referring to the 
     Bergen Record . . . I can just say that the Bergen Record 
     never did print a retraction to the story and claims that 
     their investigative reporter was not wrong. There is an 
     honest disagreement. The paper stands by their story and has 
     not printed a retraction and said publicly that they have no 
     intention of doing so. So just because Senator Lautenberg 
     found somebody who disagrees with the story doesn't mean it 
     isn't true.

  It so happens that the ``somebody'' who ``disagreed'' with the above 
mentioned Bergen Record article was the management of Metropolitan 
Medical Associates.
  I ask unanimous consent that the full text of the letter be printed 
in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

       Dear Mr. Ritt, We, the physicians and administration of 
     Metropolitan Medical Associates, are deeply concerned about 
     the many inaccuracies in the article printed in September 15, 
     1996 titled ``The Facts on Partial-Birth Abortions''.
       The article incorrectly asserts that MMA ``performs 3,000 
     abortions a year on fetuses between 20 and 24 weeks, of which 
     at least half are by intact dilation and evacuation.'' This 
     claim is false as is shown in reports to the New Jersey 
     Department of Health and documents submitted semiannually to 
     the New Jersey State Board of Medical Examiners. These 
     statistics show that the total annual number of abortions for 
     the period between 12 and 23.3 weeks is about 4,000, with the 
     majority of these procedures being between 12 and 16 weeks. 
     The intact D&E procedure (erroneously labeled by abortion 
     opponents as ``partial birth abortion'') is used only in a 
     small percentage of cases between 20 and 23.3 weeks, when a 
     physician determines that it is the safest method available 
     for the woman involved. Certainly, the number of intact D&E 
     procedures performed is nowhere near the 1,500 estimated in 
     your article. MMA perform no third trimester abortions, where 
     the State is permitted to ban abortions except in cases of 
     life and health endangerment.
       Second, the article erroneously states that most women 
     undergoing intact D&E procedures have no medical reason for 
     termination. The article then misquotes a physician from our 
     clinic stating that ``most are Medicaid patients . . . and 
     most are for elective, not medical, reasons . . . Most are 
     teenagers.'' This is a misrepresentation of the information 
     provided to the reporter. Consistent with Roe v. Wade and New 
     Jersey State law, we do not record a woman's specific reason 
     for having an abortion. However, all procedures for our 
     Medicaid patients are certified as medically necessary as 
     required by the New Jersey Department of Human Services.
       Because of the sensitive and controversial nature of the 
     abortion issue, we feel that it is critically important to 
     set the record straight.
                                                 The Management of
                                  Metropolitan Medical Associates.

  Mr. SANTORUM. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the amendment. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  Mr. FRIST. I announce that the Senator from Kentucky (Mr. McConnell) 
and the Senator from Oklahoma (Mr. Nickles) are necessarily absent.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from North Carolina (Mr. Edwards), and the Senator from 
Massachusetts (Mr. Kerry) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
North

[[Page 5929]]

Carolina (Mr. Edwards) and the Senator from Massachusetts (Mr. Kerry) 
would vote ``aye''.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 35, nays 60, as follows:

                      [Rollcall Vote No. 49 Leg.]

                                YEAS--35

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Cantwell
     Carper
     Chafee
     Clinton
     Corzine
     Daschle
     Dayton
     Dodd
     Durbin
     Feinstein
     Graham (FL)
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Sarbanes
     Schumer
     Stabenow
     Wyden

                                NAYS--60

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

                             NOT VOTING--5

     Biden
     Edwards
     Kerry
     McConnell
     Nickles
  The amendment (No. 261) was rejected.
  Mr. JEFFORDS. Mr. President, I rise today to express my concerns with 
S. 3, the ``so-called'' Partial-Birth Abortion Ban Act of 2003.
  Shortly before my election to Congress, the Supreme Court made its 
landmark decision in Roe v. Wade to constitutionally protect a woman's 
right to choose. During my time in Congress, there has been no other 
issue that has engendered more passion or debate than this decision.
  While I ardently support a woman's right to choose, I have spent my 
time in Congress trying to ensure that abortions are as rare as 
possible. We can reduce the number of abortions through strong support 
of Title X, encouraging adoption, educating on the use of emergency 
contraceptives, and requiring insurance policies to cover 
contraceptives. In that manner we can ensure that women control their 
own reproductive destiny.
  The ``so-called'' Partial-Birth Abortion Ban Act is one of many 
attempts to overtly or covertly undermine and overturn the 
constitutional right afforded women in Roe v. Wade. It is imperative 
that Congress not be the entity making a woman's decision on this most 
personal of issues. This is a decision to be made by a woman in 
consultation with her doctor and others she chooses to include. The 
bill we consider today will place the Federal Government in the middle 
of the most intimate of discussions between a woman and her physician.
  I would like to take this opportunity to discuss with my colleagues 
the constitutional deficiencies contained in this legislation. Let me 
start with the title of this legislation, the Partial-Birth Abortion 
Ban Act.
  Ask any doctor if they have ever performed a partial-birth abortion 
and the response is no such medical term exists. So what are we 
banning? For that answer we turn to the definition of a partial birth-
abortion contained in the bill. What we find is a very broad--overly 
broad--definition that is strikingly similar to the over broad 
definition found unconstitutional by the United States Supreme Court in 
the Carhart decision.
  You will hear my colleagues say this definition is limited to late 
term abortions, or abortions performed during the third trimester or 
postviability. However, if you examine the definition contained in this 
legislation, its breadth would cover safe abortion procedures that are 
used in the second trimester or previability of the fetus. Why have my 
colleagues chosen to use a definition that is over broad?
  Enactment of this legislation, if upheld, would erode the Roe 
decision by banning an abortion procedure that is used previability of 
the fetus. Thus, this legislation can be clearly seen as an attempt to 
undermine the legal underpinnings of the Roe decision.
  Another critical constitutional deficiency in this legislation is the 
absence of a health exception for the mother. The original Roe 
decision, and most recently the Supreme Court Carhart decision, 
required that any ban on an abortion procedure have an exception for 
the health of the mother. The proponents of this legislation will point 
to the pages of findings contained in the legislation as to why it is 
unnecessary to have an exception for the health of the mother. There 
are two problems with this rationale, first the Supreme Court has shown 
an unwillingness to consider Congressional findings of fact in recent 
decisions, such as Morrison, VAWA, and Kimmel, ADEA. Second, during the 
debate on the Carhart decision, the Supreme Court had knowledge of 
these findings, yet still ruled that because the Nebraska statute did 
not have an explicit health exception the law was unconstitutional.
  So why do my colleagues seek to move this legislation forward even 
with these glaring constitutional deficiencies? I can reach no other 
conclusion, based on the facts, than it is an attempt to erode the 
constitutional protections provided to women in the Roe decision. Mark 
my words, this legislation is one step in the process of attempting to 
overturn the Roe decision, and I will fight that outcome every step of 
the way.
  Mr. FEINGOLD. Mr. President, I will oppose S. 3, the Partial Birth 
Abortion Ban Act, and instead will support a constitutionally sound 
alternative.
  Mr. President, I understand that people on all sides of this issue 
hold sincere and strongly held views. I respect the deeply held views 
of those who oppose abortion under any circumstances. Like most 
Americans, I would prefer to live in a world where abortion is 
unnecessary. I support efforts to reduce the number of abortions 
through family planning and counseling to avoid unintended pregnancies.
  I have always believed that the decisions in this area are best 
handled by the individuals involved, in consultation with their doctors 
and guided by their own beliefs and unique circumstances, rather than 
by government mandates. I support Roe v. Wade, which means that I agree 
that government can restrict abortions when there is a compelling State 
interest at stake. I have previously voted to ban postviability 
abortions unless the woman's life is at risk or the procedure is 
necessary to protect the woman from grievous injury to her physical 
health, which is why I will again be voting for the Durbin alternative 
to S. 3.
  Since the Senate last debated this issue in 1999, the Supreme Court 
has ruled on a statute that is almost identical to the language of the 
bill before us today. In June 2000, in Stenberg v. Carhart, the Court 
held that the State law, a Nebraska statute, banning so-called partial 
birth abortions was unconstitutional. The Court found that the law was 
so vague and overbroad that it posed an undue burden on a woman's right 
to choose by encompassing safe and common abortion procedures used 
prior to viability. The Court also found that, even in banning abortion 
procedures after viability, the State must include an exception for the 
health of the mother.
  The Senate now has the Supreme Court's guidance, as we consider 
legislation regulating late-term abortions. This is guidance that the 
Senate did not have when we previously debated legislation like S. 3. I 
feel very strongly that Congress should seek to regulate abortions only 
within the constitutional parameters set forth by the U.S. Supreme 
Court. Yet in light of the Supreme Court's 2000 decision, the bill 
before us today, S. 3, is unconstitutional on its face. It is so vague 
and overbroad that it, too, could unduly burden a woman's right to 
choose prior to viability.
  I might add that I would have preferred that S. 3 had been first 
reviewed by the Judiciary Committee on which I serve, rather than 
having been brought straight to the Senate floor. The Judiciary 
Committee should hold hearings

[[Page 5930]]

and review the bill prior to its consideration by the full Senate. This 
is especially important because the Supreme Court has now struck down a 
law that is almost identical to the bill before us today. There have 
been no hearings in the Senate Judiciary Committee to consider this 
bill since the Court's Carhart decision. Perhaps, if the Judiciary 
Committee had more thoroughly reviewed this legislation, it would have 
reported a bill that could have withstood constitutional scrutiny.
  The Durbin alternative amendment would ban abortions by any method 
after a fetus is viable, except when serious medical situations dictate 
otherwise. I support the Durbin amendment because it recognizes that, 
in some circumstances, women suffer from severely debilitating diseases 
specifically caused or exacerbated by a pregnancy, or are unable to 
obtain necessary treatment for a life-threatening condition while 
carrying a pregnancy to term. The exceptions in the Durbin amendment 
are limited to conditions for which termination of the pregnancy is 
medically indicated. It correctly retains the option of abortion for 
mothers facing extraordinary medical conditions--such as breast cancer, 
preeclampsia, uterine rupture, or non-Hodgkin's lymphoma--for which 
termination of the pregnancy may be recommended by the woman's 
physician due to the risk of grievous injury to the mother's physical 
health or life. By clearly limiting the medical circumstances where 
postviability abortions are permitted, the Durbin amendment protects 
fetal life in cases where the mother's health is not at such high risk. 
In contrast, S. 3 provides no exception at all to protect the health of 
the mother.
  I understand that the Carhart decision did not define the health 
exception or limit it to grievous physical injury. I recognize that it 
is not clear whether the narrow health exception contained in the 
Durbin amendment would be upheld, if it comes before the Court. To 
date, I have supported this narrow definition of the exception 
necessary to protect the physical health of the woman because I believe 
that it strikes the right balance between preserving a woman's right to 
choose and concerns that abortion procedures late in pregnancy should 
only be used in rare circumstances. I voted for the Daschle amendment 
in the 105th Congress and the Durbin amendment in the 106th Congress 
and again in this Congress, because they reflect this position.
  The Durbin amendment properly seeks to ensure that the exceptions to 
the ban on postviability abortions are properly exercised. It requires 
a second doctor to certify the medical need for a postviability 
abortion. The second doctor requirement will ensure that postviability 
abortions take place only when continuing the pregnancy would prevent 
the woman from receiving treatment for a life-threatening condition 
related to her physical health or would cause a severely debilitating 
disease or impairment to her physical health.
  The Durbin alternative strikes the right balance between protecting 
women's constitutional right to choose and the right of the state to 
protect future life after viability. It protects a woman's physical 
health throughout her pregnancy, while insisting that only grievous, 
medically diagnosable conditions justify aborting a viable fetus. Both 
fetal viability and women's health would have been determined by the 
physician's best medical judgement, as they must be, in concurrence 
with another physician.
  I hope that, as the Senate considers this bill and the proposed 
amendments, we do so in full recognition of the strong feelings about 
this issue on all sides. We should respect these differences and strive 
to legislate in this area in a way that is constitutionally sound. That 
is why I will oppose S. 3 and instead will support the Durbin 
substitute amendment.
  Mr. KENNEDY. Mr. President, the Republican leadership is wrong to ask 
the Senate to support legislation that has been ruled unconstitutional 
by numerous courts. Since the last debate in the Senate in 1999, the 
Supreme Court found a very similar law enacted by the State of Nebraska 
to be unconstitutional. This bill is unconstitutional as well.
  The Republican leadership has chosen to make as its top priority a 
flatly unconstitutional piece of legislation at a time when so many 
families across the country are facing economic hardship, when 
communities are struggling to deal with homeland security needs, and 
being forced by state budget crises to cut back on education and health 
care.
  Because of the Republican leadership's decision to act on this bill, 
we will do nothing this week to provide an economic stimulus plan for 
the Nation's families and workers. We will do nothing to provide new 
funding for communities struggling to protect themselves from new 
terrorist attacks. We will do nothing to help the millions of uninsured 
children in this country get the health care they need. We will do 
nothing for schools struggling to meet higher standards under the No 
Child Left Behind Act. We will do nothing to help college students 
struggling to pay tuition and relieve their debt. We will do nothing to 
help the millions of families across the Nation who are worried about 
their economic future.
  Let us be clear as to what this bill does not do.
  This bill does not stop one single abortion. The proponents of this 
bill distort the law and the position of our side with inflammatory 
rhetoric, while advocating a bill that will not stop one single 
abortion. This bill purports to prohibit a medical procedure that is 
only used in rare and dire circumstances. It is not used on healthy 
mothers carrying healthy babies. And if this bill is passed, a doctor 
could be forced to perform another, more dangerous procedure if it 
becomes necessary to terminate a pregnancy to protect the life and 
health of a woman.
  This bill does not protect the health of the mother. Nowhere is there 
language that would allow a doctor to take the health of the mother 
into consideration, even if she were to suffer brain damage or 
otherwise be permanently impaired if the pregnancy continued.
  And this bill is not needed to protect the life of babies who could 
live outside the mother's womb because those babies are already 
protected under the law of the land. In Roe v. Wade, the Supreme Court 
specifically held that unless there was a threat to the life or health 
of a woman, she did not have a constitutional right to terminate a 
pregancy after viability.
  So what is this legislation all about? It is about politics and 
inflammatory language and hot-button topics. But it is not about 
stopping abortion.
  Because of the sound and fury and high emotion that surrounds this 
issue, I would like to make my personal views clear. I am pro-choice. 
But I believe that abortions should be rare. I believe that we have an 
obligation to create an economy and the necessary support systems to 
make it easier for women to choose to bring children into the world. If 
the proponents of this legislation were serious about limiting the 
number of abortions in this country, then we would be debating access 
to health care, quality education, the minimum wage, and the other 
issues of economic security that are so important to parents bringing 
up children. But those issues are not on the Republican leadership's 
agenda.
  Instead, for rank political reasons, we are here this week debating 
so-called partial birth abortion. I do not believe that it is the role 
of the United States Senate to interfere with or regulate the kind of 
medical advice that a doctor can give to a patient. And that doctor/
patient relationship and the protection of the health of the mother is 
really what is in jeopardy with this legislation.
  From the time of the 1973 decision in Roe v. Wade through the 
Stenberg v. Carhert decision in 2000, the Supreme Court of the United 
States has made clear that the Constitution allows states to restrict 
post-viability abortions as long as there are protections for the life 
and health of the mother.
  Indeed, 41 states already ban post-viability abortions, regardless of 
the procedure used. My own State of Massachusetts prohibits these 
abortions except when the woman's life is in danger

[[Page 5931]]

or the continuation of the pregnancy would impose a substantial risk of 
grave impairment of the woman's health. I would vote for a post-
viability ban that protects women's life and health today.
  The role of the United States Senate is to protect and defend the 
Constitution of the United States. Each of us in this body has taken 
that oath of office. And that oath of office and the Constitution 
require me to oppose this legislation.
  This bill unconstitutionally seeks to restrict abortions in cases 
before viability and it does not provide an exception to protect the 
mother's health after viability. It also impermissibly attempts to 
interfere with the doctor/patient relationship. For all of these 
reasons, I oppose this bill.

                          ____________________