[Congressional Record (Bound Edition), Volume 150 (2004), Part 4]
[Senate]
[Pages 5176-5221]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 UNBORN VICTIMS OF VIOLENCE ACT OF 2004

  The PRESIDING OFFICER. Under the previous order, the hour of 10:30 
having arrived, the Senate will proceed to the consideration of H.R. 
1997, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 1997) to amend title 18, United States Code, 
     and the Uniform Code of Military Justice to protect unborn 
     children from assault and murder, and for other purposes.

  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Madam President, I come to the floor this morning to 
begin the debate on the Unborn Victims of Violence Act. I would like 
first to thank our 40 cosponsors for their leadership and support on 
this issue.
  Let me also thank specifically Senator Lindsey Graham, who championed 
this issue on the House side for a number of years before he joined us 
here in the U.S. Senate. He has worked tirelessly to see to it that the 
most vulnerable members of our society are, in fact, protected.
  Let me also thank our lead House sponsors, Congresswoman Melissa Hart 
from Pennsylvania, and my friend and colleague from the State of Ohio, 
Congressman Steve Chabot. They have both been great champions of this 
great cause. They worked tirelessly to help get this important bill 
passed in the House of Representatives.
  Our bill is very simple. I will take just a couple of minutes to 
explain it.

[[Page 5177]]

It is a bill about simple justice. It is a bill about doing what is 
right. I was asked yesterday by one of my colleagues, Why do we need 
this bill? Why is this bill on the floor?
  This is what I responded yesterday and this is what I would say to my 
colleagues here in the Senate this morning. Imagine a pregnant woman in 
a national park or a pregnant woman on an Air Force base and she is 
violently assaulted. As a result of that assault, she loses her child; 
that child dies. Today, there is no Unborn Victims of Violence Act. 
Today, unless that Federal park or Air Force base is located in a State 
that has a similar law, a Federal prosecutor would search the Federal 
statute books in vain to find anything to charge that assailant for the 
death of that child, for the death of that unborn infant, the fetus. 
The only thing that Federal prosecutor would be able to charge that 
defendant with is the assault of the woman. The death of that child 
would not be able to be charged as what we would think would be a 
separate offense. Justice would not be done for that, what we would 
think would be a separate offense.
  This bill corrects that. This bill recognizes there are two victims. 
There is the victim, the mother, who was assaulted; and there is the 
victim, the unborn child, who was either injured or killed. It is that 
simple.
  This bill recognizes when someone attacks and harms a mother and her 
unborn child that attack does in fact result in two separate victims: 
the mother and her child. That is what this bill does.
  I will have more to say about this bill later. I will reserve the 
remainder of my time.
  The PRESIDING OFFICER. The Senator from California.


                           Amendment No. 2858

  Mrs. FEINSTEIN. Madam President, I would like to call up amendment 
2858.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:
  The Senator from California [Mrs. Feinstein] for herself and Mr. 
Lautenberg, Mr. Bingaman, Mrs. Boxer, Mr. Kennedy, and Mr. Corzine, 
proposes an amendment numbered 2858.
  Mrs. FEINSTEIN. I ask unanimous consent the reading of the amendment 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

           (Purpose: Entitled the Motherhood Protection Act)

       Strike all after the enacting clause and insert:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Motherhood Protection Act''.

     SEC. 2. PROTECTION OF PREGNANT WOMEN.

       (a) In General.--Title 18, United States Code, is amended 
     by inserting after chapter 90 the following:

              ``CHAPTER 90A--PROTECTION OF PREGNANT WOMEN

              ``CHAPTER 90A--PROTECTION OF PREGNANT WOMEN

``Sec.
``1841. Causing termination of pregnancy or interruption of the normal 
              course of pregnancy.

     ``Sec. 1841. Causing termination of pregnancy or interruption 
       of the normal course of pregnancy

       ``(a)(1) Any person who engages in conduct that violates 
     any of the provisions of law listed in subsection (b) and 
     thereby causes the termination of a pregnancy or the 
     interruption of the normal course of pregnancy, including 
     termination of the pregnancy other than by live birth is 
     guilty of a separate offense under this section.
       ``(2)(A) Except as otherwise provided in this paragraph, 
     the punishment for that separate offense is the same as the 
     punishment provided for that conduct under Federal law had 
     that injury or death occurred to the pregnant woman.
       ``(B) An offense under this section does not require proof 
     that--
       ``(i) the person engaging in the conduct had knowledge or 
     should have had knowledge that the victim of the underlying 
     offense was pregnant; or
       ``(ii) the defendant intended to cause the termination or 
     interruption of the normal course of pregnancy.
       ``(C) If the person engaging in the conduct thereby 
     intentionally causes or attempts to cause the termination of 
     or the interruption of the pregnancy, that person shall be 
     punished as provided under section 1111, 1112, or 1113, as 
     applicable, for intentionally terminating or interrupting the 
     pregnancy or attempting to do so, instead of the penalties 
     that would otherwise apply under subparagraph (A).
       ``(D) Notwithstanding any other provision of law, the death 
     penalty shall not be imposed for an offense under this 
     section.
       ``(b) The provisions referred to in subsection (a) are the 
     following:
       ``(1) Sections 36, 37, 43, 111, 112, 113, 114, 115, 229, 
     242, 245, 247, 248, 351, 831, 844(d), 844(f), 844(h)(1), 
     844(i), 924(j), 930, 1111, 1112, 1113, 1114, 1116, 1118, 
     1119, 1120, 1121, 1153(a), 1201(a), 1203, 1365(a), 1501, 
     1503, 1505, 1512, 1513, 1751, 1864, 1951, 1952(a)(1)(B), 
     1952(a)(2)(B), 1952(a)(3)(B), 1958, 1959, 1992, 2113, 2114, 
     2116, 2118, 2119, 2191, 2231, 2241(a), 2245, 2261, 2261A, 
     2280, 2281, 2332, 2332a, 2332b, 2340A, and 2441 of this 
     title.
       ``(2) Section 408(e) of the Controlled Substances Act of 
     1970 (21 U.S.C. 848(e)).
       ``(3) Section 202 of the Atomic Energy Act of 1954 (42 
     U.S.C. 2283).
       ``(c) Subsection (a) does not permit prosecution--
       ``(1) for conduct relating to an abortion for which the 
     consent of the pregnant woman has been obtained or for which 
     such consent is implied by law in a medical emergency;
       ``(2) for conduct relating to any medical treatment of the 
     pregnant woman, or matters related to the pregnancy; or
       ``(3) of any woman with respect to her pregnancy.''.
       (b) Clerical Amendment.--The table of chapters for part 1 
     of title 18, United States Code, is amended by inserting 
     after the item relating to chapter 90 the following:

``90A.Protectionofpregnantwomen.................................1841''.

     SEC. 3. MILITARY JUSTICE SYSTEM.

       (a) Protection of Pregnant Women.--Subchapter X of chapter 
     47 of title 10, United States Code (the Uniform Code of 
     Military Justice), is amended by inserting after section 919 
     (article 119) the following:

     ``Sec. 919a. Art. 119a. Causing termination of pregnancy or 
       interruption of normal course of pregnancy

       ``(a)(1) Any person subject to this chapter who engages in 
     conduct that violates any of the provisions of law listed in 
     subsection (b) and thereby causes the termination of a 
     pregnancy or the interruption of the normal course of 
     pregnancy, including termination of the pregnancy other than 
     by live birth, is guilty of a separate offense under this 
     section.
       ``(2)(A) Except as otherwise provided in this paragraph, 
     the punishment for that separate offense is the same as the 
     punishment for that conduct under this chapter had that 
     injury or death occurred to the pregnant woman.
       ``(B) An offense under this section does not require proof 
     that--
       ``(i) the person engaging in the conduct had knowledge or 
     should have had knowledge that the victim of the underlying 
     offense was pregnant; or
       ``(ii) the defendant intended to cause the termination or 
     interruption of the normal course of pregnancy.
       ``(C) If the person engaging in the conduct thereby 
     intentionally causes or attempts to cause the termination of 
     or the interruption of the pregnancy, that persons shall be 
     punished as provided under section 918, 919, or 880 of this 
     title (article 118, 119, or 80), as applicable, for 
     intentionally causing the termination of or interruption of 
     the pregnancy or attempting to do so, instead of the 
     penalties that would otherwise apply under subparagraph (A).
       ``(D) Notwithstanding any other provision of law, the death 
     penalty shall not be imposed for an offense under this 
     section.
       ``(b) The provisions referred to in subsection (a) are 
     sections 918, 919(a), 919(b)(2), 920(a), 922, 924, 926, and 
     928 of this title (articles 111, 118, 119(a), 119(b)(2), 
     120(a), 122, 124, 126, and 128).
       ``(c) Subsection (a) does not permit prosecution--
       ``(1) for conduct relating to an abortion for which the 
     consent of the pregnant woman has been obtained or for which 
     such consent is implied by law in a medical emergency;
       ``(2) for conduct relating to any medical treatment of the 
     pregnant woman or matters relating to her pregnancy; or
       ``(3) of any woman with respect to her pregnancy.''.
       (b) Clerical amendment.--The table of sections at the 
     beginning of subchapter X of chapter 47 of title 10, United 
     States Code (the Uniform Code of Military Justice), is 
     amended by inserting after the item relating to section 919 
     the following:

``919a. Causing termination of pregnancy and termination of normal 
              course of pregnancy.''.

  Mrs. FEINSTEIN. Madam President, I agree with virtually everything 
the Senator from Ohio has said. Although there are many State laws 
which do take into consideration a fetus, it is true that the Federal 
laws, which would impact only those on Federal property, are silent. I 
am in complete concurrence with everything the Senator has said. I have 
had the privilege of working with him, so it is a delight for me to be 
able to discuss and debate this issue with him.
  The substitute amendment I have called up is on behalf of Senators

[[Page 5178]]

Bingaman, Boxer, Corzine, Kennedy and Lautenberg. I would like to make 
clearer a couple of places in that amendment.
  I ask unanimous consent to send a modification to the desk.
  Mr. DeWINE. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. FEINSTEIN. I hear the objection. I am rather surprised by the 
objection. It is generally common courtesy to allow a Senator to amend 
his or her amendment. However, I believe our amendment is clear on its 
face.
  I would like to point out that since 2000, in the Senate, there has 
been no hearing on this amendment and no opportunity for the Judiciary 
Committee to make corrections. This amendment is on the floor as a rule 
XIV.
  I am very disappointed the Senator will not allow me to make a 
modification. For the record, let me simply state that I was proposing 
a minor change designed to further clarify what I believe to be the 
clear intent and application of our amendment. The bottom line is this: 
Even without the technical changes, our amendment is clear. We include 
the same structure, the same crimes, and the exact same penalties as 
the DeWine bill.
  The only real difference between our amendment and the DeWine bill is 
that we do not attempt to place into law language defining life as 
beginning at conception--beginning with an embryo.
  Just to clarify for the purpose of giving judges more legislative 
history with which to interpret our amendment, let me be clear about 
the two provisions at issue.
  The first modification concerns section (c)(2) of our amendment which 
reads ``For medical treatment of the woman or matters relating to the 
pregnancy.'' This language simply tracks the DeWine language and the 
House bill language. I believe it is quite clear what we meant by this 
was to exempt medical treatment of the woman or any other medical 
treatment related to the pregnancy.
  The second criticism or modification was that section (c)(2) which 
applies to intentional crimes against the pregnant woman is awkwardly 
worded and thus vague. The intent of the section is also clear. Our 
amendment and the House and the DeWine bill would punish an individual 
who intentionally ends a pregnancy in accordance with the murder, 
manslaughter, or intent statutes already on the books. The level of 
penalty would be determined by a judge and would be based on the level 
of intent. For instance, punishment under the murder statute would 
require malice. Punishment under the manslaughter statute would not. 
But either way the intent is clear.
  I believe the only real reason to raise these issues is to try to 
defeat our amendment without addressing the underlying fact that our 
amendment contains the same law enforcement goals as the DeWine and the 
House bill, but without injecting a debate over a woman's right to 
choose into the equation.
  This issue is not as simple as it seems at first glance. Everyone in 
the Senate wants to accomplish the same goal--punishing those who, by 
attacking or killing a pregnant woman, deprive families not only of the 
mother but also of the joy to help raise the child yet to be born. 
Punishing those who end a pregnancy and thus end the potential life 
experience, all of the hopes and dreams embodied by that pregnancy and 
the child to come, is an important advance in Federal criminal law.
  But here is where it gets more complicated. The House bill before us, 
the DeWine bill, now takes the position in law that life begins at 
conception. This, then, involves this bill directly into a woman's 
right to choose--an issue that need not be raised and should not be 
raised in this debate.
  Although the text of the amendment itself technically provides an 
exception for abortion, experts on both sides of this issue agree the 
language in the bill will clearly place into Federal law a definition 
of life that will chip away at the right to choose as outlined in Roe 
v. Wade. I hope to make that crystal clear as I go on.
  The Philadelphia Inquirer in its editorial yesterday put it 
succinctly by saying:

       If passed and signed, as promised by President Bush, the 
     Federal law would be the first to recognize unborn children 
     at any stage of development as victims with legal rights 
     separate from those of their mothers. . . . It's so easy to 
     see how a Federal unborn victims law, coupled with unborn 
     victims laws in 29 States, will form the basis of a new legal 
     challenge to Roe v. Wade, the landmark case that gives women 
     the right to terminate certain pregnancies. If a fetus who 
     dies during a crime is a murder victim, then isn't abortion 
     murder?

  That is the Philadelphia Inquirer editorial of yesterday.
  That is why I offered this substitute amendment. I think when I am 
finished describing the differences between our amendment and the 
underlying legislation, it will become crystal clear that these two 
measures accomplish the same goal in terms of criminal justice and the 
same goal in terms of deterrence.
  The difference between the two measures--the only difference--is our 
substitute does not include a new unprecedented definition of when life 
begins.
  The bottom line is this: It is unnecessary to include a definition of 
when life begins in this legislation, and including such language 
could, and I believe will, make it much more difficult to obtain 
convictions in these cases.
  The substitute amendment I offer today essentially provides that if a 
perpetrator of an attack on a woman commits certain violent Federal 
crimes against that woman and harms or ends her pregnancy, a prosecutor 
can charge the perpetrator with the underlying Federal crime first but 
can also charge the perpetrator with harming or ending her pregnancy 
and effectively harming or killing another potential life.
  How is this different from the DeWine bill? It is not different at 
all. The DeWine bill provides exactly the same provisions. A prosecutor 
can charge two crimes--one for the underlying attack on the woman and 
one for the termination of the pregnancy. The penalties in the DeWine 
bill are identical to the penalties in our amendment.
  For instance, the DeWine bill provides that if the separate offense 
results in the ending of the pregnancy, the penalty is identical to the 
penalty for taking an adult's life. The Feinstein substitute is the 
same. The DeWine bill says the maximum penalty for ending a pregnancy 
is a life sentence, and the maximum penalty for harming that pregnancy 
is a 20-year sentence. The Feinstein substitute is the same.
  Neither bill allows for the death penalty and neither bill applies to 
conduct to which the pregnant woman has consented.
  The simple truth is this: Whichever bill passes in the end, a 
prosecutor will be given exactly the same ability to charge a 
defendant. The crimes are the same. The penalties are the same. 
Everything will be the same except a few simple words that inject the 
abortion debate into this issue by clearly establishing in criminal law 
for the first time in history that life begins at the moment of 
conception. I contend that if this result is incorporated in law, it 
will be the first step in removing a woman's right to choice, 
particularly in the early months of a pregnancy before viability.
  As we all know, the question of when life begins is a profound and a 
deeply divisive one. So I don't believe we should be addressing that 
issue here today--without a hearing since the year 2000, without expert 
testimony, and without need to do so. But, more importantly than that, 
this language unnecessarily turns a simple law into a controversial one 
and, most importantly, this language could make it more difficult for 
prosecutors to obtain a conviction for the second defense of harming or 
ending a pregnancy. I will describe why later.
  It is possible that some pro-choice jurors might refuse to convict 
simply because the language of the law refers to an unborn ``child in 
utero''--that is a quote, ``child in utero,'' that is bill language--
when the victim may have only been 1 week or even 1 day pregnant.
  An embryo in this bill becomes a person for the purpose of Federal 
criminal sanctions for the first time in America's history. That is the 
significance

[[Page 5179]]

of this bill. This substitute allows jurors to look at evidence and the 
law and it doesn't force jurors to grapple with the complicated and 
controversial issue of when life begins.
  Including language defining the beginning of life is not in any way 
necessary to the criminal law but, rather, it is only relevant to the 
abortion debate.
  Let me show you a statement that I believe reveals the clear intent 
of this bill. That statement is made by Samuel Casey, executive 
director and CEO of the Christian Legal Society. This is the intent:

       In as many areas as we can, we want to put on the books 
     that the embryo is a person . . . that sets the stage for a 
     jurist to acknowledge that human beings at any stage of 
     development deserve protection--even protection that would 
     trump a woman's interest in terminating a pregnancy.

  This will be the first strike against all abortion in the United 
States of America. This will draw back the veil and, I believe, makes 
crystal clear what this legislation actually is. This is the key to 
much of the support for this legislation: Not just adding a new 
criminal law on the books, but also defining life as beginning at 
conception in statute here and then in the future, wherever else and 
however else possible. This is a concerted effort to insert the 
definition of when life begins into the law wherever possible.
  Let me give some examples of quotes that again make this very clear. 
The intention of the antichoice community has been clearly revealed by 
a Republican strategist by the name of Jeffrey Bell. Here is how he put 
it:

       Parental notification rules don't really prohibit anything. 
     They don't ban the act of abortion. But a cloning ban--this 
     is saying that something should be illegal. And if taking 
     [unborn] human life became illegal, that would be a 
     breakthrough. Since Roe, no one has been able to do that.

  So this, Members of the Senate, is clearly the agenda, freezing the 
law, any law, in this case criminal law, that life begins at 
conception. Then, once declared legally, that law becomes the stepping-
stone to refuse embryonic stem cell research and to ban abortion. Once 
the law defines human life as beginning at conception, stem cell 
research could become murder, abortion becomes murder, even in the 
first days of a pregnancy.
  That is where this is going. Please see it. Understand it. Know it. 
Everyone in this body who believes embryonic stem cell research holds a 
promise for cures to Parkinson's, for cures to Alzheimer's, for cures 
to juvenile diabetes, for perhaps spinal cord rupture repair, will have 
to contend with a statute that has said life begins at conception. So 
embryonic stem cell research may become murder and abortion in the 
first trimester becomes murder. That is where this debate is taking us. 
That is the reason for this bill.
  The supporters of this bill will say they do not want to undermine 
Roe, but that is precisely what Nebraska State senator Mike Foley said 
when he proposed legislation to allow wrongful death suits involving 
the termination of a pregnancy. Let me quote him. Let me pull back the 
veil again:

       We said specifically in our bill that we did not want to 
     challenge Roe v. Wade, and that would not affect abortion in 
     the legal sense. But philosophically, sure, these laws are a 
     challenge . . . If a state can put someone in jail for life 
     because they took the life of an unborn child, then we're 
     clearly saying there is something very valuable there.

  Why is he saying that? He is saying that because a fetus, even at 
conception, becomes a person, becomes a human being.
  Professor R. Alta Charo of the University of Wisconsin further points 
out how these efforts are aimed at changing the law and how the Supreme 
Court might rule in future abortion cases. Charo said recently:

       If you can get enough of these bricks in place, draw enough 
     examples from different parts of life and law where embryos 
     are treated as babies, then how can the Supreme Court say 
     they're not? This is, without question, conscious strategy.

  This is a professor of law at the University of Wisconsin, pulling 
the veil back further and exposing this exactly for what it is, a 
``conscious strategy'' to say life begins at conception and enshrine it 
in this Federal law, and then other laws, and then other laws, and then 
go to the Supreme Court and Roe vs. Wade is struck down.
  In a CNN interview last May, the distinguished chairman of the Senate 
Judiciary Committee--and I have had the pleasure of serving on that 
committee for 12 years--made the following comment:

       They say it undermines abortion rights. It does undermine 
     it. But that's irrelevant. We're concerned here about a woman 
     and her child . . . The partisan arguments over abortion 
     should not stop at a bill that protects women and children.

  If that is true, then the Senator from Utah should vote for our 
amendment because our amendment does exactly the same thing, the same 
penalties for the same crimes as the House bill.
  When Justice Harry Blackmun wrote in 1973 the Roe decision, he said:

     . . . the unborn have never been recognized in law as persons 
     in the whole sense . . .

  Let me repeat that: ``the unborn have never been recognized in the 
law as persons in the whole sense.''
  What he did by saying that was actually, inadvertently provide a 
roadmap for the anti-choice people and those who want to undermine Roe 
and eventually to reverse it. This bill, the underlying bill, is 
following that roadmap by changing a criminal law in a way which 
clearly says an embryo can be an individual as a person for the 
purposes of criminal prosecution.
  Clearly, this is a concerted effort to codify in law the legal 
recognition life begins at conception. If we allow that to happen today 
in this bill or in any bill, we put the right to choose squarely at 
risk. Roe v. Wade allowed States to claim a legitimate interest in 
preventing abortion postviability. Many states--and we both know that--
have laws on the books with respect to the third trimester and even the 
second trimester.
  If the concept of viability, which means when a fetus can live 
outside of the womb, gives way to a definition that provides life 
begins at conception, we could soon see abortion in this country 
outlawed entirely. Our amendment avoids that problem and focuses only 
on the need to increase penalties for those who attack pregnant women.
  There has been a lot of discussion about the tragic Laci Peterson 
case in my State of California. I have had the pleasure of meeting with 
Laci's mother, Sharon Rocha, a very fine woman and a woman who I can 
understand is decimated by what happened to her daughter. Some in the 
Senate have suggested that this tragedy is evidence of a loophole in 
Federal law that needs to be closed.
  However, the House bill and the DeWine bill will have no impact in 
any way, shape, or form on the Laci Peterson case. The perpetrator of 
that crime will be prosecuted and punished under current California law 
and the perpetrators of almost all similar crimes through the country 
will, in fact, be prosecuted under State laws, not a Federal law, 
unless the crime takes place on Federal property.
  In my State of California, the legislature amended California's 
existing murder statute in 1970--that is 34 years ago--to read as 
follows:

       Murder is the unlawful killing of a human being, or a 
     fetus, with malice aforethought.

  Now, if this were the case, if this were written in Federal law, 
easy, I would support it in a minute because it draws a distinction, it 
permits the ``double charge'' that both Senator DeWine and I agree is 
necessary. But the use of the words ``or fetus'' makes a distinction 
between a human being and a fetus for purposes of the application of 
the homicide statute. That is important. And that is the law under 
which Laci Peterson's alleged murderer is going to be prosecuted.
  If you look at it, you will see it is completely adequate. The 
complexity of that case, which continues today, is one that relates to 
evidence and proof, not a problem with statutes or penalties. The 
California statute is wholly adequate. So the bill we discuss today 
would have absolutely no impact on the Laci Peterson case, none.
  Now, I would like to bring to the Senate's attention a July 10 letter 
from a Stanford law professor. He goes into the problems of what this 
law, if passed, could actually do in the courtroom to actual 
prosecutions and to juries. His name is George Fisher. He is a

[[Page 5180]]

criminal law expert. He is a former prosecutor. He served as an 
assistant DA, an assistant attorney general. He has taught criminal law 
at Stanford Law School since 1995, and he has founded Stanford's 
criminal prosecution unit.
  He makes three points. Let me quote him:

       The Bill's apparent purpose of influencing the course of 
     abortion politics will discourage prosecutions under any 
     future Act. I do not know what motives gave rise to the 
     Bill's use of the expressions ``child in utero'' and ``child, 
     who is in utero,'' but I do know that any vaguely savvy 
     reader will conclude that these terms and the Bill's 
     definition of them were intended by the Bill's authors to 
     influence the course of abortion politics.
       If the authors of the Bill truly seek to protect unborn 
     life from criminal violence, they will better accomplish this 
     purpose by avoiding such expressions as ``child in utero.'' 
     Better alternatives would refer to injury or death to a fetus 
     or damage to or termination of a pregnancy.

  Dr. Fisher goes on to say:

       The Bill's apparent purpose of influencing the course of 
     abortion politics will motivate prosecutors to exclude those 
     prospective jurors who otherwise would be most sympathetic to 
     the prosecution's case.
       I predict that many or most judges will bar prosecutors and 
     defense counsel from questioning prospective jurors about 
     their views on abortion or about related matters such as 
     their religion, religious practices, or political 
     affiliations. Forced to act largely on instinct, prosecutors 
     may be inclined to exercise peremptory challenges against 
     those prospective jurors who appear to be most sympathetic to 
     the rights of pregnant women. This result clearly would 
     frustrate the Bill's stated purpose of protecting unborn life 
     from criminal violence.

  He concludes:

       The Bill's apparent purpose of influencing the course of 
     abortion politics offends the integrity of the criminal law. 
     To anyone who cares deeply about the integrity of the 
     criminal law, this Bill's apparent attempt to insert an 
     abortion broadside into the criminal code is greatly 
     offensive.

  Now, that is a former prosecutor, a former assistant DA, assistant 
AG, a professor of law at Stanford Law School--one of the great law 
schools of our country--and head of the criminal prosecution unit at 
Stanford Law School.
  I ask unanimous consent to have the entire letter printed in the 
Record following my remarks.
  The PRESIDING OFFICER (Mr. Ensign). Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mrs. FEINSTEIN. Mr. President, the substitute amendment, which I have 
offered, has been crafted to avoid these problems.
  Our amendment, the Motherhood Protection Act, will accomplish the 
same goal as the Unborn Victims of Violence Act, but will do so in a 
way that does not involve us in the debate about abortion or when life 
begins. In my view, there is no reason to vote against this substitute 
unless the intention is to establish legally that human life, for the 
purposes of Federal criminal law, begins at the moment of conception 
because, ladies and gentlemen, that is exactly what this bill does.
  To emphasize the point, let me again turn to the comments of Samuel 
Casey, executive director and CEO of the Christian Legal Society, who 
clearly states the intention behind the bill in this quote:

       In as many areas as we can, we want to put on the books 
     that the embryo is a person. . . .That sets the stage for a 
     jurist to acknowledge that human beings at any stage of 
     development deserve protection--even protection that would 
     trump a woman's interest in terminating a pregnancy.

  Let there be no doubt about the intent. Anyone who is pro-choice 
cannot vote for this bill without the expectation that they are 
creating the first legal bridge to destroy Roe v. Wade.
  Now, there is a time and a place to discuss the morality and 
philosophy of when life begins. This is not that time. Now is the time 
to change our Federal law to punish criminals who would inflict 
grievous injuries or death upon pregnant women on Federal lands. So I 
urge my colleagues to support the substitute amendment.

                               Exhibit 1


                                          Stanford Law School,

                                      Stanford, CA, July 10, 2003.
     Senator Dianne Feinstein,
     U.S. Senate, Senate Hart Office Building, Washington, DC.
       Dear Senator Feinstein: I wish to express my concern about 
     the current formulation of S. 1019, the Unborn Victims of 
     Violence Act of 2003. Although I fully endorse the Bill's 
     ultimate aim of protecting pregnant women from the physical 
     and psychological trauma of an endangered or lost pregnancy, 
     I believe that the Bill's current formulation will frustrate 
     rather than forward this goal.
       I write both as a former prosecutor and as a law professor 
     specializing in criminal law and criminal prosecution. At the 
     outset of my career, I served as an assistant district 
     attorney in Middlesex County, Mass., and as an assistant 
     attorney general in the Massachusetts Attorney General's 
     office. I then went to Boston College Law School, where I 
     administered and taught in the criminal prosecution clinic. I 
     have been at Stanford since 1995 and a tenured professor of 
     law since 1999; during the next academic year, I will serve 
     as Academic Associate Dean. In 1996 I founded Stanford's 
     criminal prosecution clinic and have administered and taught 
     in the clinic ever since. I have also created a course in 
     prosecutorial ethics, which I taught at Boston College Law 
     School and, as a visitor, at Harvard Law School.
       My background and interest in criminal prosecution prompt 
     me to raise three objections to this Bill. All of them focus 
     on the Bill's use of the expressions ``child in utero'' and 
     ``child, who is in utero,'' and on its definition of these 
     terms as ``a member of the species homo sapiens, at any stage 
     of development, who is carried in the womb.''
       First: The Bill's apparent purpose of influencing the 
     course of abortion politics will discourage prosecutions 
     under any future Act.
       I do not know what motives gave rise to the Bill's use of 
     the expressions ``child in utero'' and ``child, who is in 
     utero,'' but I do know that any vaguely savvy reader will 
     conclude that these terms and the Bill's definition of them 
     were intended by the Bill's authors to influence the course 
     of abortion politics. It is a fair prediction that when a 
     pro-life President is in office, prosecutions under this Bill 
     will be more frequent than when a pro-choice President is in 
     office. That is because the public will interpret this Bill 
     as suggesting that abortion is a potentially criminal act and 
     will interpret prosecutions under the Bill as endorsing this 
     sentiment.
       If the authors of the Bill truly seek to protect unborn 
     life from criminal violence, they will better accomplish this 
     purpose by avoiding such expressions as ``child in utero.'' 
     Better alternatives would refer to injury or death to a fetus 
     or damage to or termination of a pregnancy.
       Second: The Bill's apparent purpose of influencing the 
     course of abortion politics will motivate prosecutors to 
     exclude those prospective jurors who otherwise would be most 
     sympathetic to the prosecution's case.
       If I were prosecuting a case under this Bill, I would hope 
     to have a jury that includes persons deeply sensitive to the 
     rights and interests of pregnant women. Such jurors would 
     regard an attack on a pregnant woman as being a twofold 
     crime, comprising both the injury directly inflicted on the 
     mother and the stark emotional and physical trauma resulting 
     from injury to or loss of her pregnancy.
       But such jurors also will be more likely than others to 
     believe that pregnant women have the right to exercise 
     autonomy over their bodies and to choose whether to abort a 
     pregnancy. I predict that many or most judges will bar 
     prosecutors and defense counsel from questioning prospective 
     jurors about their views on abortion or about related matters 
     such as their religion, religious practices, or political 
     affiliations. Forced to act largely on instinct, prosecutors 
     may be inclined to exercise peremptory challenges against 
     those prospective jurors who appear to be most sympathetic to 
     the rights of pregnant women. This result clearly would 
     frustrate the Bill's stated purpose of protecting unborn life 
     from criminal violence.
       Third: The Bill's apparent purpose of influencing the 
     course of abortion politics offends the integrity of the 
     criminal law.
       To anyone who cares deeply about the integrity of the 
     criminal law, this Bill's apparent attempt to insert an 
     abortion broadside into the criminal code is greatly 
     offensive. The power to inflict criminal penalties is, second 
     only to the power to wage war, the highest trust invested in 
     our institutions of government. Because the power to make and 
     enforce criminal laws inherently carries enormous potential 
     for abuse, those who exercise that power must always do so 
     with a spirit free of any ulterior political motive. The 
     American Bar Association's Standards Relating to the 
     Administration of Criminal Justice provide that ``[i]n making 
     the decision to prosecute, the prosecutor should give no 
     weight to the personal or political advantages or 
     disadvantages which might be involved. . . .'' (Standard 3-
     3.9(d).) Not all prosecutors conduct themselves with fidelity 
     to this principle, but we may readily condemn those who do 
     not. We may likewise condemn other public actors who abuse 
     the sacred public trust of the criminal sanction for 
     political ends.
       For these reasons, I object to the current formulation of 
     the Unborn Victims of Violence Bill. As I am confident that 
     an alternative version of the Bill can fully accomplish its 
     stated purpose of protecting unborn

[[Page 5181]]

     life from criminal violence while avoiding each of the 
     difficulties I have outlined above, I strongly encourage the 
     Senate to modify the Bill in the ways I have suggested above 
     or in some other manner that avoids the freighted and frankly 
     politicized terms, ``child in utero'' and ``child, who is in 
     utero.''
       My thanks to you for your consideration of my views.
           Sincerely,
                                                    George Fisher,
                                                 Professor of Law.

  Mrs. FEINSTEIN. Mr. President, how much time have I consumed?
  The PRESIDING OFFICER. The Senator has 89 minutes left.
  Mrs. FEINSTEIN. I have 89 minutes remaining?
  The PRESIDING OFFICER. Yes.
  Mrs. FEINSTEIN. I thank the Chair.
  I know the Senator from New Jersey is on the floor wishing time.
  Mr. DeWINE. He can take it now.
  Mrs. FEINSTEIN. Good. May I ask the Senator how much time he would 
like?
  Mr. LAUTENBERG. I would like to have about 10 minutes.
  Mrs. FEINSTEIN. Mr. President, I yield 10 minutes to the Senator from 
New Jersey.
  The PRESIDING OFFICER. The Senator is recognized for 10 minutes.
  The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I thank my colleague from California 
and also our distinguished colleague from Ohio.
  I rise to express my strong opposition to the underlying bill and 
support for the amendment by the Senator from California.
  I have long supported legislation that combats domestic violence. I 
was the author of the domestic violence gun ban because abusers should 
not have access to weapons, to guns. Whether an abuser is terrorizing 
his wife or his children, let's take away their means to inflict 
further terror and abuse. So far, my law has prevented nearly 30,000 
abusers from obtaining guns.
  Because of my long-term commitment to stopping violence against women 
and children, I take offense at the fact that the backers of this bill 
are exploiting this issue in order to advance another anti-choice 
agenda.
  We see this regularly around this place. I saw it in a commerce 
subcommittee meeting that was supposed to discuss science, space, and 
technology. The witnesses who were at the table were there to talk 
about their opposition to abortion and their experience after they 
themselves had abortions. They made their decisions after an action 
that they took that placed them in that position. Now they wanted to 
block everybody else from having a chance to make their personal 
choices.
  We have to understand what underlies this issue. Yes, it is 
worthwhile to protect people and those who are not yet born against 
violence, but to make it a crime of this magnitude, when there is so 
much else at stake in the matter of choice, decided many years ago by 
the Supreme Court--supporters of this bill will tell you this 
legislation protects women, protects children, and this is a bill about 
punishing crime. But if you want to know what this bill is really 
about, you only need listen to what a leading supporter of this bill 
told CNN when asked about the legislation. I quote him:

       They say it undermines abortion rights. It does . . . But 
     that's irrelevant.

  That is the prevailing attitude of those who want to impose yet 
another restriction on a woman's choice, on the protection of a woman's 
health. This bill is intended, plainly and simply, to undermine Roe v. 
Wade. But rather than being direct about the goal, anti-choice 
advocates want to use tragedies like violence against women as a red 
herring to move their agenda.
  Over and over, we see this body taking up legislation that I believe 
is part of an attempt to establish what I call a ``male-ogarchy'' in 
our society. A male-ogarchy is a society in which men are making 
decisions for and about women. Anti-choice advocates simply don't trust 
women and their doctors to know what is best for their bodies and their 
lives. We even encountered this male-ogarchy last year when this body 
told doctors and their patients that it is Congress, rather than the 
medical experts, who know best about their health. And when the so-
called partial-birth abortion bill was signed, there were all men on 
the stage with the President of the United States, smiling and gloating 
as they took away the right of a woman, in consultation with her doctor 
and her conscience, to make a decision that, though painful, is 
appropriate for her well-being.
  Do we want to decide here whether or not a woman has a right to make 
a decision about her choice for an abortion? Perhaps she has two, 
three, four other children at home and her health is in jeopardy. We 
are saying: It doesn't matter what you think, Madam. We are going to 
make the decision for you.
  That is why there wasn't one woman standing with the President at the 
White House the day that so-called partial-birth abortion prohibition 
passed the Senate, when the President signed the bill.
  President Bush and his supporters in the Senate say they care about 
domestic violence and protecting women. But if that is the case, how, 
then, do we explain the fact that the President's budget cuts funding 
for the Violence Against Women Act programs by $116 million next year? 
Is that going to help women? Is that going to make life better for 
them? No. It is going to make life worse. Those are living people. 
Those are people who were here. Those are people for whom this male 
group wants to decide, make decisions.
  If Congress wants to get serious about violence against women and 
children, let's do something real about it. Let's fund programs that 
provide money to law enforcement to prevent domestic violence and 
sexual assault. Let's fund battered women's programs and rape crisis 
centers instead of cutting funding for these often lifesaving services. 
Let's improve access to shelters, making it easier for abused women and 
their children to flee that abuse.
  If this so-called Unborn Victims of Violence Act were actually about 
violent crime, then the domestic violence community would be in support 
of it. But they oppose the bill. The National Network to End Domestic 
Violence, the National Coalition Against Domestic Violence, and the 
Family Violence Prevention Fund, all oppose this legislation.
  Many backers of this bill also support giving a $1 trillion tax break 
to the wealthiest among us, rather than giving it to the struggling 
working families who need it to help pay for everyday goods and 
services, programs such as Head Start for children who don't have a 
comfortable home life that permits them to engage in the process of 
learning or of expecting to learn, who often get their only nutritional 
meal from the program. Three hundred thousand of those children are 
denied access to these programs because we have taken away the funding 
to give tax breaks to those who have been fortunate enough to live in 
this country, to make a lot of money, to succeed.
  I am one of those. I had a good business career, as did many here. We 
don't need this kind of thing. We don't want it. We want our country to 
be strong. We want the strength to be built in a harmonious society and 
to lend a hand to those who don't have the ability to help themselves. 
But now that can't happen. We are focused on giving tax breaks to the 
wealthy and making them permanent, as we dig ourselves deeper into 
debt.
  Many of my colleagues who support this bill also reject expending 
health insurance coverage for poor and lower middle-class children and 
their families. Many who support this bill will tell you they want to 
simply protect children. I find it ironic that they only want to 
protect children before they are born, but they don't want to do what 
they have to after they are born. I see it as hypocrisy.
  I challenge supporters of this bill to get serious about protecting 
women and children and pass meaningful legislation that improves the 
lives of these women and children, not this undercover move to restrict 
choice for women.
  The PRESIDING OFFICER. Who yields time?
  Mrs. FEINSTEIN. Mr. President, I reserve the remainder of my time.

[[Page 5182]]

  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I have a great deal of respect for my 
colleagues from New Jersey and California. My colleague from New Jersey 
knows I care about what happens after children are born. I care about 
their health. I believe I have demonstrated that in the Senate. In 
fact, he and I have worked on these issues together. I have worked with 
my colleague from California on many issues having to do with children. 
We just happen to disagree on this issue.
  I have a great deal of respect for both of them. We have worked 
together on a bipartisan basis on a wide range of issues. I would hope 
that as we debate this bill, we would focus on the legislation. I say 
that with all due respect. I don't understand--again, with all due 
respect to my colleagues--what debate about the motives of people has 
to do with what the facts are.
  I am going to try to confine my debate to what I think are the 
essential facts. I think they are fairly simple. Let me talk for a few 
moments about what I believe are the essential facts.
  I ask my colleagues who are listening to this debate to remember a 
couple of things about the Feinstein amendment. I am going to keep 
coming back to these central facts about the Feinstein amendment.
  No. 1, the Feinstein amendment does not recognize a second victim. 
Our bill does. The Feinstein amendment creates a legal fiction. It is 
contorted, it twists the law in a sense--maybe a better way of saying 
it is not that it twists the law; it doesn't do that, but it twists the 
reality of the common sense of people when they look at this. When they 
see a pregnant woman who is assaulted and her child dies, they 
intuitively know there is a victim besides the mother. They know the 
mother is a victim, but they also know there is a second victim.
  The vast majority of the American people, if you ask them was there 
another victim, will say of course there are two victims. Our bill 
recognizes the second victim. The Feinstein amendment refuses to 
recognize the second victim. Now we can talk about punishment and all 
kinds of things, but it refuses to recognize good common sense.
  This bill in front of us has nothing to do with abortion. It has 
absolutely nothing to do with abortion. We have explicitly exempted 
abortion in this bill. Yet opponents still try to argue this point.
  Our statute could be no more clear on this point. Senator Feinstein 
uses identical language to exempt abortion or any related activity in 
her amendment. This bill simply doesn't affect abortion rights 
whatsoever. The language could not be clearer. I invite my colleagues 
to pick up the bill and look at the section. It exempts any reference 
to abortion, anything a mother would do to her own child, anything a 
doctor would do is exempted. It has nothing to do with abortion, not at 
all. That is not what this is about.
  Point No. 1, this bill recognizes a second victim; the Feinstein 
amendment does not. If you believe there is a second victim, you cannot 
vote for the Feinstein amendment. It denies there is a second victim.
  The second point I want to make will come as a surprise, I think, to 
the Members of the Senate. It will come as a surprise to you until you 
pick up the Feinstein amendment and read it carefully. I invite you to 
do that. Pick up the amendment and read it carefully.
  First, the Feinstein amendment does not punish the criminal for 
harming or injuring the baby. Let me read it. It only punishes the 
criminal for ``interrupting or terminating a pregnancy.'' That is the 
language, ``interrupting or terminating a pregnancy.'' But not for 
injuring. So if a child is injured, not killed, the pregnancy not 
terminated, the Feinstein amendment will not cover it. That, to me, is 
a problem. That is a fatal fallacy, fatal problem.
  Here is the language:

       Any person who engages in conduct that violates any of the 
     provisions of law listed in subsection (b) and thereby causes 
     the termination of a pregnancy or the interruption of the 
     normal course of pregnancy, including termination of the 
     pregnancy other than by live birth is guilty of a separate 
     offense under this section.

  It does not cover the injury of a fetus. That is a problem.
  Let's turn to the penalty section. The penalty section is fatally 
flawed. The penalty section won't work. The Justice Department has sent 
a letter and, in their opinion, the penalty section provides no 
penalty, under the Feinstein amendment, for the killing of the fetus. 
It is vague; it is unclear at best. It defines additional crimes as the 
interruption or termination of a pregnancy. When it describes the 
punishment, it refers to injury or death. Whose injury or death are we 
talking about here? Is it the unborn child? Whose injury?
  The Feinstein amendment doesn't recognize that the interruption and 
termination of the pregnancy means the injury or death of the fetus 
because it won't acknowledge the fetus, of course, as a separate being.
  The amendment is circular and really without meaning. Put simply, 
there is no additional punishment because under this amendment there is 
no additional victim. The Feinstein amendment goes out of its way not 
to recognize another victim. What is the reference to? Let me read this 
section and, again, this is a technical reading, but that is how you 
have to read a criminal section. This is how judges have to do it. The 
bottom line is--I am going to say it again and again--if you vote for 
Feinstein, there will be no penalty at all for the killing of a second 
victim, the child. There clearly is none for the injury of that child. 
Let me read the penalty section, 2(a), under the Feinstein amendment:

       Except as otherwise provided in this paragraph, the 
     punishment for that separate offense is the same as the 
     punishment provided for that conduct under Federal law had 
     that injury or death occurred to the pregnant woman.

  What injury or death are we talking about? To whom?
  The language doesn't acknowledge injury or death to the fetus. Who is 
it referencing in the previous paragraph? It clearly is fatally flawed. 
It is difficult for me to read this and for people to understand it. 
But to get the section out, it clearly doesn't work and is fatally 
flawed. So this does not recognize the death, does not recognize any 
punishment. It would not provide punishment and it clearly presents a 
problem.
  My friend from California has said the DeWine bill would have no 
effect on the Laci Peterson case. That is true; it would not. 
Fortunately, California has a similar law that provides for a second 
victim, the punishment for the death of that child. While it is true 
the DeWine bill would have no effect on the Laci Peterson case, the 
fact is if the Feinstein amendment, or a similar amendment to the 
Feinstein amendment, had been approved by the California legislature at 
the time their law was being considered, there would be no punishment 
for the death of baby Conner Peterson. There would have been in 
California no recognition for that second victim. There would have been 
no recognition of the death of that second victim.
  If the Feinstein amendment would have passed, or a version of it, in 
California, if the California legislature would have done what Senator 
Feinstein is asking us to do today in this Federal legislation, they 
would not have been able to prosecute for the death of Conner Peterson. 
They would not have been able to recognize that death as a second 
victim death. That is the fundamental fact, and that is the fundamental 
difference between the DeWine bill and the Feinstein amendment.
  We have heard a lot of talk about motives and agendas. I think we 
should stop doing that, and I think we should look to the victims and 
hear from the victims. There are three victims. The families of the 
victims were here yesterday. When one talks with the victims, it is 
clear the victims believe there are two victims. Let me talk about 
several cases. They are tragic cases and are difficult to listen to, 
but I think it brings home what we are really talking about.
  Let me talk about the example of Airman Gregory Robbins. This is a 
case about which I have talked many times on the Senate floor, but I 
think is

[[Page 5183]]

worth repeating today because it illustrates the injustice that exists 
today in our Federal law.
  In 1996, Airman Robbins and his family were stationed in my home 
State of Ohio at Wright-Patterson Air Force Base in Dayton. At that 
time, Mrs. Robbins was more than 8 months pregnant with their daughter 
they named Jasmine. On September 12, 1996, in a fit of rage, Airman 
Robbins wrapped his fist in a T-shirt and savagely beat his wife by 
striking her repeatedly about the head and stomach. Fortunately, Mrs. 
Robbins survived this violent assault, but tragically, her uterus 
ruptured during the attack, expelling the baby into her abdominal 
cavity, causing Jasmine's death.
  Does anyone truly think Jasmine was not a victim? I think we know she 
was. Not only was her mom a victim, but she was as well.
  Let me give another example. In August 1999, Shiwona Pace of Little 
Rock, AR, was days away from giving birth. She was understandably 
thrilled about her pregnancy. Her boyfriend, Eric Bullock, however, did 
not share her joy and enthusiasm. In fact, Eric wanted the baby to die. 
So he hired three thugs to beat his girlfriend so badly that she lost 
the unborn baby whom she named Heaven. I might add, she lost that baby 
1 day shy of her predicted delivery date. Shiwona testified at a Senate 
judiciary hearing we held in Washington on February 23, 2000. This is 
what she said:

       I begged and pleaded for the life of my unborn child, but 
     they showed me no mercy. In fact, one of them told me, ``Your 
     baby is dying tonight.'' I was choked, hit in the face with a 
     gun, slapped, punched, and kicked repeatedly in the stomach. 
     One of them even put a gun in my mouth and threatened to 
     shoot.

  Do we really believe Shiwona was the only victim here? Do we really 
think we should adopt an amendment that says she was the only victim? I 
don't think so. How can we suggest to Shiwona that her child was not 
murdered? Should we twist the law so we don't recognize that? I don't 
think we should. And Federal law, quite frankly, must recognize this 
wrong for what it is. It is a wrong against two separate and distinct 
victims.
  Another example: I can think of no better way to tell the story of 
Baby Zachariah and his mother Tracy Marciniak than by simply reading 
from her testimony before the House Judiciary Subcommittee on the 
Constitution which occurred on July 8, 2003. Let me read it:

       I carried Zachariah in my womb for almost nine full months. 
     He was killed in my womb, only 5 days from his delivery date. 
     The first time I ever held him in my arms, he was already 
     dead.
       There is no way that I can really tell you about the pain I 
     feel when I visit my son's grave site in Milwaukee, and at 
     other times, thinking of all that we missed together. But 
     that pain was greater because the man who killed Zachariah 
     got away with murder.
       Zachariah's delivery date was to be February 13, 1992. But 
     on the night of February 8, my own husband brutally attacked 
     me at my home in Milwaukee. He held me against a couch by my 
     hair. He knew that I very much wanted my son. He punched me 
     very hard twice in the abdomen. Then he refused to call for 
     help, and prevented me from calling.
       After about 15 minutes of my screaming in pain that I 
     needed help, he finally went to a bar and from there called 
     for help. Zachariah and I were rushed by ambulance to the 
     hospital, where Zachariah was delivered by emergency 
     Caesarean section. My son was dead. The physicians said he 
     had bled to death inside me because of blunt force trauma.
       My own injuries were life-threatening. I nearly died. I 
     spent 3 weeks in the hospital. During the time I was 
     struggling to survive, the legal authorities came and they 
     spoke to my sister. They told her something that she found 
     incredible. They told her that in the eyes of Wisconsin law, 
     nobody had died on the night of February 8. Later, this 
     information was passed on to me. I was told in the eyes of 
     the law, no murder had occurred. I was devastated.
       We surviving family members of unborn victims of violence 
     are not asking for revenge. We are begging for justice--
     justice like we were brought up to believe in and trust in. 
     Justice means that the penalty must fit the crime, but that 
     is only part of it--justice also requires that the law must 
     recognize the true nature of a crime.

  The true nature of a crime, Mr. President.

       I know that some lawmakers and some groups insist there is 
     no such thing as an unborn victim, and that crimes like this 
     only have a single victim--but that is callous and that is 
     wrong. Please don't tell me that my son was not a real victim 
     of a real crime. We were both victims, but only I survived.

  I will have more to say about this in a few minutes. At this point, I 
yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, may I briefly suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. I thank the Chair.
  Mr. President, I wish to respond to some of the concerns and 
complaints of the distinguished Senator from Ohio about our substitute 
amendment. Let me take on his allegation that this substitute does not 
provide a punishment for harming a child. In fact, it does. It clearly 
states that the interruption of the normal course of the pregnancy 
relates to injury to the fetus. So there is a penalty for harm.
  Secondly, he stated my amendment would not provide any penalty for 
ending a pregnancy; that it was a legal fiction in that sense.
  I think this is clearly a misunderstanding of the plain text of our 
amendment. We explicitly create a separate offense for interrupting or 
ending a pregnancy, and we explicitly state the penalty for that 
offense is the same as if the crime had resulted in the injury or death 
of a mother. That is explicit.
  So the intent is clear. I think quibbling about whether the language 
is perfect, the amendment does exactly what the underlying bill does. I 
could have cleared that up with a modification, but the Senator would 
not let me send a modification to the desk, which in terms of just 
sheer congeniality is rather surprising because that could have been 
made crystal clear to everyone.
  So I firmly believe our amendment does exactly the same thing as the 
DeWine amendment, but it does not do something his amendment does, and 
that is create life at the point of conception. His use of the words 
``child in utero'' as opposed to the California statute's use of the 
words ``or fetus'' make a huge difference in the law legally. Once 
again, I think that is clear.
  The bottom line is we believe the intent and the crafting of this 
bill is very clear. We do not create a child in utero. We try to avoid 
getting to the point where life is defined.
  We say that if the pregnancy is intentionally terminated and specific 
damages are done to the fetus, it is punished either through 
manslaughter in a second charge or murder in a second charge. I think 
the language is very clear. I think it is nitpicking to say it is not.
  I can change it, but I am not allowed to change it. We have the 
modification, but we are not allowed to send the modification to the 
desk. I believe Members can vote on this amendment and know clearly 
they are assessing the same penalties for the same crimes as the 
underlying bill does. The only difference is we do not decide in our 
bill when life begins.
  Let me read a couple of editorials and statements that have come out 
in recent days. There is one editorial this morning in the Los Angeles 
Times. I would like just quickly to read one paragraph:

       The Senate is likely to vote today on a bill intended 
     largely to score points in the endless, wearying abortion 
     debate. The proposed Unborn Victims of Violence Act defines a 
     child in utero as a member of the species homo sapiens, at 
     any stage of development, who is carried in the womb. In 
     other words, the child exists at the moment of conception. 
     The House passed similar legislation last month. As with 
     nearly every aspect of the abortion debate, Americans are 
     deeply divided over when human life begins. However courts in 
     most States generally accord more rights to a fetus 
     considered viable outside the womb. DeWine's bill, S. 1019, 
     offers a sweeping declaration that ignores prevailing 
     scientific views and the national legal consensus. True, his 
     bill specifically

[[Page 5184]]

     bars prosecution for abortion, but its effect, as DeWine 
     intends, would be to give one side a new legal bullet in the 
     broader abortion wars.

  That is clear. I will go on. The Los Angeles Times is not the only 
editorial page that believes that. I indicated earlier this is true of 
an editorial in the Philadelphia Inquirer:

       It is so easy to see how a federal unborn victims law, 
     coupled with unborn victims' laws in 29 States, will form the 
     basis of a new legal challenge to Roe v. Wade, a landmark 
     case that gives women the right to terminate certain 
     pregnancies. If a fetus who dies during a crime is a murder 
     victim, why, then, isn't abortion murder?

  From the Buffalo News:

       Passage by House Republicans of a bill that treats an 
     attack on a pregnant woman as separate crimes against her and 
     her unborn child is at heart an attempt to erode abortion 
     rights. It's a disingenuous and misguided bill and the Senate 
     should make sure it goes no further.

  That is the Buffalo News.
  The New York Times, April 25. This is 2001.

       Packaged as a crime fighting measure unrelated to abortion, 
     the bill is actually aimed at fulfilling a long-time goal of 
     the right-to-life movement. The goal is to enshrine in law 
     the concept of fetal rights equal to but separate and 
     distinct from the rights of pregnant women.

  Another editorial of the New York Times:

       The bill would add to the Federal Criminal Code a separate 
     new offense to punish individuals who injure or cause death 
     to a child who is in utero.

  The Washington Post, October 2, 1999,

       What makes this bill a bad idea is the very aspect of it 
     that makes it attractive to its supporters, that it treats 
     the fetus as a person separate from the mother though that 
     same mother has a constitutional right to terminate her 
     pregnancy. This is useful rhetorically for the pro-life 
     world, but it is analytically incoherent.

  The Blethen, ME, newspaper:

       First considered in 1999, the bill purports to create new 
     Federal crimes for the intentional harm or death of a fetus 
     or unborn child. But, no matter how much supporters deny it, 
     the bill's real intent is to undermine women's reproductive 
     choices. If the bill is passed and signed into law, it would 
     weaken the prudent and pragmatic decision handed down in Roe 
     v. Wade.

  In my remarks, I have tried to show that this is a concerted effort. 
It need not be so. You can attach the same penalties for the same 
crimes, as our substitute does, without getting into the debate of 
where life begins. This bill chooses to get into the debate of where 
life begins and it defines life beginning at conception. It does so in 
a Federal criminal statute. It is one step in the building blocks of 
statutes that will constitute the ability to demolish Roe v. Wade.
  I think every Member of this body who is pro-choice should vote 
against the underlying bill and for this amendment because in this 
amendment, without creating the separate person at conception, we 
establish the penalties for interruption or termination of a pregnancy. 
Those penalties are the same--same for murder, same for manslaughter, 
same for attempted murder, same for attempted manslaughter.
  Again, I point out that in California what the State did 34 years ago 
was essentially amend the murder statute. By amending the definition in 
the Penal Code section 187, they provided a new definition of murder 
which said:

       Murder is the unlawful killing of a human being, or a fetus 
     with malice aforethought.

  That is the bill under which the Laci Peterson case will be brought 
to court. It is a different idea because it clearly says that it is a 
fetus.
  Additionally, there is information from those who wish to continue 
this pursuit to make a fetus a human life, to make an embryo a human 
life, that this is a concerted strategy aimed at weakening Roe v. Wade.
  What we have tried to do is mimic the House bill with respect to the 
penalties but connect it to the termination of a pregnancy and thereby 
avoid the distinction of exactly when life begins for the purposes of 
statute law, in this case criminal statute law, and therefore avoid the 
problem.
  I have indicated, from legal scholars, where they believe this will 
undermine prosecutions in this situation because they will encourage 
peremptory challenges of individuals who may have strong beliefs in 
choice and, therefore, not one likely to recognize that an embryo, or a 
day pregnancy, or a week pregnancy, or a month pregnancy is, in fact, a 
living being subject to criminal sanctions if their rights are 
violated.
  It is a complicated issue. But it is a significant issue. It is an 
important issue.
  The more I look at it and see the strategy of the anti-choice 
movement, the more I see that if you can establish a beachhead of 
rights in Federal criminal law here, and another statute there, and in 
a third statute somewhere else, you then begin the march to the Supreme 
Court in an attack on Roe. Roe sets up a trimester system giving the 
woman total rights in the first trimester, and then the State the right 
in the second and third trimester to intervene in certain cases, which 
has been the case in many State laws that have been passed. You now 
give the Supreme Court the ability to begin to say: ``It is in law that 
the embryo has certain rights'' and, therefore, forms the bulwark of 
the attack on Roe.
  You also do something else insidious. I think you very much intervene 
in stem cell research. Stem cell research, and a good deal of the most 
auspicious of that research, deals with embryonic stem cells. If you 
have a law that says an embryo or a zygote is, in fact, a human life, 
then it is murder if you use that embryo for stem cell research, just 
as it becomes murder if that embryo is harmed or rejected in the course 
of an attack on a woman. We avoid all of that.
  We simply say termination of a pregnancy, and termination of a 
pregnancy in the course of a criminal attack creates a second charge, 
and that second charge carries with it the same penalty as the original 
charge against the woman herself would carry.
  That is the clear intent.
  I regret that the Senator would not allow me to modify my amendment. 
I can never in 12 years remember any Senator being refused the right to 
modify an amendment, but perhaps we are playing by new rules these 
days. I know what goes around comes around in this body. I regret that.
  But I believe on its face our substitute amendment is clear, it is 
definitive, it will stand the test of time, and it will prevent what we 
hope to prevent, which is the first major law which decides when life 
begins.
  I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Ohio.
  Mr. DeWINE. Madam President, once again, I want to bring this debate 
back to its essence. I am afraid so much of the debate from the other 
side has been about motives--by quoting, with all due respect, the L.A. 
Times about peripheral issues.
  Our intent, if you want to go by intent, is very simple. Our intent 
is to bring about justice for the victims of crime. Our intent is to 
bring about justice for the mother and for the child--for the unborn 
child as well as the mother. It is to conform with what the vast 
majority of the American people believe; that is, when a pregnant woman 
is assaulted and she either loses that child or that child is injured, 
there are, in fact, two victims. It is as simple as that.
  On the abortion issue, let us be done with this once and for all. 
This bill has nothing to do with abortion. The language could not be 
simpler.
  Let me read to the Members of the Senate and invite anybody to read 
it.

       Nothing in this section shall be construed to permit the 
     prosecution of any person with conduct relating to abortion 
     for which consent of the pregnant woman or a person 
     authorized by law to act on her behalf has been obtained or 
     for which such consent is implied by law.
       Two, of any person for medical treatment of the pregnant 
     woman or her unborn child, or of any woman with respect to 
     her unborn child.

  It is very clear. My colleague argues that this language is going to 
somehow roll back abortion rights. That is a debate for another day. It 
is not a debate for today. That language in this bill is very clear.
  If this language was a threat to abortion rights, then the language 
in 29 other States would have been a threat.

[[Page 5185]]

We have 29 States that recognize fetal homicide law. The language in 16 
of those States is virtually identical to the language in this bill.
  If the language in this bill was a problem for abortion rights, then 
it would have been a problem with these other States.
  Also, there are some States that have had this language on the books 
for 30 years, and it has not been a problem for abortion rights.
  That is just a bogus issue. Let us stop talking about it, and let us 
talk about what the issues are.
  Let me get back to the two points that I made before. I want everyone 
to understand the Feinstein amendment. One is not in debate, and one my 
colleague and I do debate. One I think is not in debate at all; that 
is, the Feinstein amendment does not recognize a second victim. It goes 
against good common sense.
  Ask someone back in your home State, if a pregnant woman is assaulted 
and she loses her child, how many victims are there? There are two. If 
you ask the average person in your State--whether your State is Ohio, 
California, wherever it is--the average person on the street is going 
to say: Senator, there are two victims.
  That is all we are saying with this bill. We are trying to close a 
loophole so that if a pregnant woman who is hiking in a national park 
or is out walking in a national park or a pregnant woman on an Air 
Force Base--we are not making these stories up. This happens. Pregnant 
women are attacked all the time. I saw it as a county prosecutor. You 
ask any county prosecutor--yes, any police officer, anybody who is a 
victims rights advocate--how often pregnant women are attacked, a 
pregnant woman who is in a national park, a pregnant woman who is on 
Federal property and is attacked. What we are simply saying is that it 
is wrong if a national park or Federal property is in a State that does 
not have a similar law to this. It is wrong for that Federal prosecutor 
searching in vain the Federal statutes to find a law for which he can 
charge that person with the death of a fetus, a child--whatever word 
you want to use. It is wrong. That happens today. We are closing that 
loophole.
  When this law passes, that won't happen anymore. A Federal prosecutor 
will be able to say, when law enforcement people come in and they have 
that case where a woman has been violently attacked, she has been 
injured but the child has been killed, they will be able to charge for 
death of that child. That is the right thing to do. They will be able 
to file two charges, recognize two victims, and recognize that reality. 
That is what this does.
  Let me state the second thing about the Feinstein amendment. Look at 
the amendment.
  We have to go to the penalty section. This is the Feinstein 
amendment.

       Except as otherwise provided in this paragraph, the 
     punishment for that separate offense is the same as the 
     punishment provided for that conduct under Federal law had 
     that injury or death occurred to the pregnant woman.

  Remember, this is a criminal law. I go back to my days as a 
prosecutor: You have to construe a law strictly. When it is a criminal 
law, you construe it in favor of the defendant. You give every benefit 
of the doubt to the defendant. If this is vague, there is a problem for 
the prosecutor. We have a problem with this one. A serious problem.
  We have a letter from the Justice Department that says there is no 
penalty under the Feinstein amendment. Let's look at this carefully and 
see why: ``Except as otherwise provided in this paragraph, the 
punishment for that separate offense is the same as that punishment 
provided for that conduct under Federal law had that injury or death 
occurred to the pregnant woman.''
  What injury or death? The problem under the Feinstein amendment is it 
does not recognize the baby or fetus. Who are we talking about? Read 
this section above. It talks about ``termination of a pregnancy or the 
interruption of the normal course of pregnancy.'' It does not recognize 
two assaults, two injuries, two people. There is nothing for it to 
reference to. With all due respect, it is not drafted right. If we pass 
the Feinstein amendment, with all due respect, not only are you not 
recognizing a separate victim--which we all agree on--but, worse than 
that, there is no penalty for killing the unborn; there is no penalty 
for injury.
  I have already pointed out, and we looked at the language, why there 
is no penalty at all for injury. That is clear when we look at this: 
``causes the termination of a pregnancy or the interruption of the 
normal course of pregnancy, including termination of the pregnancy 
other than by live birth,'' et cetera.
  Clearly, that is no reference to the injury. What word here has to do 
with injury? Nothing. Clearly, this has nothing to do with injury. Any 
child who is injured, not killed, would not be covered. And in the 
paragraph below, there is no penalty at all.
  If we get by that, which we cannot, but even if you get by all of 
that, you have the problem of the lesser included offense. We cannot 
get by that. But take one more problem, assuming you could get by that. 
There is another reason the Feinstein amendment fails to create a 
separate punishable offense to terminating pregnancy. All it does is 
recognize attacks on an unborn child under the label of ``interruption 
or termination of pregnancy,'' then tacks that label on as an element 
to any one of the 68 Federal crimes specified. The result is a new 
series of offenses identical to the previous 68, except for the 
addition of that one element.
  For example, now a criminal could face a Federal charge of assault 
with the result of termination of pregnancy as well as the original 
charge of assault. This is important. But because he could be charged 
with both does not mean he could be convicted and punished for both. 
Instead, he would be protected by a legal principle known to lawyers as 
lesser included offenses. That principle protects a defendant from 
being convicted in and punished for a whole series of crimes that are 
all a subset of a lesser crime.
  We know, for example, the crime of manslaughter and murder. We know 
one defendant cannot be convicted of both charges for the death of only 
one victim. If someone is guilty of murder, then he or she must have 
been guilty of all the components of murder, including the components 
that made him guilty of manslaughter, but that person, of course, is 
not convicted of both. You cannot be convicted of both manslaughter and 
murder. If a man is convicted of a felony for stealing $10,000, he is 
not also found guilty of the misdemeanor of having stolen $500.
  Of course, we can convict one criminal of the murder and manslaughter 
of two separate people because the laws of these crimes differ on one 
critical point: They have different victims. That is the difference 
between our bill and Senator Feinstein's amendment. Ours does not have 
that problem because we recognize two victims. Her amendment does not. 
Therefore, it is fatally flawed under this principle. Therein lies 
another problem.
  The bottom line is the Feinstein amendment is fatally flawed. It has 
no penalty section, as well as not recognizing there is a separate and 
distinct victim.
  The Justice Department analyzed and came to the same conclusion. 
Again, it is a vague amendment. They come at it a little differently, 
but here is what they say in a letter of March 24:

       Additionally, by omitting any reference to the unborn child 
     but retaining language contained in H.R. 1997 as introduced, 
     the substitute appears to create an ambiguity that likely 
     leaves an offense, could one be found, without a 
     corresponding penalty. The substitute provides that 
     punishment for an offense prescribed by the legislation is 
     the same as the punishment provided under Federal law had the 
     ``injury or deaths occurred,'' to the pregnant woman.
       In H.R. 1997, the object of the ``injury or death'' was the 
     unborn child. However, in the substitute the injury or death 
     provision has no object because the only victim under the 
     substitute is the woman herself. Because there are currently 
     no penalties in federal law for the offenses of ``termination 
     of a pregnancy,'' or ``the interruption of the normal course 
     of pregnancy,'' there would be no penalty even assuming that 
     a successful prosecution could be brought.


[[Page 5186]]


  They have analyzed it a little differently than I did, but they come 
to the identical conclusion for the same reason. Again, it goes back to 
this sentence in their letter, ``However, in the substitute, the injury 
or death provision has no object because the only victim under the 
substitute is the woman herself.''
  That is the problem. That is what we have.
  Members who come to the Senate and vote on this Feinstein amendment, 
which is the key vote, need to understand three things: One, abortion 
has nothing to do with this debate. We have covered that in the 
language of the bill. But more important is the precedent in the States 
has already been set. States have bills like this. They have not 
interrupted people's rights under the Supreme Court in regard to Roe v. 
Wade and all the other court decisions. It has not interrupted rights 
having to do with abortion. It has nothing to do with abortion. That is 
No. 1.
  No. 2, the Feinstein amendment fails to recognize what everybody in 
this country knows: When a woman is attacked, there are two victims.
  And No. 3, the thing to remember is the Feinstein amendment carries 
no penalty. So we will be saying if the Feinstein amendment is passed, 
we are turning our backs on these victims. We are turning our backs on 
the unborn, these kids who are, in fact, injured or killed.
  I yield the floor.
  Mr. TALENT addressed the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. DeWINE. Madam President, I yield to my colleague.
  Mr. TALENT. Two or three minutes?
  Mr. DeWINE. Yes.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. TALENT. Madam President, I very much appreciate the Senator 
yielding and also the courtesy of the Senator from South Carolina who, 
I know, was expecting to go next. For that reason, I am going to be 
very brief.
  I want to say a few words about what I understand us to be doing 
today and the importance of it. As I understand it, what we are doing 
today is conforming Federal law to the common understanding of people 
around the country, and certainly in the heartland where Missouri is 
and, indeed, the practice of most of the States.
  If a man takes a woman across State lines--let's say she is his 
girlfriend, and she has gotten pregnant, and he does not like that 
fact--and he assaults her, hits her in the stomach or something, with 
the intention of getting rid of the baby, and his act of violence has 
the intended effect and the baby dies, what we are saying is he has 
claimed two victims. He has hurt mom, or maybe done worse to her, and 
he has killed the baby, which is what his intention was to do.
  I think all of us recognize the seriousness of that kind of offense 
and acknowledge that an offense like that against a pregnant woman, and 
directed at the baby, is more serious because of the status of 
pregnancy and because of the existence of that child than it would 
otherwise be.
  So far I think we are agreed. My friend, the Senator from California, 
wants to call that second offense the ``interruption'' of a pregnancy 
rather than the claiming of the life of a child.
  I appeal to the Senate, and to the country, through the Chair, and 
ask what our understanding is, what our instinctual reaction is to that 
kind of a crime.
  When a woman loses a child in that kind of instance, she has not lost 
a pregnancy, she has lost a child.
  Earlier in our marriage, my wife had several miscarriages. She did 
not think of it as losing a pregnancy. She lost children. That is why 
people have memorial services sometimes--often--in cases like that. 
That is why they go through a grieving process. That is why they may 
get counseling.
  I do not see why, with the greatest respect to the substitute 
amendment and to the Senator from California, why we cannot conform 
Federal law to that common understanding. I think we should.
  I understand the sensitivity on the issue of abortion. I really do. I 
think the Senator from Ohio and the Senator from South Carolina have 
tried to structure this bill to avoid those sensitivities. It is hard 
to do.
  But just because--for overriding reasons of public policy that some 
here adhere to very strongly--we cannot recognize the status of this 
child when mom, for reasons that she thinks are justified, believes she 
must end the pregnancy, it seems to me, it does not mean we cannot 
accord the child the dignity of the status of a human being when the 
child has been the victim of a vicious act of violence against both mom 
and the child.
  I thank my friend again for allowing me to intervene for a moment. I 
yield the floor.
  Mr. DeWINE. Madam President, I yield to the Senator from South 
Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Madam President, I thank the Senator 
for yielding. I may take a few minutes, I say to the Senator from 
Kansas, to explain my relationship to this bill and why I am here 
today.
  No. 1, I want to thank the leadership for allowing the bill to come 
to the floor. Senator Frist and Senator McConnell and our leadership 
team has worked hard with Senator Daschle to get an agreement so we 
could come to the floor and debate what I think is an important issue, 
and to allow Senator Feinstein to have her say about how we should 
craft this bill.
  In July 1999, this bill was first introduced in the House. I was the 
author of the bill. Before I came to Congress, I spent some time in the 
Air Force. Senator DeWine has taken the cause up in the Senate since it 
was first introduced. I really appreciate all that Mike has done. He 
has been very sympathetic to what we are trying to do. He was leading 
the charge in the Senate as this bill was being debated and voted on in 
the House.
  But prior to getting into politics, from 1982 to 1988, I served as a 
prosecutor and a defense attorney in the U.S. Air Force domestically 
and overseas. During that experience, I realized at the Federal level 
there was a gap in law.
  We had a case involving a pregnant woman who was beaten up, and her 
child was lost, and she was almost killed. I looked into the idea of 
charging the offender with the damage done to the unborn child, and 
under the Uniform Code of Military Justice there was no way to do that. 
So I was sensitive to it from a prosecutor's point of view early on in 
my legal career.
  When I got to Congress, there was an effort in some States to create 
unborn victims statutes, and I associated myself with that effort 
federally. A lot of pro-life people came over and were very supportive 
of what we are doing. That is true. Pro-life people generally like the 
idea of protecting unborn children whenever they can.
  Pro-choice people are very sensitive to the fact that a woman should 
decide what to do with her body in an intimate situation like a 
pregnancy. I understand that debate clearly.
  I am a pro-life person, so I have biased there. But having said that, 
there are pro-life people who hate this bill. It surprised me, but it 
is true, because in the bill, we wrote it in a way that abortion is not 
covered at all. As a matter of fact, we preserve, under the current 
law--under this bill--the right to have a legal abortion, and you 
cannot prosecute the mother under any circumstances.
  There are cases out there where mothers are being prosecuted who 
abuse drugs and alcohol and do damage to their children. What I wanted 
to do was to focus on what I thought we all could agree on, to a large 
extent. The law in abortion and the politics of abortion really do not 
play well here because we are talking about criminal activity of a 
third party. I do not know why you would want to give a criminal any 
more breaks than you had to if they go around beating on pregnant 
women.
  And people say: Well, don't they have to know if the woman is 
pregnant? No.

[[Page 5187]]

Why? The law is really common sense. If you attack a woman of 
childbearing years, you do so at your own peril. If you push somebody, 
you do not know if they have a severe medical condition. You are liable 
for the consequences of your actions.
  There are plenty of cases that say, if you attack a woman of 
childbearing years, you do not have to have actual knowledge. You are 
responsible for the consequences of your illegal act.
  In a poll, when people were asked, if a violent, physical attack on a 
pregnant woman leads to the death of her unborn child, do you think 
prosecutors should be able to charge the attacker with murder for 
killing the fetus, 79 percent said yes; 69 percent of pro-choice 
people, in that poll, said yes.
  Why would a pro-choice person support this legislation? It passed 
three times in the House. The first time we had it up for a vote was 
September 30, 1999, I believe. Madam President, 254 folks voted for the 
bill in the House, as I recall. I assure everyone listening to my voice 
today, there are not 254 pro-life people in the House. Madam President, 
52 Democrats have voted for this bill.
  The parties tend to split on the issue of abortion, with the 
Democratic Party being more pro-choice and the Republican Party being 
more pro-life. But we had Democratic support, and we had pro-choice 
people supporting this idea that when it comes to criminal activity, we 
are going to define the unborn in terms that make it hard on the 
criminal--not hard on the mother.
  You can never prosecute a woman for anything she does to her child, 
no matter how much you would like to, under this bill. I did not want 
to get into that debate. You can never ever prosecute anybody for 
receiving medical treatment related to their pregnancy or lawful 
abortion.
  For over 30 years, in the State of California, two things have 
coexisted: the Roe v. Wade rights of a woman and a statute that will 
allow you to do what is happening in California today--prosecute a 
person for doing damage to the mother and the unborn child, such as the 
Laci Peterson case.
  This has been a long journey. This July will be the fifth anniversary 
of the time that I introduced this bill. Back in 1999, I remember 
saying on the floor of the House there will be a case where a pregnant 
woman is brutalized and she loses her child and it will be front-page 
news.
  The reason I said that then is, having been a prosecutor and a 
defense attorney, I understand the following: There are a lot of good 
people in this world, but there are some mean people, too. This happens 
more than you would ever want to believe. The No. 1 cause of death 
among pregnant women in the District of Columbia is murder. As much as 
we would like to believe otherwise, pregnant women have things come 
their way because of their pregnancy that shocks the conscience.
  In Arkansas, there are three people sitting on death row today 
because they were hired by the boyfriend, who didn't want to pay child 
support, to kidnap his girlfriend, who wanted to have the child, took 
her off to a remote area and beat her within an inch of her life with 
the express purpose of killing the child. And when she was on the 
floor, she begged for two things: Her own life and her baby's life. 
Those people under Arkansas law were charged with two crimes, making 
them eligible for the death penalty. They deserve to be.
  Under this bill, you cannot get the death penalty. The reason I chose 
not to include the death penalty is, I did not want to get into the 
death penalty debate because people of goodwill and good reasoning may 
disagree with the State imposing that punishment. The Senator from 
California cares as much about pregnant women as anybody here. This is 
not about who cares about women and who is trying to do this or that. 
Her amendment may not be written the way she would like. I would oppose 
it, if it was changed.
  It happens in America more times than you would ever believe that 
pregnant women are the victim of violent assault and their children get 
killed or severely injured.
  That concept can and does exist with the idea that a woman, early on 
in the pregnancy, can choose whether to carry that child. These are two 
concepts the law recognizes that exist side by side.
  Why do 84 percent of the people believe a criminal should be 
prosecuted twice, not once? Because it really does violate common 
decency. If a woman chooses to have a baby and she loses her baby 
because of a violent act, most of us, a large percentage of us, want to 
whack the person who did it as hard as we can. And we don't want to get 
into the debate about abortion. We want to make sure the prosecutor has 
the tools to bring about the most severe and just verdict possible.
  This bill excludes abortion. It excludes the death penalty for 
political reasons and legal reasons. Pro-life people have criticized me 
because in this bill, in their opinion, I am legalizing abortion. This 
bill doesn't legalize abortion. This bill doesn't ban abortion. This 
bill says: If you are a criminal and you attack a pregnant woman and 
you hurt her kid, you will get the full force of the law.
  What is going on in California? In 1999, when I said there will be a 
woman out there who suffers brutally and loses her child and we will 
all know about it because it will be front page news, I never dreamed 
it would happen so quickly. I never dreamed it would be so vicious. The 
authorities investigating the Laci Peterson crime have two pieces of 
evidence to offer the jury: The decomposed body of the mother and the 
decomposed unborn child late in the pregnancy. It is important the jury 
know about both. It is important the criminal be held accountable for 
both. We will debate abortion another day.
  Sixteen States define life under the same legal terms I chose when we 
wrote this bill. That is as to the criminal world, if the pregnancy 
comes to an end and the unborn child's right to develop comes to an end 
because of third-party criminal activity, we are going to hold you 
legally responsible at the earliest onset of pregnancy. The Roe v. Wade 
standard makes no sense. Why give a criminal a benefit of the 
legitimate debate of abortion?
  Thirteen States define it in stages. California, I think by law, 
defines the unborn victim statute at the sixth week of pregnancy. Some 
States, one or two, have the term ``viability.'' There is a sliding 
scale. But the dominant way to define this in State law is the way we 
have chosen to define it in this bill. This chart illustrates how the 
States break out.
  There is another situation I would ask you to think about. Let's say 
there is a woman on death row. She is pregnant for whatever reason. How 
many people would let the execution go forward knowing the woman is 
pregnant? Think about that. What good would it do to allow the 
execution to go forward if you knew the woman was pregnant? Would you 
wait?
  Here is what I suggest to you, if any State or the Federal Government 
decided to impose the death penalty on a woman who was pregnant during 
any stage of the pregnancy, there would be a riot in the street--among 
pro-choice people, too, because what good would it do at any stage of 
the pregnancy to have the State kill the kid? You are not enhancing Roe 
v. Wade. You are not advancing the abortion debate. You are doing 
something you don't need to do.
  The definition that was used in the Innocent Child Protection Act of 
2000, which I was involved in drafting, is the same definition that is 
in this bill about the unborn child. It passed 417 to nothing. To me, 
that makes perfect sense. Four hundred seventeen pro-life people do not 
exist in the House of Representatives. But when faced with the 
question, should the State wait if a woman is pregnant, even at the 
earliest stages of pregnancy, 417 people said yes.
  The reason I mention this to you is, when it comes time to prosecute 
people who unlawfully attack a woman at the earliest stage of 
pregnancy, why should they get a pass? What good have you done? It does 
not change the abortion debate. Roe v. Wade rights still exist. All you 
have done is allow someone to

[[Page 5188]]

interrupt another person's life, take something of value, and they get 
a pass because you are mixing concepts that don't need to be mixed. 
That is why over 50 pro-choice people voted for this bill in the House.
  That is why if we ever get to final passage, we are going to have a 
bipartisan coming together of pro-life and pro-choice people to say one 
thing loud and clear: If you attack a woman of childbearing years where 
Federal law applies, you do so at your peril, and you are going to 
suffer the full consequences of your action. And the full consequences 
of that action could be the loss of the child and the loss of the 
mother or a combination thereof.
  Why not sentence enhancement? I think there is a reason under the law 
that no State has gone down this road. Sentence enhancement would say 
the following: You get a stiffer penalty if the woman is pregnant, but 
you don't talk about the consequences in terms of the victim's life. 
That is an artificial distinction that I think denies justice.
  This was a statement by Kent Willis, executive director of ACLU, and 
I disagree with this statement:

       That baby was not a murder victim.

  He was talking about the Laci Peterson case, the son Connor. I think 
Connor was a murder victim. The point I guess I am trying to make is 
that when people talk about what happens to them, the law, wherever it 
can, should address the full range of what really happened to them.
  There is another case you don't know about because it didn't get 
nearly the publicity, but it is just as real. It is a good example of 
why we need this statute.
  Michael Lenz and his wife were expecting their first child. She 
worked in the Federal Building in Oklahoma City. She was in the 
midstages of her pregnancy. She went to work early the day of the 
bombing to show an ultrasound to her colleagues of their baby. That was 
going on at the moment the bomb goes off. She was killed. Michael Lenz 
III was killed. They had already named their little baby boy.
  The father came before my committee when I was in the House to 
testify for this bill. He said: I am no expert on abortion, but here is 
what happened to my family. My wife was killed, and at the same moment 
I lost my son, Michael Lenz III.
  The reason they lost their son is not because of Roe v. Wade rights; 
it was because of a third party crazy man, a criminal, who destroyed 
many lives that day. When you look at the victims of the Oklahoma City 
bombing case, when it came time in Federal court, you don't find a 
place for Michael Lenz III. If this bill had been law, there would have 
been 22 people, not 21 people, that would have been before the court. I 
cannot say it any better than that.
  In terms of Michael Lenz and all the other victims who testified in 
support of this legislation, sentence enhancement doesn't speak to what 
happened to them. From a prosecutor's point of view, it makes all the 
difference in the world to have two charges facing the accused versus 
one. It gives you more leverage than you could ever dream of. Ladies 
and gentlemen, in cases like this, it is the right thing to do.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. FEINSTEIN. Madam President, I yield as much time as she requires 
to the Senator from California, Mrs. Boxer. She was here a moment ago.
  Mr. DeWINE. Madam President, I inquire of the Chair, how much time 
does each side have remaining?
  The PRESIDING OFFICER. The Senator from Ohio has 58 minutes. The 
Senator from California has 62 minutes.
  Mr. DeWINE. Sixty-two?
  The PRESIDING OFFICER. Right.
  Mr. DeWINE. Thank you. Madam President, I yield to the Senator from 
Pennsylvania 5 minutes.
  Mr. SANTORUM. Madam President, I thank the Senator from Ohio. If 
Senator Feinstein's speaker arrives, I will be happy to abbreviate my 
remarks to accommodate the other side of the aisle.
  I wanted to congratulate Senator DeWine and Senator Graham, who have 
really worked hard not just on this legislation, but getting this 
legislation to a point where we can have an up-or-down vote, have a 
vote on the amendments, and let the Senate work its will. That is one 
of the things we have not seen done in recent weeks. We have had an 
opportunity here on a very important issue to have the Senate's will be 
done. I also congratulate Senator Frist and Senator McConnell and the 
Democratic leaders for allowing us to debate this issue. This is an 
important debate.
  I think Senator Graham, who I had the privilege of listening to for a 
few moments, summarized it very well. The issue is, how many victims 
are there? Do we recognize the loss of a child in the womb, a child who 
is anticipated, is wanted, and whose life is very real to the mother 
and father and the family? When that life is taken away by a third 
party, do we recognize that child's existence in the law?
  I don't think anyone would doubt that when a woman who has a child in 
the womb is attacked and injury comes to that child, another person is 
affected. If the child dies, that child is affected. There is something 
that goes on to another human being. The issue here is whether we are 
going to recognize that in the law. I agree with the Senator from South 
Carolina that it has nothing to do with abortion. It is specifically 
excluded from this legislation. So why do all of the abortion rights 
activists have a problem with this legislation?
  It comes down to the very issue, do we recognize the humanity of a 
child in womb? How far would we go to protect this right to an 
abortion? Do we go so far as to even deny the existence of a child who 
is not subject to abortion? How far do we go to protect this right, the 
supreme right above all, the right to an abortion, a right that can 
have no restriction on it? In fact, it cannot even have a restriction 
that is not at all applicable to it. So, in other words, we cannot even 
talk about this, or some way, through some logic, attack the issue. We 
have to deny under every circumstance that the child in the womb is a 
human life. That is what this is about.
  This is all about denying the humanity of the child. We just cannot 
contemplate that in our laws. We cannot have any admission anywhere in 
law that says what is inside the woman's womb is a child--when, of 
course, we all know that is exactly what it is. But we cannot express 
that legally. If we do, somehow or another, this right to abortion may 
be threatened down the road. Who cares about what harm we may bring? 
Who cares about what harm we may bring to a mother whose child is 
injured or what harm we may bring to the family who may lose or have an 
injury to a child in womb? Who cares that we cannot bring somebody who 
has done violence to a child in the womb to justice? All of those 
things are worth ignoring to protect this right that is not even at 
stake today.
  This issue, as I have said many times, is a cancer. I thought at 
first it was a cancer that ate away at us in how we view the 
relationship between the mother and the child, but it is worse. It is a 
cancer that reaches in and infects even areas that have nothing to do 
with abortion.
  We need to let common sense reign in the Senate today. The common 
sense is, this is a child who is loved and wanted by the mother. This 
is a child who, in many cases, has been given a name, such as Conner 
Peterson, and this is a child who deserves the dignity of recognition 
by our society.
  The PRESIDING OFFICER. The Senator has used 5 minutes.
  Mr. SANTORUM. Madam President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. DeWINE. I yield to the Senator from Utah.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I appreciate my colleague from California 
permitting me to go before her.
  I rise today to urge my colleagues to vote in favor of the Unborn 
Victims of Violence Act. The importance of this issue has been made 
tragically clear by

[[Page 5189]]

the grisly murders of Laci Peterson and her unborn son Conner. I met 
with her mother again yesterday and was very impressed with her and how 
she is handling this situation.
  This bill will ensure Federal law appropriately protects unborn 
children from assault and murder. It has passed the House of 
Representatives by a strong bipartisan vote of 254 to 163. I believe 
the Senate should give similar overwhelming approval.
  Before I begin the substance of my remarks, I commend Senators DeWine 
and Lindsey Graham for their longstanding and essential leadership on 
this most important issue and for drafting the legislation that is 
before us today. This issue has already been addressed in many States 
across the country. In fact, in my home State of Utah, if a criminal 
assaults or kills a woman who is pregnant and thereby causes death or 
injury to the unborn child, the criminal faces the possibility of being 
prosecuted for having taken or injured that unborn life. Twenty-eight 
additional States have similar laws on the books. Sixteen of those 
States recognize the unborn child as a victim throughout the entire 
period of prenatal development. This is only proper and, it seems to 
me, only just.
  However, there is a gap in the law under existing Federal criminal 
statutes. Current Federal law provides for no additional criminal 
penalty when a criminal assaults or kills a woman who is pregnant and 
thereby causes death or injury to that unborn child. It is time 
Congress eliminates this unjustified gap in the law.
  This bill bridges this existing gap, and it does so in a way that 
protects the rights of the States. It creates a separate Federal 
offense to kill or injure an unborn child during the commission of 
certain already defined Federal crimes committed against the unborn 
child's mother.
  Importantly, because this bill only applies to Federal crimes, it 
does not usurp jurisdiction over State law. If someone commits a crime 
that violates State law, but does not violate any Federal law, then 
State law will prevail, regardless of whether that State has laws that 
protect unborn victims of violence.
  I cannot imagine why anyone would oppose this bill.
  Some have mistakenly characterized this bill as anti-abortion. It is 
not, and I am not saying that because I am pro-life.
  Let me take this opportunity to clarify a remark I made on May 7 of 
last year. I am quoted as saying the bill undermines abortion rights, 
but that this effect is irrelevant. The point I was trying to make, and 
I guess I did not make it well and it has been quoted out of context 
many times, is there is no conflict between the bill language and Roe 
v. Wade. Some are prepared to bring the abortion issue into anything, 
any time, for any reason, even when it does not fit, such as in this 
case.
  I do not believe this bill in any way undermines abortion rights. It 
certainly does not.
  The bill explicitly says the Federal Government cannot prosecute a 
pregnant woman for having an abortion. In fact, the bill goes even 
further. The bill does not permit prosecution against any woman with 
respect to her unborn child regardless of whether the mother acted 
legally or illegally. If a woman chooses not to have her baby, the bill 
says she can have an abortion without Federal prosecution. That is how 
far the authors of this bill have gone. But importantly, for those 
women who have chosen to keep their baby, this bill says no coldblooded 
murderer can take that choice away from her by killing her baby and 
going unpunished.
  Those who oppose this bill are, in effect, saying the murderer, not 
the mother, has the choice to take the baby away from his or her mother 
against the mother's will and against the individual's will. Since the 
murderer will not be punished for this terrible offense, it exonerates 
his or her actions. That is simply not right.
  I understand my dear friend Senator Feinstein says this bill somehow 
threatens stem cell research. It does no such thing. I have been a 
supporter of embryonic stem cell research, and everyone in this body 
knows it and I guess most scientists throughout the world know that. I 
have been proud to stand shoulder to shoulder with Senator Feinstein, 
Senator Specter, Senator Kennedy, and Senator Harkin on stem cell 
research. I believe we are right on that issue. But this bill in no way 
impedes stem cell research. This bill is about stopping and punishing 
heinous crimes.
  Why would I support Laci and Conner's law if it jeopardized that 
research? The words ``stem cell research'' are nowhere in the bill. 
This is a criminal law, not an abortion law.
  As I have said on many occasions, it is my view life begins in a 
mother's womb. What this bill does is penalize those who act to 
viciously end that life in the womb or any life in the womb.
  Senator Feinstein, the distinguished Senator from California, 
suggested this bill somehow may result in assigning legal status to the 
term ``embryo.'' But I cannot find the term ``embryo'' anywhere in the 
bill. Nor for that matter can I find the term ``embryo'' in the 
amendment put forth by the distinguished Senator from California, Mrs. 
Feinstein.
  In short, this bill does not affect abortion, embryos, or, for that 
matter, stem cell research. There is no legislative intent here to 
prosecute researchers working on stem cell research--none whatsoever.
  I have the utmost respect for my dear friend from California, and she 
knows that. We have worked together on many issues during her 12 years 
on the Judiciary Committee. I admire her and appreciate working with 
her on so many of these issues. I admire her judicious way in fighting 
for the issues in which she believes, even when we disagree. If her 
bill truly considered the same crime, I would give strong consideration 
to supporting it. But it does not. It tries to do it, but it does not.
  The phrase ``interrupt a pregnancy'' is overly vague and will 
probably be struck down by the courts on that ground. Because of this 
vagueness, the courts may well interpret the Feinstein amendment as 
providing no additional penalty for a crime committed against a fetus.
  Some will try to claim this weakens domestic violence laws by 
averting attention to the unborn. That is simply not true. I am a 
strong supporter of domestic violence laws and, along with Senator 
Biden, was the main writer of those bills. I believe domestic violence 
is an evil plague that needs to be stopped.
  My commitment to this issue has been longstanding. As many of my 
colleagues are aware, I was an original cosponsor of the Violence 
Against Women Act over a decade ago, and I have tirelessly fought in 
countless venues to protect the rights of women. This bill furthers 
that cause.
  For many years, I have worked hard on the issue of domestic violence 
and violence against women, and when I stand here today before the 
entire Senate and offer my support for a bill, I certainly make sure 
that bill does not diminish in any way our capacity to curb domestic 
violence and protect women.
  The bill before us strengthens the rights of women and provides those 
who fight against domestic violence with another tool in their arsenal 
to go after abusers. This bill focuses attention on both a pregnant 
woman and her child. Before the Government could prosecute someone for 
hurting the unborn child, it would first need to prove the pregnant 
woman was hurt. In other words, the Government needs to prove 1 of 68 
enumerated predicate Federal crimes against the mother before it could 
obtain a conviction under this provision of this bill.
  Moreover, this provision empowers abused women because it gives the 
Government a greater arsenal of prosecutorial tools to put the abusive 
spouse behind bars for a longer period of time. Many today will talk 
about the Peterson case. Suffice it to say that the public reaction to 
that case underscores the widespread support for the changes that we 
are making with H.R. 1997.
  A news poll taken last April consisting of an almost even split of 
pro-life and pro-choice individuals indicated that 84 percent--let me 
repeat

[[Page 5190]]

that, 84 percent--believed that Scott Peterson, who is currently on 
trial for the murder of his wife, should be charged with two counts of 
homicide for murdering his wife and unborn son.
  California law permits criminals to be charged with murder for 
killing an unborn child when that child has developed past the 
embryonic stage. The tragic murder of an innocent unborn child is so 
shocking and so disturbing that regardless of any stance on abortion, 
the vast majority of all Americans strongly believe an unborn life 
taken in murder should result in murder charges brought against the 
perpetrator.
  It is only fair and just to ask for our Federal judicial system to 
incorporate this strong desire of the vast majority of the American 
people on this issue.
  I urge my colleagues to vote for H.R. 1997. I urge my colleagues to 
vote against amendments to H.R. 1997. Do it for Laci and Conner 
Peterson and for thousands of others in similar situations who have 
been abused. Do it for all women who have chosen to have their baby and 
are having that choice taken away from them by a cold-blooded murderer. 
Most of all, do it because it is the right thing to do.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Talent). The Senator from California.
  Mrs. BOXER. Mr. President, I thank the Senator from Utah because he 
promised me he would keep within the 15 minutes so that I could get the 
floor at this time, and I appreciate his cooperation.
  I also thank my colleague, the senior Senator from California, Mrs. 
Feinstein, for her great leadership on this issue. I also have to 
express a little bit of dismay that she was not able to modify her 
amendment. It kind of gives one a clue that the people on the other 
side have a different agenda when they say they are not going to allow 
a colleague they respect and admire to send a modification to the desk.
  So I thought I would want to place that on the record because we 
remember. These things we will remember because it is not right to not 
allow a colleague to modify an amendment that she has written. So the 
next time the other side wants to do it, we will have to think a bit. 
It is just sad. It is not the way the Senate should work.
  Senator Feinstein has yielded me 10 minutes of her time, so if the 
Chair would tell me when I have used 9 minutes, I would appreciate it.
  The PRESIDING OFFICER. The Chair will so notify the Senator.
  Mrs. BOXER. I am very much in favor of enhanced penalties for those 
offenders, those criminals, who harm pregnant women. I think Senator 
Feinstein's substitute amendment is one that does exactly that. What I 
do not support are the efforts of some Members of this body who clearly 
are the leaders of the anti-choice movement in the Senate. We have 
heard from them seriatim. They have just come right down and spoken. I 
do not support what they are trying to do, which is to undermine pro-
choice laws, particularly Roe v. Wade.
  Now, one can dress up a bill to make it look like anything one wants, 
but the so-called Unborn Victims of Violence Act, although they try to 
dress it up as a criminal statute designed to deter violence, I think 
has tremendous weakness in the way it is written and in the way it 
would prosecute a violent criminal who harms a pregnant woman. It is 
another effort to undermine Roe v. Wade, which as we know, has given 
women in this country the right to choose, and it is a very important 
right of privacy.
  How do I know this is the supporters' motivation? It is easy for me 
because if they wanted to create a law that says we believe that a 
pregnant woman should be protected and we want to punish someone who 
harms a pregnant woman, it is a pretty easy thing to just support 
Senator Feinstein's amendment. It is clean; it is clear; she doubles 
the penalties just as they do in their bill. She avoids the issue, 
however, of a woman's right to choose, which this is not about. There 
is nothing about that in this bill.
  The substitute that Senator Feinstein has offered to us, which is 
like H.R. 1997, creates a separate offense when someone harms a 
pregnancy or terminates a pregnancy while in the commission of a 
violent Federal crime. That is very important to do because these 
crimes are heinous and all the more heinous if a woman is pregnant. As 
the author of the Violence Against Women Act in the House and working 
with Senator Biden for 10 years to get it through the Senate and the 
House and get it signed into law, Senator Feinstein's bill is in tune 
with that point that we will not stand by and allow violence against 
women. Particularly if a woman is pregnant, it makes the crime more 
vicious and it doubles the penalty for such a crime. It creates the 
same separate penalty for this separate crime, a maximum of 20 years 
for harm and a maximum of life in the event a pregnancy is terminated. 
It does not require proof that the offender had knowledge of the 
woman's pregnancy.
  The sole difference between the substitute that Senator Feinstein is 
offering and the Unborn Victims of Violence Act is that they want to 
bring in the issue of a woman's right to choose, and they want to make 
this bill about a woman's right to choose.
  What on Earth does this have to do with a woman's right to choose? 
Nothing, not a thing. Senator Feinstein's substitute focuses on the 
pregnant woman. That is the issue, the pregnant woman. So one wonders 
why the other side cannot accept it. The answer is simple. Again, they 
are trying to make this about abortion, not about convicting a 
criminal.
  I want to correct something. When I referenced the House bill, I 
meant to reference the Zoe Lofgren bill--and I am not sure of that 
number--not the House bill that is identical to Senator DeWine's bill. 
Zoe Lofgren in the House had a similar bill to Senator Feinstein's 
bill. That bill got a lot of support but not enough support.
  Again, it is very simple why people over there who are anti-choice 
did not support the Lofgren bill, and they do not support the Feinstein 
bill, because they want to make this about abortion and they want to 
undermine Roe v. Wade and a woman's right to choose.
  I am a little bit shocked because the experts who have written to us 
have told us that the bill that the anti-choice Senators are supporting 
would make it harder to convict a criminal.
  For example, Peter Rubin, visiting associate professor at Georgetown 
Law Center, when he testified before the House Judiciary Committee, 
said:

       The phrase ``child in utero'' is ambiguous and would 
     actually aid an offender in avoiding prosecution.

  Imagine. It seems to me the other side is so anxious to undermine Roe 
and to confuse the subject and to make this bill about abortion, they 
are willing to pass an ambiguous bill which would actually aid the 
offender, the criminal, and would actually allow some heinous criminal 
to go free.
  I ask unanimous consent that Peter Rubin's letter be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                             Georgetown University


                                                   Law Center,

                                    Washington, DC, July 21, 1999.
     Re H.R. 2436, The Proposed ``Unborn Victims of Violence Act 
         of 1999''--written testimony of Peter J. Rubin, Visiting 
         Associate Professor of Law, Georgetown University Law 
         Center, before the Subcommittee on the Constitution of 
         the House Committee on the Judiciary.

       I have been asked by this subcommittee to review and 
     comment upon H.R. 2436, which would create a separate federal 
     criminal offense where criminal conduct prohibited under a 
     list of over sixty federal statutes, in the words of the 
     proposed law ``causes the death of, or bodily injury . . . to 
     a child, who is in utero.'' I am honored to have the 
     opportunity to convey my views to the subcommittee.
       Where an act of violence against a pregnant woman results 
     in a miscarriage, that act of violence has wrought a distinct 
     and unique harm in addition to the harm it would have done 
     had the woman not been pregnant. Similarly, injury to a baby 
     that may result from unlawful violence perpetrated upon its 
     mother when it was a fetus in utero is something from which 
     government may properly seek to protect the woman and the 
     child.
       Consequently, although many states adhere to the 
     traditional rule that the criminal

[[Page 5191]]

     law reaches only conduct against a person already born alive, 
     some states have enacted laws that penalize conduct that may 
     kill or, in some cases, injure, a fetus in utero. One example 
     is North Carolina's state statute which provides that ``A 
     person who in the commission of a felony causes injury to a 
     woman, knowing the woman to be pregnant, which injury results 
     in a miscarriage or stillbirth by the woman is guilty of a 
     felony that is one class higher than the felony committed.'' 
     (N.C. Gen. State. Sec. 14-18.2.)
       If the members of Congress conclude that causing injury in 
     this way during the commission of a federal crime warrants 
     additional punishment, it, too, could adopt such a provision. 
     Indeed, it seems as though this is one area on which both 
     sides of the debate about abortion might be able to find 
     common ground in supporting a properly worded statute that 
     might give additional protection to women and their families 
     from this unique class of injury.
       As currently drafted, however, the proposed statute differs 
     from some state laws on this issue in two critical respects. 
     First is its use of the phrase ``child, who is in utero'' to 
     describe the fetus. This is not the ordinary way statutes 
     refer to fetuses in utero. Indeed, the proposed law appears 
     to be unique in its use of this formulation. The use of this 
     language will likely subject H.R. 2436 to legal challenge, 
     and will likely render the proposed law ineffective in 
     preventing and punishing acts that harm or kill fetuses being 
     carried by pregnant women.
       Second is the bill's treatment of the fetus solely as a 
     separate victim of certain federal crimes. This approach is 
     different from that taken by some states that have enacted 
     criminal laws addressing fetal injury or death in that it 
     fails to focus at all on the woman who is the victim of the 
     violence that may injure or kill the fetus. It would be far 
     easier to reach common ground with an approach that takes 
     account of the place of the pregnant woman when acts of 
     violence against her lead to fetal injury or death. Indeed, 
     the approach taken by the current statute may lead to some 
     unintended results, and is not consistent with the treatment 
     of the fetus in the American legal tradition.
       To begin with, the proposed law refers to ``a child, who is 
     in utero at the time the conduct takes place.'' Because it 
     uses these words, the proposed law would likely result more 
     in useless litigation about the statute's meaning than in the 
     prevention and punishment of conduct that results in fetal 
     injury or death. Its use of the phrase ``child, who is in 
     utero'' may give a defendant an argument that the statute is 
     ambiguous, and that he lacked the notice of what acts are 
     criminal that is required by the Due Process Clause of the 
     Fifth Amendment. Does it mean the statute applies only to the 
     injury or death of a ``child,'' that is one who is 
     subsequently born, but who was injured in utero? Does it 
     refer to a fetus past the point of viability? Does it refer 
     to a single-cell fertilized ova that has not yet implanted in 
     the uterine wall? The statute does not tell us.
       Even if the law is not held inapplicable because of 
     unconstitutional vagueness, the Supreme Court has articulated 
     a doctrine known as the doctrine of ``lenity.'' Rooted in 
     part in separation of powers concerns, this doctrine means 
     that an ambiguous federal criminal statute must be construed 
     in the way most favorable to the defendant, lest an 
     individual be criminally punished for conduct that Congress 
     did not intend to criminalize. At best, the phrase ``child, 
     who is in utero'' is ambiguous here, and a defendant is 
     likely to be able to avoid prosecution for whatever conduct 
     it is that the drafters of this law intend to criminalize.
       In addition, this statute operates in a very unusual 
     manner. It does not just increase the penalty for unlawful 
     violence against a pregnant woman that results in the death 
     of or injury to a fetus, nor does it criminalize injuring or 
     killing a fetus if one has the requisite mental state and is 
     aware of the woman's pregnancy. Rather it includes fetuses 
     within the universe of persons who may be protected from 
     injury or death resulting from violations of other federal 
     criminal laws.
       Many state laws address fetal injury and death only in 
     certain circumstances, and, reflecting the unique nature of 
     the developing fetus, many provide some penalty that is 
     different from the penalty that would have applied had the 
     defendant killed or injured a person who was already born. 
     They tend also to take account of the fetus's stage of 
     development. State feticide laws often do not treat even the 
     intentional killing of a fetus through violence perpetrated 
     upon the pregnant woman as murder equivalent to the murder of 
     a person who has been born. Some, like North Carolina, 
     enhance the penalty for the underlying criminal conduct. 
     Others treat even intentional feticide only as manslaughter. 
     Thus, in Mississippi, for example, the law provides that 
     ``The wilful killing of an unborn quick child, by an injury 
     to the mother of such child, which would be murder if it 
     resulted in the death of the mother, shall be manslaughter.'' 
     (Miss. Code. Ann. Sec. 97-3-37.)
       The proposed law by contrast says that whenever causing 
     death or injury to a person in violation of a listed law 
     would subject an individual to a particular punishment, he 
     shall be subject to the same punishment if he causes death or 
     injury to a fetus. This is true regardless of the stage of 
     fetal development. Whatever its rhetorical force, the 
     proposed law would lead to some unusual, and probably 
     unintended, results. To give just one example, under the 
     Freedom of Access to Clinic Entrances Act (``FACE''), 18 
     U.S.C. Sec. 248, one of the statues listed in H.R. 2436, if 
     an individual who is engaged in obstructing access to an 
     abortion clinic knocks a pregnant woman to the ground during 
     a demonstration, he is liable to imprisonment for up to one 
     year. If he causes her ``bodily injury'' when he knocks her 
     down, he would be subject under FACE to a ten-year term of 
     imprisonment. Under the proposed law, however, if she 
     miscarried as a result of being knocked down, he would be 
     subject to life imprisonment, the same as if his action had 
     caused the death of the woman herself.
       In addition to being far more practical, it would be fare 
     easier to reach common ground on this issue with adoption of 
     a statute similar to those state statutes, providing for 
     enhanced punishments that I have described. For in addition 
     to the practical consequences, the use of a statutory 
     framework, that seeks to achieve its result through treating 
     all fetuses at all stages of development as persons distinct 
     from the women who carry them unnecessarily places federal 
     statutory law on the path toward turning the pregnant women 
     into the adversary rather than the protector of this fetus 
     she carries. For although this law contains exceptions for 
     abortion, for medical treatment of the woman or the fetus and 
     for the woman's own conduct--exceptions that are both wise 
     and constitutionally required--if the fetus were truly a 
     ``person,'' there would be no principled reason to include 
     such exceptions. Yet of course a law that did not contain 
     them would be shocking to most Americans and both obviously 
     and facially unconstitutional.
       Finally, then, in failing to take account of the women, the 
     proposed statute also sets federal law apart from the 
     American legal and constitutional tradition with respect to 
     the treatment of the fetus. As the Supreme Court has, 
     described, ``the unborn have never been recognized in the law 
     as persons in the whole sense.'' At common law, the 
     destruction of a fetus in utero was not recognized as 
     homicide unless the victim was born alive. And, of course, 
     the Supreme Court has held that fetuses are not persons 
     within the meaning of the Fourteenth Amendment. This is a 
     position with which even as staunch an opponent of Roe v. 
     Wade as Justice Antonin Scalia agrees.
       In addition, therefore, to the practical and political 
     considerations that counsel in favor of an alternative 
     approach, the proposed law would also unnecessarily set 
     federal statutory law on a conceptual collision course with 
     the Supreme Court's abortion decisions. Whatever one may 
     think of those decisions, an unnecessary conflict about them 
     would not contribute to the important work of healing where 
     possible the country's division over abortion.

  Mrs. BOXER. Then you have Jon Jennings who in 1999 was the Acting 
Assistant Attorney General. He submitted a letter to Representative 
Henry Hyde on behalf of the Justice Department. He also wrote the law 
would be hard to prosecute because of the difficulty in gathering 
evidence.
  I ask unanimous consent to have Jon Jennings' letter printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                Washington, DC, September 9, 1999.
     Hon. Henry Hyde,
     Chairman, Committee on the Judiciary, U.S. House of 
         Representatives, Washington, DC.
       Dear Mr. Chairman: This letter presents the views of the 
     Department of Justice on H.R. 2436, the ``Unborn Victims of 
     Violence Act of 1999.''
       Section 2 of H.R. 2436 would make it a separate federal 
     offense to cause ``death or bodily injury'' to ``a child in 
     utero'' in the course of committing any one of 68 enumerated 
     federal crimes. The punishment for the new crime under H.R. 
     2436 is the same as if the harm had been inflicted upon the 
     ``unborn child's mother,'' except that the death penalty is 
     not permitted. Section 3 of H.R. 2436 would make 
     substantively identical amendments to the Uniform Code of 
     Military Justice.
       The Justice Department strongly objects to H.R. 2436 as a 
     matter of public policy and also believes that in specific 
     circumstances, illustrated below, the bill may raise a 
     constitutional concern. The Administration has made the fight 
     against domestic violence and other violence against women a 
     top priority. The Violence Against Women Act (VAWA), which 
     passed with the bipartisan support of Congress in 1994, has 
     been a critical turning point in our national effort to 
     address domestic violence and sexual assault. VAWA, for the 
     first time, created federal domestic violence offenses with 
     strong penalties to hold violent offenders accountable. While 
     most domestic violence crimes

[[Page 5192]]

     are appropriately prosecuted at the state and local level, 
     the Department of Justice has brought 179 VAWA and VAWA-
     related federal indictments to date, and this number 
     continues to grow. In addition, the Department of Justice 
     alone has awarded well over $700 million through VAWA grant 
     programs since 1994, directing critical resources to 
     communities' efforts to respond to domestic violence and 
     sexual assault. These funds have made a difference in women's 
     lives, and in how communities respond to violence against 
     women. Indeed, these funds have helped save the lives of many 
     victims of domestic violence.
       If the Committee wants to make a difference in the lives of 
     women victims of violence, it should reauthorize the Violence 
     Against Women Act. We hope that Congress will work with us on 
     this common goal. H.R. 2436, however, is not an adequate 
     response to violence against women. Our three main objections 
     to H.R. 2436 are described below.
       First, H.R. 2436 provides that the punishment for a 
     violation shall be the same as the punishment that would have 
     been imposed had the pregnant woman herself suffered the 
     injury inflicted upon her fetus. The Department agrees that 
     some additional punishment may be warranted for injury to 
     pregnant women. H.R. 2436, however, would trigger a 
     substantial increase in sentence as compared with the 
     sentence that could otherwise be imposed for injury to a 
     woman who is not pregnant.
       Second, H.R. 2436 expressly provides that the defendant 
     need not know or have reason to know that the victim is 
     pregnant. The bill thus makes a potentially dramatic increase 
     in penalty turn on an element for which liability is strict. 
     As a consequence, for example, if a police officer uses a 
     slight amount of excessive force to subdue a female suspect--
     without knowing or having any reason to believe that she was 
     pregnant--and she later miscarries, the officer could be 
     subject to mandatory life imprisonment without possibility of 
     parole, even though the maximum sentence for such use of 
     force on a non-pregnant woman would be 10 years. This 
     approach is an unwarranted departure from the ordinary rule 
     that punishment should correspond to culpability, as evinced 
     by the defendant's mental state.
       Third, H.R. 2436's identification of a fetus as a separate 
     and distinct victim of crime is unprecedented as a matter of 
     federal statute. Such an approach is unnecessary for 
     legislation that would augment punishment of violence against 
     pregnant women. Additionally, such an approach is unwise to 
     the extent that it may be perceived as gratuitously plunging 
     the federal government into one of the most--if not the 
     most--difficult and complex issues of religious and 
     scientific consideration and into the midst of a variety of 
     State approaches to handling these issues.
       Our policy concerns with H.R. 2436 are exacerbated by the 
     likelihood that the bill will yield little practical benefit. 
     Because the criminal conduct that would be addressed by H.R. 
     2436 is already the subject of federal law (since any assault 
     on an ``unborn child'' cannot occur without an assault on the 
     pregnant woman), H.R. 2436 would not provide for the 
     prosecution of any additional criminals. At the same time, 
     prosecutors proceeding under H.R. 2436 would be likely to 
     encounter difficulty collecting evidence to support their 
     prosecutions. For instance, the prosecutor would have to 
     establish that the defendant's conduct ``cause[d]'' the 
     injury--given the inherent risk of miscarriage and birth 
     defects that occur absent any human intervention, causation 
     may be very difficult to establish.
       Finally and critically, the drafters of H.R. 2436 are 
     careful to recognize that abortion-related conduct is 
     constitutionally protected. The bill accordingly prohibits 
     prosecution for conduct relating to a consensual abortion or 
     an abortion where consent ``is implied by law in a medical 
     emergency.'' Without this exception, the bill would be 
     plainly unconstitutional. Including the exception does not, 
     however, remove all doubt about the bill's constitutionality. 
     The bill's exception for abortion-related conduct does not, 
     on its face, encompass situations in which consent to an 
     abortion may be implied by law (if, for example, the pregnant 
     woman is incapacitated) even though there is no medical 
     emergency. In this situation, the bill may unduly infringe on 
     constitutionally protected conduct.
       For these reasons, we strongly oppose H.R. 2436. The 
     Administration, however, would work with Congress to develop 
     alternative legislation that would strengthen punishment for 
     intentional violence against women whom the perpetrator knows 
     or should know is pregnant, strengthen the criminal 
     provisions of VAWA, and reauthorize the grant programs 
     established by this historic legislation.
       Thank you for this opportunity to present our views. The 
     Office of Management and Budget has advised us that from the 
     standpoint of the Administration, there is no objection to 
     submission of this letter. Please do not hesitate to call 
     upon us if we may be of further assistance.
           Sincerely,
                                                  Jon P. Jennings,
                                Acting Assistant Attorney General.

  Mrs. BOXER. Then there is a recent letter of George Fisher, a tenured 
professor at Stanford, former prosecutor and expert on the criminal 
justice system. He, too, believes it makes things worse in terms of 
convicting a criminal.
  The PRESIDING OFFICER. The Senator has now used 9 minutes of time.
  Mrs. BOXER. I ask unanimous consent for 2 more minutes from my 
colleague.
  The PRESIDING OFFICER. Does the Senator from California yield an 
additional 2 minutes?
  Mrs. FEINSTEIN. I yield as much time as she may require.
  Mrs. BOXER. I thank my colleague.
  I ask unanimous consent the letter from George Fisher be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                          Stanford Law School,

                                      Stanford, CA, July 10, 2003.
     Senator Dianne Feinstein,
     U.S. Senate, Senate Hart Office Building, Washington, DC.
       Dear Senator Feinstein, I wish to express my concern about 
     the current formulation of S. 1019, the Unborn Victims of 
     Violence Act of 2003. Although I fully endorse the Bill's 
     ultimate aim of protecting pregnant women from the physical 
     and psychological trauma of an endangered or lost pregnancy, 
     I believe that the Bill's current formulation will frustrate 
     rather than forward this goal.
       I write both as a former persecutor and as a law professor 
     specializing in criminal law and criminal prosecution. At the 
     outset of my career, I served as an assistant district 
     attorney in Middlesex County, Mass., and as an assistant 
     attorney general in the Massachusetts Attorney General's 
     office. I then went to Boston College Law School, where I 
     administered and taught in the criminal prosecution clinic. I 
     have been at Stanford since 1995 and a tenured professor of 
     law since 1999; during the next academic year, I will serve 
     as Academic Associate Dean. In 1996 I founded Stanford's 
     criminal prosecution clinic and have administered and taught 
     in the clinic ever sine. I have also created a course in 
     prosecutorial ethics, which I taught at Boston College Law 
     School and, as a visitor, at Harvard Law School.
       My background and interest in criminal prosecution prompt 
     me to raise three objections to this Bill. All of them focus 
     on the Bill's use of the expressions ``child in utero'' and 
     ``child, who is in utero,'' and on its definition of these 
     terms as ``a member of the species homo sapiens, at any stage 
     of development, who is carried in the womb.''
       First: The Bill's apparent purpose of influencing the 
     course of abortion politics will discourage prosecutions 
     under any future Act.
       I do not know what motives gave rise to the Bill's use of 
     the expressions ``child in utero'' and ``child, who is in 
     utero,'' but I do know that any vaguely savvy reader will 
     conclude that these terms and the Bill's definition of them 
     were intended by the Bill's authors to influence the course 
     of abortion politics. It is a fair prediction that when a 
     pro-life President is in office, prosecutions under this Bill 
     will be more frequent than when a pro-choice President is in 
     office. That is because the public will interpret this Bill 
     as suggesting that abortion is a potentially criminal act and 
     will interpret prosecutions under the Bill as endorsing this 
     sentiment.
       If the authors of the Bill truly seek to protect unborn 
     life from criminal violence, they will better accomplish this 
     purpose by avoiding such expressions as ``child in utero.'' 
     Better alternatives would refer to injury or death to a fetus 
     or damage to or termination of a pregnancy.
       Second: The Bill's apparent purpose of influencing the 
     course of abortion politics will motivate prosecutors to 
     exclude those prospective jurors who otherwise would be most 
     sympathetic to the prosecution's case.
       If I were prosecuting a case under this Bill, I would hope 
     to have a jury that includes persons deeply sensitive to the 
     rights and interests of pregnant women. Such jurors would 
     regard an attack on a pregnant woman as being a twofold 
     crime, comprising both the injury directly inflicted on the 
     mother and the stark emotional and physical trauma resulting 
     from injury to or loss of her pregnancy.
       But such jurors also will be more likely than others to 
     believe that pregnant women have the right to exercise 
     autonomy over their bodies and to choose whether to abort a 
     pregnancy. I predict that many or most judges will bar 
     prosecutors and defense counsel from questioning prospective 
     jurors about their views on abortion or about related matters 
     such as their religion, religious practices, or political 
     affiliations. Forced to act largely on instinct, prosecutors 
     may be inclined to exercise peremptory challenges against 
     those prospective jurors who appear to be most sympathetic to 
     the rights of pregnant women. This result clearly would 
     frustrate the Bill's stated purpose of protecting unborn life 
     from criminal violence.
       Third: The Bill's apparent purpose of influencing the 
     course of abortion politics offends the integrity of the 
     criminal law.

[[Page 5193]]

       To anyone who cares deeply about the integrity of the 
     criminal law, this Bill's apparent attempt to insert an 
     abortion broadside into the criminal code is greatly 
     offensive. The power to inflict criminal penalties is, second 
     only to the power to wage war, the highest trust invested in 
     our institutions of government. Because the power to make and 
     enforce criminal laws inherently carries enormous potential 
     for abuse, those who exercise that power must always do so 
     with a spirit free of any ulterior political motive. The 
     American Bar Association's Standards Relating to the 
     Administration of Criminal Justice provide that ``[i]n making 
     the decision to prosecute, the prosecutor should give no 
     weight to the personal or political advantages or 
     disadvantages which might be involved. . . .'' (Standard 3-
     3.9(d).) Not all prosecutors conduct themselves with fidelity 
     to this principle, but we may readily condemn those who do 
     not. We may likewise condemn other public actors who abuse 
     the sacred public trust of the criminal sanction for 
     political ends.
       For these reasons, I object to the current formulation of 
     the Unborn Victims of Violence Bill. As I am confident that 
     an alternative version of the Bill can fully accomplish its 
     stated purpose of protecting unborn life from criminal 
     violence while avoiding each of the difficulties I have 
     outlined above, I strongly encourage the Senate to modify the 
     Bill in the ways I have suggested above or in some other 
     manner that avoids the freighted and frankly politicized 
     terms, ``child in utero'' and ``child, who is in utero.''
       My thanks to you for your consideration of my views.
           Sincerely,
                                                    George Fisher,
                                                 Professor of Law.

  Mrs. BOXER. Mr. President, according to the experts, creating a 
separate offense for a child in utero would make it less likely that 
someone who harms or terminates a pregnancy would be convicted of a 
separate offense. So I find it stunning that, rather than back Senator 
Feinstein's substitute, which is very clear--you harm a pregnant woman, 
you are going to do double the time, you are going to get double the 
punishment, and it avoids all question of Roe v. Wade--it shocks me my 
colleagues on the other side would rather have a weaker bill, soft on 
the criminal, soft on crime, in order to undermine Roe v. Wade. It is 
an injection of a political agenda into the criminal justice system 
which I think harms the integrity of the system.
  Again, I am at a loss for words. That is hard for me to believe. But 
if you look at domestic violence groups, they will tell you how they 
feel about it. They say they don't support the legislation. They feel 
it would actually be harmful to battered women.
  Again, as someone who coauthored the Violence Against Women Act with 
Senator Biden, here we have a piece of legislation that is going to be 
harmful to battered women. Yet the other side will not support Senator 
Feinstein's amendment, which absolutely avoids this problem.
  Juley Fulcher, public policy director of the National Coalition 
Against Domestic Violence, who testified before the House subcommittee 
in July 2003, said in her written statement:

       The bill is not designed to protect women and does not help 
     victims of domestic violence. Instead, the focus often will 
     be shifted to the impact of the crime on the unborn embryo or 
     fetus, once again diverting the attention of the legal system 
     away from domestic violence or other forms of violence 
     against women.

  I commend to my colleagues the July 8, 2003 testimony of Juley 
Fulcher before the Subcommittee on the Constitution of the House 
Committee on the Judiciary.
  We also have a letter from Lynn Rosenthal, the executive director of 
the National Network to End Domestic Violence, and the letter of Esta 
Soler, president of the Family Violence Prevention Fund. I ask 
unanimous consent to have them printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           National Network to End


                                            Domestic Violence,

                                Washington, DC, February 18, 2004.
       Dear Member of Congress: The National Network to End 
     Domestic Violence (NNEDV), a social change organization 
     representing state domestic violence coalitions, is dedicated 
     to creating a social, political and economic environment 
     where violence against women no longer exists. We are writing 
     because we know that you will soon be considering the Unborn 
     Victims of Violence Act (UVVA). We know that this is a 
     difficult and emotional issue, and that you are carefully 
     considering your position.
       After very careful consideration and study on our part, we 
     have concluded that the UVVA is not the appropriate remedy 
     for addressing violence against pregnant women. We certainly 
     share the concerns of the sponsors of the legislation about 
     tragic crimes such as the murder of Laci Peterson and other 
     pregnant women. We know that Congress is seeking tools and 
     remedies to address such violence, and appreciate your 
     ongoing support for the Violence Against Women Act. Our 
     concerns about the UVVA are mainly focused on its potential 
     impact on the safety and status of women who are victims of 
     domestic violence.
       Our first concern is that the legislation could potentially 
     remove the focus on the women as the victim of violence. It 
     would be possible under the UVVA that a violent crime 
     specifically targeted at a woman could be prosecuted with the 
     fetus presented as the primary victim. Yet, it is the violent 
     act against the woman that is at the root of the devastating 
     injuries to the women and the pregnancy. In our view, 
     legislation and policy should be focused on recognizing 
     violence against women as the serious crime it is, and need 
     not rely on loss of a pregnancy to vigorously prosecute these 
     crimes.
       Our second concern is that while the UVVA on its face seems 
     to protect women from prosecution of the violence causes her 
     to lose the pregnancy, it may lead to a slippery slope that 
     erodes women's rights and holds them responsible for this 
     loss. This slippery slope has already formed in South 
     Carolina and California, two states with unborn victims 
     legislation. For example, in Whitner v. State, the court 
     found that South Carolina's child endangerment statute could 
     be used to punish a pregnant woman who engaged in any 
     behavior that might endanger her fetus.
       Legislation regarding violence against women must be 
     carefully considered in order to prevent unintended effects 
     from hurting the very women it is supposed to help. Battered 
     women cannot control the violence against them, and should 
     not face the possibility of prosecution simply because they 
     are victims of domestic violence. The landmark case of 
     Nicholson v. Williams, decided in the Eastern District of New 
     York, represents an enormous step in clarifying this 
     position. The federal district court in Nicholson found that 
     mothers' due process rights had been violated when their 
     children were taken away from them merely because they were 
     victims of abuse. That decision correctly puts the emphasis 
     on the abused woman, and stands for the proposition that an 
     abused woman should not be punished, or prosecuted, for 
     occurrences beyond her control.
       Because of our work with battered women, we do know that 
     violence often occurs during pregnancy, and that pregnant 
     women may be both physically and psychologically more 
     vulnerable to such abuse. We believe that by supporting 
     sentencing enhancements, Congress can advance both its goals 
     of protecting victims of domestic violence and providing a 
     legal sanction for loss of pregnancy as a result of 
     battering. Sentencing enhancements appropriately punish the 
     additional injuries that such acts cause without causing the 
     unnecessary complications, and potentially dangerous 
     consequences, for the women we serve.
       There are also a number of other steps Congress can take to 
     more effectively address the problem of violence against 
     women. First, Congress can fully fund the Violence against 
     Women Act. Unfortunately, the 2004 budget includes $16.1 
     million in cuts to the STOP grant program, which provides 
     funding to states, tribes and territories to enhance the law 
     enforcement response to domestic violence and sexual assault, 
     improve prosecution and support victim services. These cuts 
     will have a detrimental impact on communities all across the 
     country that are struggling to maintain core interventions 
     for victims. In addition, the Battered Women's Shelter and 
     Services funding was also cut in 2004, and remains at $48 
     million below the authorized level. Funds to battered women's 
     programs and rape crisis centers have also received cuts at 
     the local and state level over the past several years. These 
     losses are devastating to providers facing bruised and 
     bleeding women every day. Congress can work to address the 
     problem of violence against women by fully funding these 
     life-saving services.
       Thank you for considering our perspective on the UVVA. 
     While the bill is noble in its intentions, we are concerned 
     that it may not fulfill its purpose of creating a legal 
     atmosphere in which women feel protected from violence. 
     Please feel free to call me if you need any additional 
     information. We appreciate for your commitment to ending 
     violence against women, and look forward to continuing to 
     work with you to address this most urgent social problem.
           Sincerely,
                                                   Lynn Rosenthal,
     Executive Director.
                                  ____



                                                    End Abuse,

                                   Washington, DC, March 23, 2004.
     Hon. Jerrold Nadler,
     2334 RHOB,
     Washington, DC.
       Dear Representative Nadler: On behalf of the Family 
     Violence Prevention Fund, I am writing to express concern 
     about the Unborn Victims of Violence Act, H.R. 1997,

[[Page 5194]]

     passed by the House Judiciary Committee on January 21. We are 
     deeply disappointed that some are promoting this bill as a 
     way to end domestic violence, when better and more direct 
     measures to stop family violence languish in Congress year 
     after year. Members of Congress who want to stop abuse will 
     put their energy into passing the prevention and intervention 
     measures that offer great promise to stop violence before it 
     starts.
       The murder of Laci Peterson was an unspeakable tragedy, but 
     many laws designed as quick fixes have caused great harm. For 
     example, mandatory domestic violence health reporting laws 
     deter women from seeking the medical help they need. We need 
     to stop back and consider what actually works. Our goal must 
     be to stop violence against all women, regardless of whether 
     they are pregnant.
       If Congress is serious about stopping domestic violence 
     against pregnant women and helping women and children who are 
     victims, Members will quickly pass the Domestic Violence 
     Screening, Treatment and Prevention Act, H.R. 1267. This 
     essential bill would train health care providers to routinely 
     screen female patients for a lifetime history of abuse and 
     give women access to critical domestic violence services when 
     abuse is identified. Introduced in the House in March of 2003 
     by Representatives Lois Capps (D-CA) and Steven LaTourette 
     (R-OH), this bill has the potential to prevent tragedies by 
     helping victims before violence escalates.
       We also urge Congress to fully fund all Violence Against 
     Women Act programs and support legislation that would 
     actually prevent domestic violence before it begins. Domestic 
     violence prevention legislation should include services for 
     children who are exposed to abuse, programs that support 
     young families at risk of violence, and efforts to each young 
     men and boys how to develop healthy, non-violent 
     relationships. Such legislation would do much more to stem 
     the tide of domestic violence than the Unborn Victims of 
     Violence Act.
       Finally, we wish to thank you for your continued leadership 
     and support on this issue. As an advocate in Congress and as 
     one of our Founding Fathers, you truly make a difference in 
     the movement to end violence against women and children. If 
     we can be of assistance, please do not hesitate to contact 
     Kiersten Steward in our Washington, D.C. office at 202-682-
     1212.
           Sincerely,

                                                   Esta Soler,

                                        President, Family Violence
                                                  Prevention Fund.

  Mrs. BOXER. Here we have it. I am going to finish with this. We have 
a bill before us Senator Feinstein has improved greatly. We have a bill 
before us that, instead of concentrating on punishing the violent 
criminal, concentrates instead on trying to set the stage to reverse 
Roe v. Wade, which the vast majority of people in this country think is 
a good law that balances the rights of the woman and the rights of the 
fetus. Yet they are so interested in doing this that they have a bill 
that is going to make it difficult to convict the criminal who commits 
the heinous crime against the pregnant woman. It shows you how far the 
other side will go.
  When we reach out our hand, as we have done many times with them, 
they will not take our hand. They push it away, because they are much 
more interested in the political agenda of taking away a woman's right 
to choose.
  My heart goes out to Laci Peterson's family and to all the other 
families that have experienced the tragedy of losing a loved one to a 
violent crime and, on top of that, losing the joy I and Senator 
Feinstein have of having grandchildren.
  But we need to pass laws here that will make matters better, not make 
matters worse. We need to pass laws here that are clean, that will make 
the law clear and not murky. I think Senator Feinstein's substitute--
she wrote it with the Laci Peterson family in her heart. She wants to 
make sure criminals who would attack a pregnant woman are brought to 
justice and we don't get diverted to some other issues.
  I am proud to stand with my colleague on this one. I know how hard 
this is. I know how hard she has worked. I will support her substitute 
very proudly, knowing it is the right thing to do, to crack down 
against these heinous crimes and to protect pregnant women.
  I thank her very much, and I yield the floor and reserve the 
remainder of Senator Feinstein's time.
  The PRESIDING OFFICER. Who yields time? The Senator from Kansas is 
recognized.
  Mr. BROWNBACK. Mr. President, on behalf of the Senator from Ohio, I 
yield myself such time as I might consume on his side.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator is recognized.
  Mr. BROWNBACK. Mr. President, I inquire first how much time is 
remaining for the Senator from Ohio.
  The PRESIDING OFFICER. There are 41 minutes remaining on the 
Senator's side.
  Mr. BROWNBACK. Thank you, Mr. President.
  I thank my colleagues for being here to participate in a difficult 
debate. I have a difficult set of stories I want to tell. If any of the 
individuals here in this body, or watching, are interested in talking 
to the individuals involved, they are actually outside in the lobby. I 
invite anybody to come out. There are grandparents, mothers of 
victims--there are the women who themselves were assaulted and lost a 
child. They are here. For those individuals here would care to visit 
with them, they would love to have a chance to tell their story.
  The question is simple: do we have one victim or two involved in 
violent crimes such as these? That is the simple question. I will 
present a series of case studies to my colleagues and then I will ask 
my question again--colleagues, do we have here one victim, or two?
  We start with the story of Christina and Ashley Nicole Alberts. We 
have a chart which presents a heartbreaking picture. I think it needs 
to be shown to better tell the story. This is a gut-wrenching picture 
of Christina and Ashley Nicole Alberts (you can see them there in the 
coffin). It is a difficult picture. This body needs to know what the 
Unborn Victims of Violence Act is about--the victim.
  I ask my colleagues to bear in mind that the Unborn Victims of 
Violence Act states there are two victims--there are two victims in 
this picture. The amendment we are considering right now, the Feinstein 
amendment, says there is only one victim--one victim in this picture. I 
simply ask my colleagues to make that determination. Is there one 
victim or are there two in this picture? Here is the story.
  In December 1998, Christina was nearly 9 months pregnant.
  Ashley was looking forward to life with her soon-to-be-born daughter 
whom she could definitely feel moving, alive and well, and growing in 
her womb. When she found out she was going to have a girl, she decided 
to name her Ashley Nicole.
  However, this earthly life--which all of us living and breathing here 
today enjoy--tragically came to a screeching halt for Christina and 
Nicole on December 12, 1998. On that day, some thugs were going around 
robbing homes for money. The thugs entered the house where Christina 
was. Christina recognized one of them, and because she recognized one 
of them, it cost her and her baby Ashley Nicole their lives.
  Christina was beaten. Can you imagine someone beating a woman in the 
ninth month of her pregnancy? Yet they did. I think of my own family 
and my own wife if she were in that type of situation.
  Christina was then forced to kneel, and she was executed--shot in the 
head. Once the trigger had been pulled, releasing the bullet that 
abruptly ended her life, one might think at least the physical pain 
from the crime was over for Ashley Nicole. It was not. When her 
mother's heart stopped, her inutero child does not die instantly. 
Instead, the inutero baby dies slower. When the mother's heart stops 
beating, the baby begins to suffocate for lack of oxygen. The baby can 
feel. The baby is in pain. At 4 minutes, the baby begins to suffer 
severe neurological damage. The process gets worse. Ashley Nicole would 
have finally died 15 minutes after her mother Christina had been shot 
and killed.
  Look at this photo again of Christina and Ashley in the coffin. Is 
there one victim? Or are there two? Who will say there is only one 
victim in this coffin? Yet this substitute amendment we are considering 
will say there is only one victim.
  What about the family? What about Ashley Nicole's grandparents? What

[[Page 5195]]

happened to them after the murders? Christina and Ashley Nicole lived 
in Kanawah County, West Virginia.
  Her grandmother is here today.
  In addition to the horrific news of their daughter and 
granddaughter's murder, they were further traumatized to learn the West 
Virginia murder statute does not allow the prosecution of an individual 
for the murder of an unborn child.
  Do you know what happened in the murder trial for Christina and 
Ashley's killer? Christina's pregnancy could not even be discussed in 
court. Any recent photos of Christina shown during the trial could only 
show facial shots. Why? Because the court said any pictures of 
Christina in which it would have been obvious she was pregnant would 
have been prejudiced.
  I ask my friends from West Virginia to support their constituents, 
the Alberts, by opposing the Feinstein substitute and voting for 
passage of unamended Unborn Victims of Violence Act.
  I have another story to tell--Heather Fliegelman Sargent.
  In this picture with her mother, as you can see, 20-year-old Heather 
was well into her pregnancy. Heather was 8 months pregnant with her son 
Jonah.
  I also point out that her mother and the grandmother of Jonah are 
here with us today in the lobby, if people should care to visit with 
her.
  Sadly, both the lives of Heather and Jonah were taken in January 
2003, over a year ago. Heather was found dead with multiple stab wounds 
in her home in Bangor, ME. Her husband Roscoe Sargent was tried on 
one--only one--count of murder.
  The Bangor Daily News reported on January 10, 2003: ``That Heather 
Sargent was pregnant did not affect the charges brought against her 
husband . . . No matter how advanced the pregnancy, Maine's homicide 
law does not apply to unborn fetuses.''
  But listen to this. Another news story on that same day, January 2, 
2003, tells us that ``Police also reportedly found several dead cats at 
home. Whoever killed the cats faces charges under the State's animal 
welfare act, while no charges will stem from the death of the unborn 
baby.''
  Is it even remotely rational to charge someone with the death of 
these cats and yet not charge them with the death of a viable 8-month-
old baby?
  As we move to the next chart in the same case, I want to pause for a 
moment and urge caution for any parents who may be watching with young 
children present. They may not want to view this. It is a serious 
matter, and these are real life stories that people need to hear. But, 
nonetheless, they are difficult.
  I would simply ask as we move to the next chart, are we looking at 
one victim or two? On the left in the chart is Heather before she was 
stabbed to death, and on the right is Jonah who also died in the 
attack.
  The grandmother of Jonah is here with us today.
  I hope Senators will hear the pleas of their constituents--the family 
of Heather and Jonah who are here in the Senate today watching, as I 
noted. Please, in their behalf, on behalf of Heather and Jonah, oppose 
this substitute that says there is only one victim.
  The Feinstein substitute would increase penalties for Federal crimes 
in which a pregnant woman is a victim, but it would also write into 
Federal law the doctrine that such a crime has only a single victim. If 
we pass this Feinstein amendment, and a mother survives such an attack, 
she will be told, ``We can prosecute your attacker for assault but not 
for murder--the law says nobody died.''
  This cannot and should not be. On behalf of Heather and Jonah, I urge 
my colleagues to oppose the Feinstein substitute and support the 
underlying bill un-amended.
  I have another story to tell. This picture shows the late Ashley 
Lyons of Kentucky. Ashley was killed when she was 21 weeks pregnant 
with her son Landon, in January of this year--just 3 months ago.
  Her parents and Landon's grandparents are here today. They are in the 
lobby, if anybody would care to meet with them. I have met personally 
with them. They are very passionate about this case and about what took 
place. If Ashley and her son Landon were with us today, they would be 
planning for Landon's birth in just a little over a month. I have a 
staff member who is expecting a child in a little over a month, so this 
really hits home.
  Rather than telling the story of Ashley and Landon myself,I would 
like to read their story as it was written by the mother and 
grandmother, Mrs. Carol Lyons. As I noted, Mrs. Carol Lyons is with us 
here today, along with her husband Buford. It was their efforts that 
helped get an unborn victims law passed in Kentucky--too late for their 
daughter and grandson, but not too late for other victims.
  I will read you this story which actually quotes Ashley, as written 
by her mother, the grandmother of Landon. It was written February 25, 
2004.
  I note parenthetically that if this crime had happened on a military 
base where only Federal law applies, there would be only one victim--
not two--unlike California law, which acknowledges two victims of 
violence.
  Ashley's mother writes:

       On January 7, I was seeing my grandson, Landon, for the 
     first time. Landon was moving around in an ultrasound image 
     on the TV screen in our home in Stomping Ground, Kentucky. We 
     could clearly see Landon's little heart beating. We could see 
     his little face. Just a few hours later, Ashley and Landon 
     were both dead. They were found murdered--shot to death in a 
     local park.

  Later, I found a journal that Ashley had been writing to her baby. 
Right at the beginning, when she was only two months pregnant, she 
wrote how she had rejected advice to get an abortion.
  Clearly Ashley made a choice to have a child. She wrote in her 
journal: ``I couldn't do that. I already loved you.''
  Ashley also wrote: ``You are the child I have always dreamed about. I 
know that it will be a long time before I meet you, but I can't wait to 
hold you for the first time. I love you more everyday. Always, Mommy.''

       Yes, the killer took two lives--each with a long, bright 
     future ahead. It is heartless and cruel to say that the law 
     must pretend this is not so, in order to preserve ``choice'' 
     on abortion. Ashley had made her choice--and she chose life.

  This, again, is her mother Carol speaking.

       Our case has been widely reported in Kentucky. In response, 
     both houses of the legislature passed a strong fetal homicide 
     bill, and on January 20th, Governor Ernie Fletcher signed it 
     into law.
       I pray that Congress, too, will soon pass the Unborn 
     Victims of Violence Act, which will allow a criminal to be 
     charged for any harm he does to an unborn child during 
     commission of a Federal or military crime.
       Of course, laws are not retroactive, so no laws enacted now 
     will allow full justice to be done on Landon's behalf.
       But they will ensure in the future no mother, grandmother, 
     or other family member will ever again be told that the law 
     is blind to the loss of a child who is unborn but already 
     living and loved.

  I ask my colleagues to listen again to Ashley's words to her child 
Landon--both victims, both were murdered:

       You are the child I have always dreamed about. I know it 
     will be a long time before I meet you, but I can't wait to 
     hold you for the first time. I love you more every day. 
     Always, Mommy.

  I ask my colleagues, is there one victim, or are there two? Is it one 
victim or two when Ashley and Landon were murdered?
  I have another case--unfortunately, there are too many of these 
cases--that demonstrates why this law needs to be dealt with. Here is a 
picture of Tracy Marciniak holding her son Zachariah 12 years ago. This 
is a case from Wisconsin.
  We all have precious baby photos. I have five children, and I love 
each of them and have precious photos. This should be a happy baby 
photo, but if you look closely, you will see it is not. You can see it 
by the look on Tracy's case, by the coffin behind her, and by the 
funeral flowers. Tracy's son Zachariah is dead and she, Tracy, 
survived, and is here today. If people would like to visit with her, 
she is in the lobby.
  In 1992, in Wisconsin, Tracy was terribly beaten. She lived and her 
son Zachariah died. I have spoken with Tracy, and I have heard how the 
loss of Zachariah hurts her to this very day.

[[Page 5196]]

Regrettably, justice was not served. Was Tracy and Zachariah's 
assailant charged with the murder of Zachariah? No. In Wisconsin, law 
enforcement authorities told Tracy's family they could only charge the 
attacker with assault; in the eyes of the law, no one died.
  What is more, Tracy's attacker says he would not have attacked her if 
he could have been charged with murder. Let me state that again: If 
Tracy's attacker had known he could have been charged with murder, he 
would not have attacked her.
  I would like to read a portion of Tracy's July 8, 2003, testimony in 
front of the House Judiciary subcommittee, where she has spoken about 
this case before. This is Tracy Marciniak's statement:

       I respectfully ask that the members of the subcommittee 
     examine the photograph that you see before you. In this 
     photo, I am holding the body of my son, Zachariah Nathaniel.
       Often, when people see the photo for the first time, it 
     takes a moment for them to realize that Zachariah is not 
     peacefully sleeping. Zachariah was dead in this photograph. 
     This photo was taken at Zachariah's funeral.
       I carried Zachariah in my womb for almost nine full months. 
     He was killed in my womb only five days from his delivery 
     date. The first time I ever held him in my arms, he was 
     already dead. This photo shows the second time I held him--it 
     was the last time.
       There is no way I could really tell you about the pain I 
     feel when I visit my son's grave site in Milwaukee, and at 
     other times, thinking of all we missed together. But that 
     pain was greater because the man who killed Zachariah got 
     away with murder.
       I know that some lawmakers in some groups insist there is 
     no such thing as an unborn victim, and that crimes like this 
     have only a single victim--but that is callous and it is 
     wrong. Please don't tell me that my son was not a real victim 
     of a real crime. We were both victims, but only I survived.
       Zachariah's delivery date was to be February 13, 1992. But 
     on the night of February 8, my own husband brutally attacked 
     me in my home in Milwaukee. He held me against a couch by my 
     hair. He knew that I very much wanted my son. He punched me 
     very hard, twice, in the abdomen. Then he refused to call for 
     help, and prevented me from calling.
       After about 15 minutes of my screaming in pain that I 
     needed help, he finally went to a bar and from there called 
     for help. I and Zachariah were rushed by ambulance to the 
     hospital, where Zachariah was delivered by emergency 
     Caesarean section. My son was dead. The physicians said he 
     had bled to death inside me because of blunt-force trauma.
       My own injuries were life-threatening. I nearly died. I 
     spent three weeks in the hospital. During the time I was 
     struggling to survive, the legal authorities came and they 
     spoke to my sister. They told her something that she found 
     incredible. They told her that in the eyes of Wisconsin law, 
     nobody had died on the night of February 8.
       Later this information was passed on to me. I was told that 
     in the eyes of the law, no murder had occurred. I was 
     devastated.
       My life already seemed destroyed by the loss of my son. But 
     there was so much additional pain because the law was blind 
     to what had really happened. The law, which I had been raised 
     to believe was based on justice, was telling me that 
     Zachariah had not really been murdered.
       Before his trial, my attacker said on a TV program that he 
     would never have hit me if he had thought he could be charged 
     with killing an unborn baby.
       My family and I looked for somebody who would help us 
     reform the law so that no such injustice would occur in our 
     state in the future. We found only one group that was willing 
     to help, Wisconsin Right to Life. They never asked me my 
     opinion on abortion or on any other issue. They simply worked 
     with me, and other surviving family members of unborn 
     victims, to reform the law.
       It took years. Again and again I told my story to state 
     lawmakers and pleaded with them, as I now plead with you, to 
     correct this injustice in our criminal justice system.
       Finally, on June 16, 1998, Governor Tommy Thompson signed 
     the fetal homicide law. This means it will never again be 
     necessary for state authorities in Wisconsin to tell a 
     grieving mother, who has lost her baby, that nobody really 
     died. Under this law, an unborn child is recognized as a 
     legal crime victim, just like any other member of the human 
     race.
       Of course, the state still has to prove anything beyond a 
     reasonable doubt to a jury, which is as it should be. But 
     when this bill was under consideration in the legislature, it 
     was actually shown to some of the former jury members in our 
     case, and they said if that had been the law at the time I 
     was attacked, they would have had no problem convicting my 
     attacker under it.

  Next, I present a statement from Ms. Shiwona Pace of Arkansas. Ms. 
Pace suffered a horrible tragedy. She was severely beaten by several 
attackers, and as a direct result, her baby, whom she had named Heaven, 
died. Fortunately, Arkansas passed an unborn victims of violence law 
prior to the crime committed by Ms. Pace's assailants. Under the 
Feinstein amendment, Ms. Pace's assailants would not have even 
committed a crime, other than assault. Please listen to her plea to 
legislators.

       My name is Shiwona Pace. On August 26, 1999, I was a 23-
     year-old college student in Little Rock. I was the mother of 
     two--my five-year-old son, and an unborn baby girl named 
     Heaven Lashay.
       August 26 was one day before my predicted full-term 
     delivery date. But that night, three men brutally murdered my 
     unborn baby daughter. I curled up face down on the floor, 
     crying, begging for them to stop beating me. But they did not 
     stop. One shouted, ``F*** you! Your baby is dying tonight!''
       They choked me, punched me, hit me in the face with a gun. 
     They kicked me again and again in the abdomen. After about 
     thirty minutes, they left me sobbing there on the floor. At 
     the hospital, they found that Heaven had died in my womb. She 
     was a perfect baby, almost seven pounds.
       The assailants were arrested. They had been hired by Erik 
     Bullock, my former boyfriend. He paid them $400 to kill 
     little Heaven Lashay.
       Only a month before, a new state law took effect that 
     recognized unborn children as crime victims. If that law had 
     not been enacted, Erik Bullock would have been prosecuted 
     only for the assault on me, but not for the death of my baby.
       But thanks to the state law, Bullock was also convicted for 
     his role in killing my baby. The men who attacked me are also 
     being prosecuted for what they did to Heaven.
       I tell my story now for one reason: If this same attack 
     occurred today within a federal jurisdiction, the men who 
     killed my baby would be prosecuted only for assault. That is 
     why I urge members of Congress to support the Unborn Victims 
     of Violence Act, which would recognize unborn children as 
     victims under 68 federal laws dealing with crimes of 
     violence.
       I was dismayed to learn that some members of Congress 
     oppose this bill, and insist on adoption of a radically 
     different [version] that says that such crimes only have one 
     victim--the pregnant women.
       This is not the same as what would happen under the 
     Feinstein amendment. They are wrong. On the night of August 
     26, 1999, there were two victims. I lived--but my daughter 
     died. I lost a child, and my son lost the baby sister he had 
     always wanted--but little Heaven lost her life.
       It seems to me that any congressman who votes for the 
     ``one-victim'' amendment is really saying that nobody died 
     that night. And that is a lie.

  Then we have the well-known case of Laci and Conner Peterson in 
California that has been spoken of previously. This is a statement from 
Sharon Rocha, Laci Peterson's mother, and Conner Peterson's 
grandmother. She has spoken out often on this issue. This is a 
California case that is well known and has probably done as much to 
bring this up today on this floor as anything else we have examined.
  This is from Sharon Rocha's statement. I will read a portion of it:

       As you know, Laci and Conner were cruelly murdered. In this 
     difficult time, my family is grateful that under California 
     law the murders of Laci and Conner can both be prosecuted. 
     But for the families of many other murder victims across the 
     country, there can be no such comfort. Federal law does not 
     recognize that these crimes have two victims.


  So California law does recognize it.

       When I became aware that Congresswoman Melissa Hart was 
     working on a bill to correct this problem, I contacted her to 
     express my support. I asked her to name it ``Laci and 
     Conner's Law'' in memory of my daughter and grandson. I am 
     grateful to Congresswoman Hart, the House leadership, and the 
     many congressmen, both Republicans and Democrats, who have 
     agreed to support this common-sense legislation. I thank 
     President Bush for his willingness to sign it into law.

       The House of Representatives has shown their support for 
     this law by approving it twice thus far, but the Senate has 
     consistently failed to act. I call on every Senator to vote 
     for this bill, so that the law will do justice for families 
     of murder victims--families like mine. It is time for the 
     Senate to stand up for innocent victims like Conner.

  These are real stories. They are tough stories. But they speak to the 
situation in this country today. This type of crime happens all too 
frequently. Unfortunately, there are more cases that we could mention.
  I wanted to put a real face on this issue for my colleagues, and to 
ask them this simple question when they vote on the Feinstein 
substitute: How

[[Page 5197]]

many victims are there? Is it one victim, or are there two? That is the 
real decision in regard to this amendment.
  I urge a vote against the Feinstein amendment.
  I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Kansas yields the floor.
  Who yields time?
  The Senator from California is recognized.
  Mrs. FEINSTEIN. Mr. President, it is extraordinarily difficult to 
respond to the litany of atrocities the Senator from Kansas has just 
enumerated. I cannot help but wonder: What kind of animal can do this 
to a woman who is 7 or 8 or 9 months pregnant? I cannot help but wonder 
how our society produces men who would do this kind of thing to a 
woman. I cannot help, as a mother and a grandmother, to share with 
those for whom this is a life scar that will never, never heal.
  And I understand it. I understand the need to want to punish, and 
understand the need to want to say this child--who is so close to 
birth, who would be capable of life outside of the womb at that 
moment--is a victim because, in fact, that child is a victim. I 
appreciate that and I understand it.
  One of the reasons at the beginning of my remarks I said this bill is 
so controversial is because definitions have different meanings in law. 
The controversial part in the underlying bill is the definition of 
``child in utero'' and ``child, who is in utero'' because the bill 
language is: ``means a member of the species homo sapiens,'' in other 
words, a person, ``at any stage of development''--``any stage of 
development,'' not when the fetus is what they call ``quick,'' which 
means it is capable of movement; not when it is viable, which means it 
is capable of life outside the womb; but at ``any stage of 
development.''
  This is what causes the problem in the law once you set it in the 
law. That is what is so distressing about this bill. Because every 
Member of this Senate wants to vote yes. Every Member of this Senate 
wants to say: Throw the book at that animal. Who could be so callous? 
Who could be without any morality? Who could be so cruel? Who could 
practice such a heinous crime? Who could punch a 9-month pregnant woman 
in the stomach to the extent that it causes the killing of her unborn 
child?
  So I am there. I am there entirely. I am there completely. But, 
again, it is complicated because the definition we are working from 
gives rights at the point of conception. It does not differentiate. It 
does not say the 8-month-old baby or the 7-month-old baby, who is 
capable of life today, is what we are talking about. It says the 
recently fertilized egg is what we are talking about. That is the 
difference.
  It is so hard, because you stand here and you listen and your heart 
goes out, and you think of these beautiful women and their beautiful 
children, and some animal comes at them, and in some cases kills them 
both, in some cases kills one, and in some cases kills the other. Sure, 
throw the book at him.
  I will go a step further. I would give them a death penalty because 
they have taken two lives, and I do believe a child at that period of 
gestation is a life.
  The problem is the bill language, which begins this at the point of 
conception.
  Now, every single case presented on this Senate floor this morning is 
of a child who is viable outside of the womb. But the bill covers 
children that are not children; that are a day old in the womb, that 
are at conception. That is the problem we have with this bill. Because 
once you give an embryo, at the point of conception, all of the legal 
rights of a human being, and you have said that embryo, then, if it is 
lost to humankind, is murdered, you have created the legal case to go 
against Roe v. Wade in Federal law for the first time in history.
  Now, California and the Laci Peterson case was mentioned a great 
deal. The prosecution of Scott Peterson will be conducted under 
California law, which has amended the definition of the penal code 
section 187--which is first degree murder--to refer to a fetus. But 
then other parts of law in California only imposes criminal liability 
starting at 7 to 8 weeks of gestation. So where the California law 
effectively covers exactly the situation that the Senator from Kansas 
is mentioning--all of those situations--it takes into consideration the 
period prior to 7 to 8 weeks of gestation.
  And, in fact, many other State laws do as well.
  The problem is this is a much more comprehensive definition that 
doesn't make any of the distinctions that are made by many of the 
States with respect to these criminal statutes. Many of them cover when 
the fetus has quickened, which means the fetus or the child is capable 
of movement, and many of them cover after viability.
  This creates the situation where the embryo has the rights of a 
person. That is the problem for many of us.
  The Senator from Ohio--and I think he knows I respect him; we have 
worked on so many things--says don't bring in the abortion debate. But 
I can't help but bring in the abortion debate because the proponents--
not the Senator from Ohio, but other proponents--have said ``this is 
part of our strategy--this is what we want to achieve.''
  Then you get somebody like me and Senator Boxer and other cosponsors 
who want to protect a woman's right to control her own reproductive 
system, particularly in those early months, who read this bill and see 
the definition and say: ``There is the ball game--here we lose big 
time.''
  It is like you say to me, ``gotcha,'' because I want to punish that 
guy who beat that woman to death, who killed her unborn child, because 
I know that child is capable of life. You know that child is capable of 
life. But to give that right to a fertilized egg or an embryo is a 
different thing. Your bill gives that right to a fertilized egg or an 
embryo or a zygote.
  Then, when I go out and I look at what people have said about the 
bill, I see these statements, such as the statement of Mr. Casey:

       In as many areas as we can, we want to put on the books 
     that the embryo is a person.

  This bill puts on the books that an embryo is a person, a member of 
the species Homo sapiens, in bill language. This bill establishes 
exactly what the right-to-life movement wants to establish, that an 
embryo is a person. That sets the stage for a jurist to acknowledge 
that human beings at any stage of development deserve protection. Once 
you have the embryo being a human being, then that human being at any 
stage of development deserves protection--meaning deserves rights under 
the law, which this establishes because it makes that embryo a victim--
even protection that would trump a woman's interest in terminating a 
pregnancy. Think of that, that would trump a woman's interest in 
terminating a pregnancy.
  Now, I am one who believes there should not be abortion if the baby 
is viable. I agree with Roe because it provides the woman choice in the 
first 3 months of a pregnancy where there is not viability. I lived and 
grew up at a time when abortion was illegal in California. I saw a good 
friend commit suicide because she was pregnant and in college. I saw 
women pass the plate so someone could go to Tijuana for an illegal 
abortion. You would say that is not relevant to this debate--``don't 
discuss it; don't bring it up in the Senate--just think about the 
mothers and the babies who were killed.''
  I want to do that, too. And I think about the mothers and the babies. 
I want to throw the book at those guys. And the death penalty, too. I 
don't have a problem with that because I believe by your actions, you 
can vitiate your own right to live. That has been true for me since 
1971, as well. That has been my consistent position.
  But once in a statute you create a fertilized egg as a human being 
with specific rights, the march to eliminate Roe v. Wade is on its way 
in statute. That is what is happening with this bill. That is what I 
object to. There is no reference to viability.
  I have the list of what all the States do. They all do different 
things. Many of them recognize it. For example,

[[Page 5198]]

seven States impose criminal liability starting when a fetus is quick, 
in other words, capable of movement: Florida, Georgia, Mississippi, 
Nevada, Oklahoma, Rhode Island, Washington. Seven States impose 
criminal liability starting at the point of viability: Florida, 
Indiana, Massachusetts, Missouri, Oklahoma, South Carolina, Tennessee. 
So there are many differences. Different States do different things, 
even when they have this law.
  But what this does, what this underlying bill does, is say from the 
moment of conception there is a baby and that baby is a human being and 
that baby has rights.
  That is a problem in the criminal law. As the Stanford law professor 
pointed out, if a case comes before the court where, let's say, a woman 
was assaulted and she was 3 days pregnant, and the forensics could 
establish that she was 3 days pregnant, and you are voir-diring people 
for a jury and you are telling them that there is a second victim, and 
it is a fertilized egg that is 3 days old and there is a 20-year charge 
pending or life imprisonment pending for that 3- or 5-day-old 
fertilized egg, then this is what the law professor meant when he said: 
``You are going to get the very people who are the most interested in 
protecting the woman being reluctant to go on that jury.''
  Not every case under this law is going to be post-viability, going to 
be like the cases that the Senator from Kansas brought forward, where I 
would say: ``Give the guy the death penalty.'' I wouldn't have a 
problem with that. They did terrible things, the acts of an animal. But 
that is not what this law says. That is the difference.
  What we have tried to do is say: If you end a pregnancy, if you harm 
a pregnancy, the same penalties would apply that apply in the House 
bill and Senator DeWine's bill.
  I wish this could have gone to the Judiciary. I wish it wasn't rule 
XIV. I wish I had an opportunity in committee, in markup, to make these 
points.
  Let me go over once again, so that everybody is crystal clear on the 
point of the creation of a separate offense, where a defendant violates 
any of the enumerated Federal crimes, our bills are identical. On the 
provision that the separate offense is punished the same as the 
violation of the enumerated Federal crimes, our bill is identical. On 
the provision that if the separate offense harms or ends the pregnancy, 
the punishment is the same as a violation would be for the underlying 
crime: murder, manslaughter, or assault, as appropriate. Our bills are 
identical.
  With respect to the provision of penalty for death of a fetus is a 
maximum life sentence, our bills are identical. With respect to the 
provision of penalty for harm to the fetus is a maximum 20-year 
sentence, our bills are identical. And both bills do not impose the 
death penalty. Where our bills are different--and this is important--is 
the definition of when life begins.
  The underlying bill defines life as beginning at conception.
  (Mr. Alexander assumed the Chair.)
  Mrs. FEINSTEIN. Mr. President, we do not address when life begins. I 
just read Justice Blackmun's opinion in Roe v. Wade. It is interesting, 
because he goes back to the Stoics, the Catholic Church, to the Middle 
Ages, and discusses the difference of opinion of when life begins, the 
difference of opinions in science. Then he reaches his conclusion that 
because these differences are so vast, the law generally does not 
directly enjoin that point of when life begins.
  That is the problem we have here. That is the dilemma the Senate 
faces. This bill is on a fast track. This bill has passed the House. 
This bill has been subject to a Rule XIV, without a hearing, from the 
year 2000. You have heard the most poignant, disturbing, heartrending 
stories on this floor. I respond to them like everybody else does. But 
I also know if you give a fertilized egg rights in the Federal law, it 
is going to have repercussions downline. If you declare in this bill 
you can prove a 1-day-old fertilized egg was a victim and therefore 
murdered, how do you turn around and say in another law you can proceed 
with embryonic stem cell research? You have the same 1-day-old 
fertilized egg. If it is murder here, is it not murder there? What are 
the repercussions of doing that? They are enormous.
  The other side doesn't talk about this. They talk about women who are 
7 or 8 or 9 months pregnant. They talk about the most heinous and 
brutal assaults. But the bill does much more. The bill says a 1-day-old 
fertilized egg is a member of the species Homo sapiens. Translation: It 
is a person. Translation: It is a human being.
  That is the problem, and this Senate, before it passes out this bill, 
should understand it and should understand there is an alternative, and 
the alternative aims to impose the same penalties, but doesn't create 
that victim fertilized egg, 1 day old--by nobody's stretch a human 
being--possible of becoming a human being, but not a human being. I 
have live cells, but they are not capable of producing life.
  But once the child, the fetus in the womb, is capable of living, that 
is a different story. I am the first one to admit that is a different 
story. But everything in this bill, the underlying bill, goes back to 
the basic definition of what is being done here, and that is that 
personhood, life, is being given to a 1-day-old fertilized egg.
  Now I have one child biologically, I have three stepdaughters, and I 
have five grandchildren. I have seen close friends--I know the glory of 
motherhood. I know the catastrophe that takes place when you lose a 
child. I have had miscarriages, so I understand that. But then there is 
the march to turn back the clock to when I was in college and abortion 
was illegal. Then after college, when I went out into the world, I 
actually sentenced women convicted of abortion in the State of 
California in the State prison. I saw the terrible morbidity and the 
terrible things they did illegally in back-alley abortions. At that 
point, I said this is so terrible. Then Roe v. Wade passed in 1973, and 
a woman could control her own reproductive system, particularly in that 
first trimester. I thought to myself, we should never go back to the 
way it was.
  My concern about the underlying bill is it is the first bridge to 
take us back to the way it was because of the definition that is in 
this bill, which gives human rights to a 1-day-old fertilized egg in 
utero. That is the problem for me. That is the problem for a lot of us 
in the Senate. Whether it will be enough, I don't know.
  I tried to perfect the bill. Remember, this was a rule XIV. We didn't 
have a chance to mark it up. I tried to perfect it. Unfortunately, I 
was not granted the usual privilege of being able to send a modified 
amendment to the desk. But the intent is clear. I have made it crystal 
clear in my remarks. We will have the same penalties for the same 
crimes as the underlying bill. We will avoid one thing, and that is 
determining when life, for the purpose of law, actually begins.
  I yield the floor. How much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 23 minutes 40 seconds.
  Mrs. FEINSTEIN. Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. In a moment, I will yield to my colleague from South 
Carolina.
  Mr. President, before I yield to my colleague, I want to respond very 
briefly to my colleague and friend from California in regard, again, to 
the question of abortion. My colleague is concerned--I understand her 
sincerity because she has expressed it many times on the Senate floor. 
I don't doubt that sincerity at all--that somehow this bill sets a 
precedent regarding abortion.
  First of all, we all know statutes cannot overcome the Supreme Court 
decisions, constitutional law. We should not be concerned about what 
the statute will do. We particularly should not be concerned when we 
know many of the States have statutes very similar to what we propose 
to enact today. In fact, several of the States have had these statutes 
in place for up to 30 years. They have not in any way changed or 
infringed on abortion rights. Whatever one might think of

[[Page 5199]]

abortion rights, these have not affected them and this bill will not 
affect them. To make sure of that, we put provisions in this statute, 
which I have read on the floor today, which make it crystal clear they 
will not in any way affect that. So we have precedent.
  We have the fact that statutes cannot interfere with constitutional 
law, plus we have precedent of many years of experience of State laws 
not interfering with abortion rights. So there is just no reason for 
anybody, when they come to the floor to vote on this, to think this is 
in any way going to affect abortion rights at all.
  My friend has talked about the fact that we follow what I believe 16 
States have done when we begin to protect the unborn. Some States 
define it differently. My colleague has cited what California and some 
States do. They are defined differently. But we follow in this statute 
what some others States have done.
  In our proposed statute, we use this language, and I would say it is 
not what my colleague, with all respect, has said. This is what the 
language is:

     . . . who is carried in the womb.

  ``Who is carried in the womb,'' that is the language, the precise 
term that is used, ``carried in the womb.''
  As a practical matter, since this is a criminal statute, we all know 
that to prosecute under this statute, a prosecutor would have to prove 
beyond a reasonable doubt, to prosecute under this law, that there was 
this unborn child. They would have to prove the existence of the child. 
And then they would have to prove there was death or injury to the 
child beyond a reasonable doubt. They have to prove the existence, 
first of all, beyond a reasonable doubt, and then they have to prove 
the death or injury beyond a reasonable doubt.
  It is not, with all due respect, a question of at the moment of 
conception that this protection, as a practical matter, would kick in. 
First, it has to be carried in the womb; second, you would have to be 
able to prove the existence and then prove there was injury or prove 
there was death. That is the practical application of the statute we 
propose to pass.
  I yield to my friend and colleague from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, how much time remains?
  The PRESIDING OFFICER. Eleven minutes.
  Mr. GRAHAM of South Carolina. Will the Chair notify me when I have 
used 4 minutes?
  The PRESIDING OFFICER. Yes.
  Mr. GRAHAM of South Carolina. Mr. President, I wish to speak to how 
the bill was drafted and why.
  Senator DeWine articulated it well. You have to prove the pregnancy, 
and we defined the pregnancy like 16 other States. That is the dominant 
way of defining the child for the purpose of this statute. Thirteen 
States have a different view of it. In California, I think the law is 
at 6 weeks. If you can prove the child is beyond 6 weeks--not viable 
but beyond 6 weeks--the law kicks in.
  In 1999, when we first drafted this statute--Senator DeWine was 
carrying it in the Senate, I carried it in the House, and we are 
finally coming together to have a vote--it never made sense to me, if 
you believe this is not about abortion--because it is not; we wrote it 
so it is not--why would you give a criminal a break who destroyed a 
family's life in two ways, not one?
  You are not going to prosecute medical researchers under this 
statute. You have to hurt the mother. This is not about medical 
research. It is not about abortion. It is about criminals who attack 
pregnant women.
  Why would you give the criminal a break at 3 weeks? You could prove 
the baby has been around for 3 weeks. The criminal just totally gets 
away with it.
  The Feinstein amendment--as much as I like Senator Feinstein, and she 
is truly one of my favorites--nobody goes this way because this is not 
the way you would want to go if you are prosecuting criminals. You do 
not want to ignore the reality of what happened to this family and to 
these victims. This is not about abortion. If it was abortion law, you 
would not have any prosecutions except until the late terms of the 
abortion. Why would you let a criminal do that? This is not about a 
mother's right to choose. Under the statute, you cannot prosecute the 
woman at any time. You cannot do anything about abortion rights because 
the statute protects lawful abortions.
  For 30-something years in California, they had the ability to 
prosecute criminals who attacked pregnant women and have Roe v. Wade 
rights. Look in the phonebook anyplace in California and you will find 
people who will provide a lawful abortion. Look at the criminal law and 
you will find a statute that allows people to be put in jail who attack 
a pregnant woman and do damage to her unborn child at the 6-week 
period.
  My point is, when criminals attack pregnant women, don't play this 
game of the abortion debate. Don't bring it over here. The reason we 
voted 417 to 0 in the House was to prevent an execution of a pregnant 
woman at the earliest stages of pregnancy. It does no good to kill the 
chance of that child to grow to render justice to the mother.
  With a vote of 417 to 0, the House adopted the same definition as 
this statute because the purpose of that statute was to prevent the 
State from executing a woman who we know to be pregnant at the early 
stages of a pregnancy. The reason being, it does no good. It does not 
advance Roe v. Wade. It just does something you do not need to do to 
render justice. You do need the ability to bring two prosecutions at 
the earliest stages of pregnancy to render justice for those who choose 
to violently assault pregnant women. No medical researcher is going to 
be harmed. We will have the stem cell debate. The Roe v. Wade rights 
that exist today are not going to be eroded. They have existed in 
conjunction with these statutes for years and years, and that debate 
will go on for years and years. But here is what is likely to happen.
  The PRESIDING OFFICER. The Senator has used 4 minutes.
  Mr. GRAHAM of South Carolina. There will be, unfortunately, human 
nature being what it is, another assault against a pregnant woman where 
Federal jurisdiction would exist if we have this statute. It is going 
to happen because people are mean, people are cruel, and they need to 
be dealt with when they are mean and cruel.
  The Senate enhancement option has been rejected by everybody who 
looked at this because it does not render justice. It creates a legal 
fiction that is not necessary and destroys the whole purpose of this 
statute.
  I mentioned the Arkansas case. Three teenagers were prosecuted for 
beating up a pregnant woman for the purpose of making sure one of them 
did not have to pay child support. They are not on death row. I 
misspoke. One of them received 40 years, one received life 
imprisonment. It was a capital statute, but it was not a death penalty 
case. I was wrong. I apologize.
  The PRESIDING OFFICER. The Senator used 5 minutes.
  Mr. GRAHAM of South Carolina. Five more seconds.
  The Laci Peterson case is a death penalty case because there are two 
victims.
  All we are saying is Federal law should address reality. When Michael 
Lenz lost his wife in the Oklahoma City bombing incident, he also lost 
his son, Michael Lenz III. All I am asking for is that justice be 
rendered in cases such as that. When somebody chooses to destroy a 
family--the mother and the unborn child--let them pay a severe price, 
and let's debate abortion another day, another time, and not interject 
it into a statute where it should not be interjected.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, could you give us the time remaining 
on both sides, please?
  The PRESIDING OFFICER. Yes. The Senator from California has 23 
minutes remaining. The other side has 5 minutes remaining.
  Mrs. FEINSTEIN. I thank the Chair. Mr. President, this is a difficult 
discussion because I am very fond of both the Senators with whom I am 
debating. However, I certainly do not agree with

[[Page 5200]]

the statement the Senator from Ohio just made with respect to the 
definition that is in the bill.
  I will read the definition that is in the bill. The term ``a child 
who is in utero'' means:

       A member of the species Homo sapiens at any stage of 
     development who is carried in the womb.

  The one thing neither Senator DeWine nor I know is how fast the egg 
gets to the womb, but I think it is pretty fast.
  I just had a note passed to me by someone more erudite than I. I 
think we can all put this in our lexicon.
  It takes about 7 days for a fertilized egg to get to the womb, but 
there is also the belief the underlying bill applies at the moment of 
conception. Let us say the egg gets to the womb in 7 days. The problem 
those of us on this side of the aisle have with the bill is it gives 
the status of a human being to that egg as soon as it is in the womb, 
and that creates for the first time in Federal criminal law a scenario 
whereby if that egg is hurt, criminal assault charges, criminal 
manslaughter charges, criminal murder charges can be brought because 
that egg, at any stage of development--they do not use trimesters, they 
do not use any way of deciding the development--at any stage of 
development, that egg in utero is a member of the species Homo sapiens, 
and that is where this, for criminal purposes, becomes so difficult.
  That is why the letter from the professor from Stanford, who runs the 
criminal prosecution unit at Stanford Law School, becomes so relevant, 
because let's say I am in a jury pool and a woman has been beaten up 
and she was 7 days pregnant--at that moment it is a fertilized egg--and 
she lost the fertilized egg, and I was told the penalty would be an 
additional 10 years in prison because she lost that egg. Well, I would 
have to make a decision as to whether I want to be on that jury. So 
what the professor says is this can actually work contrary to our 
intent, particularly in these early cases.
  He also said he suspects it is dependent on the administration as to 
whether early cases will be brought to a court or not, but the point is 
we cannot make that decision. We cannot say this is only going to be 
used when a mother is 7 months, 8 months, or 9 months, pregnant. In the 
horrific circumstances described by the Senator from Kansas, which got 
all of our hearts beating faster, we cannot assume that all cases will 
be of that type. The legislation clearly says for the purposes of 
definition the child is defined from the point it is in the womb at any 
stage of development as a child, as a person, with rights. That is the 
dilemma and that is why we have tried to craft a bill that does not do 
that, that says if someone harms or ends a pregnancy, they are subject 
to the same penalties.
  This body is going to have to decide--and it is a very hard question. 
I think this is one of the most controversial bills we have had. This 
is probably why this bill has been around for 5 years now. I think it 
had a hearing in Judiciary in 2000. It has not had a hearing since. It 
has been rule XIVed to the floor.
  Again, I wanted to make some small changes--I was not permitted to do 
so--by modifying my amendment. I believe, and my chief counsel 
believes, this bill provides the same penalties. The one difference is 
the definition is different. We use harm or end pregnancy, rather than 
that the unborn child becomes a child--well, that a child in utero and 
child who is in utero means a member of the species Homo sapiens, at 
any stage of development, who is carried in the womb. That is the 
problem and that is where for those of us who want to protect a woman's 
right to choose and who read the statements that are put out by the far 
right, we take them at their word that this is where they are going.
  I did not make this up. This is a rather well-known statement. It 
clearly says, ``In as many areas as we can, we went to put on the 
books,''--this statute on the books--``that the embryo is a person . . 
. ''
  For me, I am also very interested in being able to see that there are 
prudent regulations and Federal controls that will allow embryonic stem 
cell research. Well, if it is murder of a 7-day-old fertilized egg, 
then it is murder if it is used in stem cell research as well. That is 
where I think this is going.
  There are also statements by people who want to ban embryonic stem 
cell research that also say this is the strategy. So I say, why get 
into it at all? Why not just say, if someone ends or terminates a 
pregnancy, the same penalties will apply. That is what we have tried to 
do. That is the intent of what we are doing.
  I think the votes are very close. At this point, I will yield the 
floor, but I reserve the remainder of my time.
  Mr. DeWINE. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. Five minutes.
  Mr. DeWINE. And the Senator from California?
  The PRESIDING OFFICER. Fifteen minutes.
  Mr. DeWINE. I suggest the absence of a quorum, with the time to run 
equally on both sides.
  Mrs. FEINSTEIN. Equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DeWINE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. We are getting close to the end of this debate. I think 
there are just a few points about this amendment I would again like to 
stress. One is this whole debate today has nothing at all to do with 
abortion. I talked about that. I will not belabor the point. We have 
made that clear in the language we have written. It is set down in the 
precedent of States that have passed similar legislation. It has not 
had anything to do with abortion.
  If Members of the Senate truly believe what the vast majority of the 
American people believe, and that is there are two victims, then they 
have to turn down the well-intended Feinstein amendment. The Feinstein 
amendment tries to provide for enhanced penalties. I believe it is 
clear, from what I have spelled out a few moments ago, she has failed 
to do that, that there are no enhanced penalties. Even if there were, 
it is a contortion of the law and logic to deny the fact that when a 
pregnant woman is violently attacked and she loses her child, for the 
law to say we refuse to recognize there is a second victim, and that is 
what the Feinstein amendment, unfortunately, says. The Feinstein 
amendment denies the fact there is a second victim.
  We have heard on the Senate floor today, time and time again, these 
horrible stories that Senator Feinstein and I--our hearts go out to 
these victims. Everyone's heart does. But how can we say to these 
families that these children who were lost, sometimes the grandchildren 
who were lost, were really not, in the eyes of the law, victims?
  In the eyes of everyone else in society they are victims. Shouldn't 
the law also recognize them as victims? That is what we are saying with 
our bill. Unfortunately, the Feinstein amendment denies them that.
  I reserve the remainder of my time.
  Mr. KYL. Mr. President, I am pleased that the Senate is debating this 
sensible measure, and I certainly hope that the outcome will be the 
rejection of the two amendments and passage of the underlying bill. 
Such an outcome will lead immediately to the enactment of the Unborn 
Victims of Violence Act, as the legislation has already passed the 
House and the President has stated that he will sign it.
  The Unborn Victims of Violence Act would recognize an unborn child as 
a victim when he or she is killed or injured during the commission of a 
Federal or military crime. The gist of this debate is the question of 
whether there are one victim or two in such instances. Polling suggests 
that upwards of 80 percent of the American people believe that there 
are two victims, a view no doubt reinforced by the well-known case of 
Laci and Connor Peterson. It has been noted that when definitive 
evidence of foul play in that case came to light, two bodies washed up 
on

[[Page 5201]]

the shore, not one. The Unborn Victims of Violence Act would codify 
that common sense observation in Federal law.
  Opponents of the bill contend that the bill's ``two victims'' premise 
is ``unprecedented,'' but 29 State laws--including the law in 
California, where Laci and Connor Peterson were killed--relfect that 
exact understanding of what merits punishment when a violent crime is 
committed against a woman and her unborn child. It is the ``one 
victim'' idea the Feinstein amendment would inscribe in law that would 
depart form the understanding embedded in the State laws addressing 
this question.
  Finally, I sincerely hope that my colleagues--whatever their views on 
the question of one victim versus two victims--will firmly reject the 
amendment offered by the senior Senator from Washington State. I am 
very proud of my record of support for victims of domestic violence, 
and I believe that some of the ideas contained in the Murray amendment 
merit our consideration.
  But passing the amendment we are presented with today would be a 
serious mistake. First, I must note that the Murray amendment was 
obviously drafted in haste because it contains serious technical 
flaws--not the least of which is a provision that would--as I 
understand it--give an abusive family member the same rights as a 
victim!
  The Murray amendment would create an unpaid leave provision that is 
distinct from the provisions contained in the Family Medical Leave Act, 
FMLA, and State laws. This new leave provision would apply to employers 
with as few as 15 employees--compared to 50 for FMLA. FMLA applies to 
workers who have been employed for at least a year, but the proposed 
Murray leave program has no minimum requirements for length of service. 
Moreover, under this amendment, domestic violence leave could be taken 
without advance notice, and without corroborating evidence beyond the 
employee's own sworn statement. Given the extraordinary degree of 
uncertainty such a regime could create for employers, Congress must 
proceed cautiously here. To pass the Murray amendment today would be to 
flout that imperative.
  I strongly support the unamended version of this bill.
  Mr. LEAHY. Mr. President, acts of violence against women are always 
abhorrent, but they are especially disturbing when committed against 
pregnant women. When a violent crime causes injury to a pregnant woman 
that results in a miscarriage or other damage to the fetus, we all 
share the desire to ensure that our criminal justice system responds 
decisively and firmly to exact appropriate punishment. This is not an 
issue on which you will find any disagreement among Members of 
Congress, no matter their party affiliation or whether they are pro-
choice or anti-abortion. Protecting pregnant women and their families 
from violence is a serious and compelling problem that deserves to be 
elevated above political agendas and partisan politics.
  Today we consider a bill that proposes a new Federal crime to punish 
conduct that violates a list of over 60 existing federal crimes and 
``causes the death of, or bodily injury to, a child, who is in utero.'' 
The terms ``a child, who is in utero'' and ``unborn child'' are defined 
in this proposal to be ``a member of the species homo sapiens, at any 
stage of development.'' Through this proposal, we will be forced to 
revisit the divisive political debate about when human life begins and 
what is meant by these terms--whether, for example, the term ``any 
stage of development'' is intended to cover an unfertilized human egg 
or a zygote, and how far away from viability the proposal is designed 
to move the federal definition of a ``person.''
  Generally, our Federal and State criminal laws only penalize conduct 
that affects a person who was born alive. That does not mean we cannot 
or should not go further. I support additional punishment if a violent 
crime against a pregnant woman causes her to miscarry or otherwise 
injures the fetus. Senator Feinstein will offer an amendment on this 
point, which I support, and which I will discuss in a moment.
  While no other Federal criminal statute identifies a fetus as a 
distinct victim of crime, this does not mean that a fetus is left 
unprotected under our criminal laws. The Justice Department pointed out 
the obvious, in a letter dated September 9, 1999, to then-Chairman of 
the House Judiciary Committee, Representative Hyde. That letter states 
that ``[b]ecause the criminal conduct that would be addressed . . . is 
already the subject of federal law (since any assault on an `unborn 
child' cannot occur without an assault on the pregnant woman), [the 
bill] would not provide for the prosecution of any additional 
criminals.'' As Ronald Weich, a former prosecutor and former Special 
Counsel to the Sentencing Commission, noted in his February 2000 
testimony, defendants whose violent attacks against pregnant women 
resulted in harm to a fetus have been prosecuted, and thus ``it is very 
clear that criminal liability may be imposed under current federal 
law.''
  Moreover, the Federal Sentencing Guidelines already provide a 
sentencing enhancement of two levels where the defendant knew or should 
have known that the victim was a ``vulnerable victim,'' a term that is 
defined as someone who is unusually vulnerable due to age, or physical 
or mental condition. Guidelines Manual, Sec. 3A1.1(b)(1). This 
provision has been used to cover violent crimes against pregnant women. 
Mr. Weich described several cases in which a pregnant woman was treated 
as a vulnerable victim, resulting in enhancements and upward departures 
in the applicable guideline sentencing ranges for the defendants. 
Nevertheless, if there is any question about the application of these 
enhancements in violent crimes against pregnant women, we should 
clarify that matter promptly.
  Respectfully, it seems to me that this bill has not been crafted to 
find that common ground, nor designed to provide an effective means to 
prosecute or prevent violence against pregnant women.
  First, this bill unnecessarily injects the abortion debate into our 
national struggle against violence towards women. The Supreme Court in 
Roe v. Wade held that ``the word `person', as used in the Fourteenth 
Amendment, does not include the unborn.'' This bill purposely employs 
terms designed to undermine a woman's right to choose by recognizing 
for the first time in Federal law the legal rights of a person as 
applied to the earliest stages of development of a fetus, an embryo or 
an egg.
  Second, the National Coalition Against Domestic Violence has warned 
that a consequence of the bill is that battered women who are 
financially or emotionally reliant on the batterer may be less likely 
to seek appropriate medical attention if doing so could result in the 
prosecution of the batterer for an offense as serious as murder. We 
should pay attention to the experts about the consequences of 
legislative proposals such as this one, particularly when the experts 
say this bill could have devastating effects for victims of domestic 
violence.
  Finally, the bill ignores the problems of domestic violence, sexual 
assault and other forms of violence against women; in fact, the UVVA 
does not even mention the woman. In short, this bill ignores the 
reality that an attack that harms a pregnancy is inherently an attack 
on a woman.
  The senior Senator from California will offer a substitute amendment 
to S. 1019 that does what the Unborn Victims of Violence Act purports 
to do without wading into the political waters of the abortion debate. 
This amendment, commonly referred to as the Motherhood Protection Act, 
creates a separate, additional Federal criminal offense for harm to a 
pregnant woman. Under this legislation, the prosecutor may (1) charge 
the defendant with an offense against the woman, and (2) subsequently 
charge the defendant with the separate offense of interrupting--e.g., 
causing brain damage to the child--or terminating the normal course of 
her pregnancy. A defendant would face a maximum of 20 years in prison 
for interrupting the pregnancy

[[Page 5202]]

and a maximum of life imprisonment for terminating the pregnancy. Such 
sentences would be in addition to any penalties for the underlying 
federal crime. These terms of imprisonment reflect the same sentences 
included in the UVVA.
  Senator Feinstein's amendment addresses harm to a pregnant woman, 
while recognizing the loss she suffers through injury to the fetus. By 
excluding the language in the UVVA that defines a human to include a 
fetus, the Feinstein amendment accomplishes the stated goal of the UVVA 
without undermining reproductive rights or ignoring violence against 
women.
  The senior Senator from Washington will offer an amendment in support 
of domestic violence victims, which I am proud to cosponsor. The Murray 
amendment would authorize HHS grants to nonprofit agencies to help 
service providers design and implement intervention programs for 
children who witness domestic violence. The grants would encourage 
domestic violence agencies and schools to work together to address the 
needs of affected children. The amendment would also establish 
entitlement standards and guidelines for employees to use emergency 
leave to address domestic and sexual violence.
  Unlike UVVA, these two amendments address the issue of violence 
against women. If we are serious about addressing this problem and 
trying to end the violence, then we should put a stop to the partisan 
politics surrounding UVVA and vote for these amendments.
  When it has focused on the real issue of violence against women, 
Congress has taken aggressive action to address the problem of violence 
against women. Congress made great strides in the fight against 
domestic violence by passing the bipartisan Violence Against Women Act 
as a part of the 1994 Violent Crime Control and Law Enforcement Act. 
Senator Biden and Senator Hatch contributed considerable time and 
leadership to achieve the enactment of VAWA, which marked a turning 
point in our Nation's effort to address domestic violence and sexual 
assault.
  This landmark legislation created federal domestic violence offenses 
with severe penalties to hold offenders accountable for their 
destructive and criminal acts of violence. Since the end of 1994, the 
Department of Justice has brought over 1000 VAWA and VAWA-related 
indictments and awarded over one billion dollars in VAWA grants to 
communities working hard to combat violence against women and to help 
cure the pain and suffering that results from it.
  I am proud to say that Vermont was the first State in the country to 
apply for and receive funding under VAWA, and I have seen the way in 
which groups such as the Vermont Network Against Domestic Violence and 
Sexual Assault have worked effectively to stem violence against women 
and children and to assist those who have suffered from it.
  I am also pleased that the conference report on the AMBER Alert and 
PROTECT Acts included Leahy-Kennedy-Biden legislation to establish a 
transitional housing grant program within the Department of Justice to 
provide victims of domestic violence, stalking, or sexual assault the 
necessary means to escape the cycle of violence. It amends the Violence 
Against Women Act of 1994 to authorize $30 million for each of fiscal 
years 2004-2008 for the Attorney General to award grants to 
organizations, States, units of local government, and Indian tribes. 
The grants will help victims of domestic violence, stalking, or sexual 
assault who need transitional housing or related assistance as a result 
of fleeing their abusers, and for whom emergency shelter services or 
other crisis intervention services are unavailable or insufficient. 
President Bush signed the conference report into law on May 7, 2003.
  We know that violence against women pervades all areas of our 
country. It makes no difference if you are from a big city or a rural 
town; domestic violence and other violence against women can be found 
anywhere. This is a serious issue. We owe this country a serious 
response, not a debate on ideological proposals that ignore effective 
programs designed to help women crime victims. I urge my colleagues to 
join me in supporting the Feinstein and Murray amendments, and in 
voting against the Unborn Victims of Violence Act.
  Mr. FEINGOLD. Mr. President, I will oppose H.R. 1997, the Unborn 
Victims of Violence Act, and instead support an alternative offered by 
Senator Feinstein, and I would like to take a moment to explain why.
  I join with Senator DeWine and the supporters of this bill in 
condemning acts of violence against women, including pregnant women. 
The Unborn Victims of Violence Act would make it a Federal crime to 
injure or kill a fetus during the commission of a Federal crime against 
a pregnant woman. This separate offense would be punished as if injury 
or death had occurred to the pregnant woman. I believe that acts of 
violence against pregnant women are deplorable and should be punished 
severely. Congress has taken and should continue to take steps to 
protect women from violence and prosecute those who attack them. But I 
am concerned that by recognizing the fetus as an entity against which a 
separate crime can be committed, the Unborn Victims of Violence Act may 
undermine women's reproductive rights as set forth by the Supreme Court 
in Roe v. Wade.
  That is why I plan to support a sound alternative, the Motherhood 
Protection Act, offered by my colleague Senator Feinstein. the 
Motherhood Protection Act would accomplish the same stated goal as the 
Unborn Victims of Violence Act: establishing an additional, separate 
Federal offense for harm to a pregnant woman. It carries the same 
penalties as H.R. 1997: a maximum 20-year sentence for harm to a 
pregnancy and a maximum life sentence for termination of a pregnancy.
  I believe that the Feinstein substitute is the better approach 
because it accomplishes the same goal that H.R. 1997 seeks to address 
without delving into the controversial issue of defining when human 
life begins. Regardless of our views on that highly charged question, 
we can agree that violence against pregnant women is a heinous crime 
and should be punished to the fullest extent of the law. That is why I 
will oppose H.R. 1997 and instead support the Feinstein substitute.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, how much time does the other side have 
remaining?
  The PRESIDING OFFICER. They have 1 minute 58 seconds.
  Mrs. FEINSTEIN. Mr. President, I agree that the debate is concluding, 
and I thank the Senator from Ohio. This is a serious subject and it is 
a difficult subject and it is a controversial subject. I appreciate the 
manner in which the debate has been conducted, because I think it has 
been conducted in the best tradition of the Senate, with the exception 
of your not letting me modify my amendment. But I will only interpret 
that as caused by the fact that the other side is worried and doesn't 
want my amendment to get any better, so they refuse to let me modify 
it.
  We have two different bills here. I think we have expressed the 
differences. The underlying bill does recognize the unborn at any stage 
of development, as long as they are in the womb, as a human being, as a 
victim and with rights.
  My bill, rather than enter into where life begins, at what point in 
this gestation period life actually begins enough to say this is a 
person with rights--it doesn't get into that. It takes the penalties 
and does a double charge and says if the predicate crime is present, 
and you carry out the crime to harm or end the pregnancy, it is a 
double charge so you are charged accordingly.
  The hard part of this is that we all know there has been a march to 
turn back Roe v. Wade. Every Member of this Senate knows it. We have 
had vote after vote after vote. Since 1994, the pro-choice side has 
lost most of the votes. That is irrevocable fact. We know the march is 
on.

[[Page 5203]]

  So those of us who are pro-choice naturally are going to look at laws 
to see if those laws can constitute, in addition to what they are 
supposed to do, any kind of bulwark from which to attack Roe.
  Because of the definition of a child in utero being, at any stage of 
development, a member of the species Homo sapiens, we come to a 
conclusion. We asked the question, first, why do they use that 
definition? So many States have passed laws and many of them have used 
different definitions, why do they select that definition?
  Answer, because it accomplishes the purpose of determining that once 
a fertilized egg is in the womb, it becomes a human being. That, then, 
buttresses statements such as this one on the easel.
  This isn't the only statement. I can give another statement by 
another professor which I used in my opening remarks. It is a statement 
of a Republican strategist. Professor Charo is at the University of 
Wisconsin. She made the statement recently:

       If you can get enough of these bricks in place, [meaning 
     laws] draw enough examples from different parts of life and 
     law where embryos are treated as babies, then how can the 
     Supreme Court say they are not? This is, without question, a 
     conscious strategy.

  So if you believe it is without question a conscious strategy--and I, 
based on the history of how the erosion against Roe is being waged, 
piece by piece, bit by bit, law by law, action by action, I believe it 
is a conscious strategy. The hard part about it for me is that you feel 
this terrible empathy for women who have been the victims and who are 
7, 8, 9 months pregnant. That has been every case that has been before 
us today, it has reached that stage of gestation, where you know your 
child can exist outside of the womb and some animal has taken the child 
away from you by beating you to the point where they have killed the 
child and in many of the same cases--the Senator from Kansas 
illustrated today--killed the mother as well. We want to throw the book 
at that perpetrator. And we do. We believe our bill is clear, and we 
believe our bill will stand the test of time.
  So we ask the Senate to support the substitute amendment and turn 
down the underlying bill. I reserve the remainder of my time. I yield.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I will again point out for those who are 
worried about some great precedent being set here in regard to abortion 
that over half the States have similar laws and many of them are 
absolutely identical to what we are writing. So people should not be 
concerned about this.
  The PRESIDING OFFICER. Who yields time?
  Mrs. FEINSTEIN. I yield but I am reserving the remainder of my time. 
I may have something to say in a minute or so, and I may not.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I think I have just a short time left. 
How much time do I have?
  The PRESIDING OFFICER. Five minutes.
  Mrs. FEINSTEIN. Mr. President, for those who might have gotten 
involved in this late, I would like to use the 5 minutes to say a few 
things.
  The first is that this is one of the most difficult areas in which to 
legislate because it is filled with so much emotion and so much 
difference of opinion. It is one of those great cultural problems that 
exists out there in our real world, as opposed to this world, where 
human lives are very much affected.
  On the one hand, you have the situation the Senator from Kansas, the 
Senator from Ohio, and the Senator from South Carolina pointed out--
situations where you have women who have terrible things done to them. 
It is just so hard for us to realize how that can happen, that any man 
can be that callous to beat to death a woman who is 7, 8, or 9 months 
pregnant; can use a knife; can cut her fetus when you know that child 
is capable of life.
  I understand what drives this desire. What drives the desire is to 
see that there is equal punishment for the taking of that life, which I 
believe is a life because it can sustain life. Its pulmonary functions 
have cleared out in the last few weeks of pregnancy and those kinds of 
things. But basically it is a baby, and basically it is viable. I 
understand all of that.
  When you get down to definitions, and when you look at the statute 
itself, what concerns many of us and makes us understand we are dealing 
with something much more than just what I have said is the definition 
of a child in utero who is made by this bill a person, a member of the 
species Homo sapiens at any stage of development as long as it is in 
the womb--that could be 3 days, I am now told, from conception--you are 
not only creating criminal law for the woman who can produce a child 
who can live and whose life is taken away but we are creating a 
sanction for an egg that is fertilized that may be 3 days old. That 
sanction can be murder and carry with it the full weight of murdering 
another human being. It is a very heavy sanction. You are giving rights 
to that newly conceived egg of a full person.
  There are many of us who say this is another way of doing this. That 
is just saying if you harm or end a pregnancy, these full charges will 
revert.
  The reason we do it that way is because it exists all around us. The 
fact that there is a reason for how this child in utero is defined and 
the reason is, as I have tried to elucidate--and there are many other 
cases--``In as many areas as we can, we want to put on the books that 
the embryo is a person.''
  Why do they want to do that? It is simple. They want to do it because 
if we legislate, and the Federal crime is that if a 3-day-old egg is a 
person and has rights, then abortion under this same context is murder 
or manslaughter or assault. Full rights of a person are given.
  I think that is a problem when you codify it in statute. This body is 
then saying: Yes, we agree. Therefore, a case can be brought against 
abortion of any kind at any time and also against embryonic stem-cell 
research that some of us believe is the new horizon of medicine, which 
is capable of finding cures for Parkinson's and Alzheimer's, and 
juvenile diabetes.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. FEINSTEIN. Just to sum up, I hope Members of the Senate will 
vote for the substitute amendment and against the underlying bill.
  I thank the Chair. I thank the distinguished Senator from Ohio. It 
has been a very interesting morning.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I thank my colleague from California. This 
has been a very good debate. No one in the Senate Chamber cares more 
about the victims we have been talking about than my colleague. I 
salute her for her compassion. I salute her for all the great work she 
does in this Chamber.
  Three points: This bill has nothing to do with abortion. We shouldn't 
fear it. People who are on either side of abortion should not fear this 
bill. The States have already passed laws similar to this. They have 
not affected abortion. That is point No. 1.
  Point No. 2: The Feinstein amendment denies that there is a second 
victim. If you care that there is a second victim, if you care about 
justice, don't vote for the Feinstein amendment.
  Point No. 3: The Feinstein amendment is drafted, unfortunately, so 
there is no penalty for the killing or the injuring of the child.
  That is a problem. I don't think anyone intends for that to be the 
case in the sense of voting that way. If you vote for the Feinstein 
amendment, you are denying that there is a second victim. You are also 
denying that there will be any penalty for the killing or the injuring 
of that victim. That is what a vote for the Feinstein amendment would 
do. I ask my colleagues to vote no on the Feinstein amendment.

[[Page 5204]]

  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. All time has expired.
  The question is on agreeing to the amendment.
  Mr. DeWINE. 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) is 
absent attending the funeral of his wife's grandmother.
  The PRESIDING OFFICER (Mr. Crapo). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 49, nays 50, as follows:

                      [Rollcall Vote No. 61 Leg.]

                                YEAS--49

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

                                NAYS--50

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

                             NOT VOTING--1

       
     Biden
       
  The amendment (No. 2858) was rejected.
  Mr. FRIST. Mr. President, I move to reconsider the vote.
  Mr. BROWNBACK. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 2859

  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I have an amendment No. 2859 at the desk. 
I ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Washington [Mrs. Murray] proposes an 
     amendment numbered 2859.

  Mrs. MURRAY. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  The PRESIDING OFFICER. There are 2 hours equally divided on the 
amendment. The Senator from Washington is recognized.
  Mrs. MURRAY. Mr. President, today I am offering an amendment to help 
prevent violence against women and children. We have heard a lot of 
talk today about punishing abusers. Now it is time to see who is 
serious about preventing abuse in the first place.
  As someone who has spent my entire public life talking with victims, 
visiting shelters, working with advocates in law enforcement, and 
funding the programs victims rely on, I am here this afternoon to offer 
an amendment that will help women and children get the help they need 
to be safe and, most importantly, to save their lives.
  Mr. President, the amendment I am offering this afternoon is built on 
what victims and experts have told me they need. That is why this 
amendment has been endorsed by the National Coalition Against Domestic 
Violence and the Family Violence Prevention Fund. These organizations 
know what victims need, and they say the Murray amendment will really 
help victims of violence.
  Mr. President, I am honored to say that my amendment is named for 
Paul and Sheila Wellstone, who were such champions for victims of 
domestic violence. Senator Wellstone and I introduced legislation which 
is today included in this amendment. Paul's desk was just behind me 
here on the Senate floor. I can still see him behind me waving his arms 
and making the case for people who have no voice.
  This amendment is a real tribute to Paul and Sheila and the fight we 
carry on for the millions of people who need a voice in the U.S. 
Senate. Whenever Paul debated an issue, you could always tell who was 
really standing up for families and who was just talking. The vote on 
my amendment will reveal who is truly concerned about giving women and 
children the tools they need to escape violent relationships, and who 
is more interested in playing politics and attempting to undermine 
women's constitutional rights. Any Senator who is truly concerned about 
the safety of women and children will join me and give battered women 
the support they need to escape violent relationships before it is too 
late.
  Now, I have a feeling that during this debate we are going to hear a 
lot of excuses. Some Senators are going to stand up here and claim that 
preventing violence against women is somehow not relevant. Senators 
will stand up here with the talking points that have been prepared for 
them by the Chamber of Commerce and say that protecting women from 
deadly abuse is somehow bad for business.
  We are going to hear a lot of excuses. But I have something stronger. 
I have the actual stories of dozens of women who are being abused, who 
have escaped abuse, or who have been killed by their abusers. Those are 
the voices that need to be heard on the Senate floor, not talking 
points from lobbyists, not the same old excuses from the very people 
who are cutting Violence Against Women Act programs by $10 million. We 
have had enough of that. We know where it has gotten us: 2 million 
women assaulted every year.
  Nearly 1 in 3 adult women are assaulted. There are 4.9 million 
intimate partner rapes and physical assaults, and thousands of women 
every year are killed by a spouse or a boyfriend. We know what all 
those excuses have produced: Women who are beaten, raped, and murdered.
  Some lobbyists and Members of Congress want to bury my amendment. You 
know what. We have had to bury enough people already. Let's see who is 
serious about helping to prevent violence and who is just playing 
politics with the lives of battered women.
  Let me read a note I received from an advocate for victims of abuse. 
She writes:

       I have had many many clients over the years who have come 
     to me after they have been fired from work because they 
     missed a day of work to go to court to get a civil protection 
     order. In some of these instances, the women had sick days, 
     but they were still fired. Several of these women were forced 
     to return to their batterers after they lost their jobs 
     because they lost their income and they and their children 
     would have been homeless if they did not return.

  These are some of the women who are trapped today and who desperately 
need our help. Mr. President, my amendment is especially important 
because the Bush administration is cutting or freezing funding for 
critical domestic violence programs. Every year, 2 million American 
women are sexually assaulted, stalked, or physically assaulted--2 
million women every year. You would think that the White House would 
recognize the need to fund domestic violence programs, but the 
President's latest budget offers more bad news to victims of violence.
  Let me give you some examples. The President's budget cuts Violence 
Against Women Act programs by $10 million. It cuts a Justice Department 
rape prevention program by $29 million. It freezes funding for the 
domestic violence hotline, and it freezes funding for grants for 
battered women shelters, precisely at a time when we need increases 
because evidence shows us that domestic violence increases during tough 
economic times just as we are having today.
  So I find it pretty ironic to be here today with a bill before the 
Senate that purports to help victims of domestic violence while it 
ignores all we know about preventing it. Anyone who

[[Page 5205]]

has talked with victims' advocates and law enforcement knows that 
domestic violence prevention requires more support, not less--not less. 
It is clear that we need to help victims escape violent relationships, 
and the Paul and Sheila Wellstone domestic violence prevention 
amendment will help.
  Mr. President, my amendment does several things. It gives victims of 
abuse access to unemployment insurance if they have been forced to 
leave their job because of violence. It gives victims of violence 
access to expanded emergency leave so they can go to court or to the 
police to stop the abuse. It protects victims from employment and 
insurance discrimination. It provides services for children who witness 
domestic violence so we can end that cycle of abuse. It helps health 
professionals screen for abuse and respond appropriately. It gives 
victims better access to critical health services. Those are the steps 
we need to take today to protect the more than 2 million women who are 
sexually assaulted, stalked, or physically assaulted every single year.
  Mr. President, let me say a word about the relevance of my amendment. 
I expect some Senators will come here and claim that preventing 
violence against women is somehow not relevant to the bill we are 
debating today. To them, it never seems to be the right time. There is 
always an excuse. In fact, these Senators are sending a message that 
victims are not relevant until they are dead. If any Senator wants to 
come down here and tell women across America that the abuse they face 
is not relevant, then they will have to make that insulting claim alone 
because I am going to keep fighting to get victims the help they need, 
to prosecute abusers and break the cycle of violence. You tell a woman 
who is being abused she doesn't deserve more help; you tell a child who 
is witnessing abuse every night that my amendment is unnecessary. I am 
not going to tell victims that. My amendment gives them the real help 
they need.
  Mr. President, victims of violence have heard a lot of excuses over 
the years. Claiming that their daily abuse is not relevant to this 
Senate debate is just another of the excuses that have trapped women 
every year in this country. That claim is as insulting as it is false.
  Just look at the recent debate in the House of Representatives on 
this underlying bill. During that debate, every single anti-choice 
Member who spoke referred to criminal acts of violence against women. 
Violence against women is a central part of this debate. Preventing 
violence against women and helping women and children who are being 
abused is central to this discussion.
  Opponents cannot have it both ways. They cannot claim that their bill 
is needed to address the violence against women and then claim we 
should not debate ways to prevent violence against women. This 
amendment is clearly relevant and will truly help women and children.
  Anyone who wants to claim it is not relevant will have to answer to 
the victims to whom they are denying help. Either you are serious about 
helping women and victims or you are playing politics and making 
excuses.
  Women and children who are being violently abused every day deserve 
to know where their Senators stand, and Members of Congress are 
certainly hearing from outside groups on this, from groups that are not 
known--not known--for their advocacy on fighting domestic violence.
  Yesterday, Senators received a letter from the U.S. Chamber of 
Commerce urging them to oppose my amendment. Bruce Josten, the 
Chamber's Executive Vice President for Government Affairs, makes the 
Chamber's case rather forcefully in his letter. He writes:

       It is important to note as a preliminary matter that H.R. 
     1997 is clearly an inappropriate vehicle for this amendment 
     as the issues involved are completely unrelated.

  ``Unrelated.'' We are dealing with a bill that claims to address the 
crime of violence against women, but an amendment that would actually 
prevent violence is ``unrelated,'' according to the Chamber of 
Commerce.
  Mr. Josten goes on to write:

       The ill-designed programs promise to impose significant 
     costs on business, particularly small business.

  So the Chamber argues that the cost of preventing further violence 
against women is too high to pay. In other words, preventing domestic 
violence and giving women the tools to escape from abusive 
relationships is bad for the bottom line.
  Let's, for a minute, examine the economics of domestic violence. 
There are costs associated with allowing domestic violence to continue, 
not just for women but for businesses.
  In 2002, economists Amy Farmer of the University of Arkansas and Jill 
Tiefenthaler of Colgate University published a report on the economic 
impact of domestic violence. They examined publicly available studies 
performed in the United States, including the annual National Crime 
Victimization Surveys, two Physical Violence in American Families 
studies, and seven studies in the national violence against women 
survey.
  As Ms. Farmer explained:

       Each study was intended to answer different questions, so 
     the data sets have different strengths and weaknesses. When 
     we incorporated these data into a single model of domestic 
     violence, a different picture emerged that can be seen from 
     any one study.

  They found that absenteeism, tardiness, and turnover rates are all 
high among domestic abuse victims. Farmer's research also concludes 
that domestic abuse may result in almost 7 million lost work days 
annually--7 million--reduced workplace productivity, increased 
insurance costs, and lower profits.
  The researchers also cited a 1995 Roper report that found that 49 
percent of the Fortune 100 executives surveyed believed that domestic 
violence hurt their company's productivity, and 33 percent said it 
lowered their profits. So this is a problem that is real, and it has 
real costs for businesses.
  If you go to the Corporate Alliance to End Partner Violence, you can 
learn some other interesting facts about domestic violence and how it 
affects the bottom line. On their site, you will find medical expenses 
from domestic violence costs $3 billion to $5 billion a year. 
Businesses are paying $3 billion to $5 billion a year in health care 
for victims of domestic violence.
  You also learn that 94 percent of corporate security directors rank 
partner violence as a high security problem. They estimate that 75 
percent of victims of domestic violence are harassed at work by their 
abuser.
  Here is a startling fact they have on their Web site: Homicide is the 
No. 1 leading cause of death on the job, and 20 percent of those 
murders were committed by their intimate partner at the workplace.
  What should we conclude from this data? Domestic violence is bad for 
business. It has real and it has painful costs on employers. So for 
those Members who want to weigh this measure against its economic 
merits, as the Chamber does, the facts are clear. Providing the tools 
that will allow abused women to escape abusive relationships can help 
offset billions of dollars in costs that domestic violence imposes on 
businesses.
  But I hope my colleagues will consider more than the economics as 
they cast their vote. I hope my colleagues will consider the cost to 
the women and children who are the victims of domestic violence--the 
cost in pain, the cost in lives--and the pain and the lives we can 
protect by giving women the tools they need to escape abusive 
relationships.
  I would like to share with my colleagues this afternoon some of the 
stories of the women we are trying to help with this amendment. These 
stories were shared with me by a nationally recognized advocate for 
domestic violence victims.
  Let me tell my colleagues a story about a woman who had worked at a 
medium-sized organization for over a year as an administrative 
assistant. Her husband had been beating her on and off for over 15 
years of their relationship. When things escalated, she missed work due 
to a severe beating. She called in to work and was honest

[[Page 5206]]

about what happened to her. She came in to work the next day and was 
told she was fired. Her company told her they were afraid that her 
husband would come to the workplace and hurt her coworkers, although 
that had never happened before.
  She did not qualify for job guaranteed leave under the Family and 
Medical Leave Act because the company employed less than 50 employees 
and, arguably, her injuries from the beating did not qualify as a 
serious health condition. So it made her firing legal.
  If VESSA--the act we are talking about--had been in effect, she would 
have had access to job guaranteed leave or perhaps a provision 
prohibiting employers from discriminating against victims of domestic 
violence. She applied for and was denied unemployment insurance.
  This is a real woman. This is what happened to her. It could be your 
next-door neighbor. It could be your daughter.
  There is another woman who worked as a hospital nurse. She just left 
her batterer and was concerned that he might follow her to her 
workplace. She told her employer of her fears, and they fired her. She 
applied for unemployment insurance. She was denied.
  Another story: Abusers often contact employers themselves to get the 
women they are abusing fired. One batterer called up the workplace and 
told them his victim was HIV positive. He then told the employer that 
the woman was a liar and was missing work so she could file a frivolous 
restraining order against him. The woman took an earned sick day off 
from work, but when she returned to work, she was told she was fired 
because she was a victim of domestic violence. If VESSA had been in 
place, that would have been illegal.
  Another story: A woman was assaulted by her batterer in the parking 
lot at her workplace. She was then fired for ``being in a fight.''
  Let me tell you about a woman who was strangled by her batterer. Her 
doctor told her to stay home from work for 5 days after being 
strangled. She called in sick to work, and she was fired because she 
did not have enough vacation days and she did not qualify for family 
and medical leave because her employer was too small.
  These are real people, Mr. President. These are our next-door 
neighbors. These are women who live in our communities. These are real 
stories.
  Another example: One morning a woman was getting ready to go to work 
and her abuser came to her home with a gun. He told her that if she 
left the house, he would kill her. She was able to call the police, and 
the police came to her home and arrested the batterer. She got a police 
report. She called her workplace and explained why she was unable to 
come to work that day. The next day she returned to work and was fired 
for missing work and was denied unemployment insurance.
  Let me tell you another story: One woman got a call at work from her 
abuser. Her coworker overheard the conversation, and then her employer 
took her aside and said since she was dealing with so much, she 
couldn't possibly continue to work for him and fired her.
  Here is an example of what happens when a woman tried to go to court 
to get help. A woman told her employer that she was in a violent 
relationship and that she would need to take a day off from work to go 
to court to get a protection order.
  The employer seemed supportive and agreed, so she took the day off 
and went to the court. The next day when she arrived at work, her 
supervisor called her into his office and she was fired for missing 
work, even though she had obtained permission the day before.
  These are just some of the people who desperately need our help. 
These are real stories. These are real women. They need this amendment 
to break out of these abusive relationships.
  Let me take a minute to put this amendment in context because it is 
the next logical step in the progress that we have been making in 
fighting domestic violence. We have come a long way over the past few 
years in dealing with domestic violence. Not long ago domestic violence 
was considered a family problem. It was something people did not talk 
about. That climate made it very difficult for victims to seek help. It 
prevented friends or neighbors from getting involved in what was 
considered someone else's business.
  Today stopping domestic violence is everyone's business, thanks to 
the Violence Against Women Act, which I was proud to work on and help 
pass. For the first time, the Violence Against Women Act recognized 
domestic violence as a violent crime and a national public health 
crisis. It laid out a coordinated strategy to bring advocates, 
shelters, prosecutors, and law enforcement professionals together to 
fight domestic violence. I was proud to help reauthorize the Violence 
Against Women Act in 2000.
  Over the years, I have been proud to work with advocates from 
Washington State and across the country to strengthen these violence 
against women programs, to increase the funding, and to help raise 
awareness. So the Violence Against Women Act was the first step and it 
helped us respond to the immediate threat of abuse. Now it is time for 
us to address the long-term problems that victims face. We need to 
break down the economic barriers that trap these women in abusive 
relationships, and we need to reach out to the children who witness 
this violence, help health care professionals stop the cycle of 
violence and truly protect women and children.
  Let me take a few moments to walk through the parts of my amendment 
and show how it will help prevent and stop abuse. My amendment gives 
victims of violence access to unemployment compensation. Specifically, 
it provides victims of domestic violence, dating violence, sexual 
assault, or stalking with unemployment insurance if they have been 
separated from their employment as a result of the violence.
  Many abusers trap their victims financially, limiting their ability 
to work and forcing them out of a job. I will share some statistics 
that have been compiled by the National Coalition Against Domestic 
Violence. Many victims of domestic violence have current or former 
partners who interfere with their efforts to work by harassing them on 
the job, threatening them and their children, withholding 
transportation, or beating them so severely they cannot work. In 
addition, more than 25 percent of domestic violence victims surveyed in 
three national studies reported they lost a job due at least in part to 
domestic violence.
  We know that a job is often the only way for a victim to build up 
resources for themselves to eventually leave a violent relationship, 
but abuse and stalking can make it impossible for a victim to keep a 
job. We know of cases where abusers will deliberately sabotage a 
victim's ability to work, placing harassing phone calls, cutting off 
their transportation, showing up at the workplace and threatening 
employees. When a victim loses her job because of violence, she should 
have access to unemployment insurance compensation benefits.
  During this debate some may claim this is some big, onerous 
expansion. I have seen the talking points from the groups that want to 
kill this genuine effort to protect women from violence, and they have 
it wrong. This is not some dramatic expansion. In fact, today 25 States 
already provide some type of unemployment insurance assistance for 
victims of domestic violence. We can offer that same protection to 
victims in every State, and we have an obligation to do it.
  My amendment will also protect victims by allowing them unpaid time 
to get the help they need. Today a woman can use family and medical 
leave to care for a sick or injured spouse, but many women cannot use 
that act to go to court to stop the abuse. My amendment fixes that. We 
know that taking a day off of work to go to court or to go to the 
police can save a woman's life. My amendment ensures women will not be 
punished for taking those steps that they need to take to protect 
themselves from abuse.
  Let me turn to another part of my amendment which deals with the 
children who witness domestic violence.

[[Page 5207]]

Batterers often harm children as well as their intimate partners, and 
witnessing violence can have a serious impact on young children and all 
children. Let me offer some statistics about abuse and children to put 
this in perspective.
  Between 3.3 million and 10 million American children annually witness 
assaults by one parent against another. In 43 percent of households 
where intimate violence occurs, at least one child under the age of 12 
lives in that home. Children are caught in the crossfire of abuse, and 
while we know all children are affected differently, we do know that 
children who witness violence at home may display emotional and 
behavioral differences as diverse as withdrawal, low self-esteem, 
nightmares, or aggression against their peers, family members or 
property.
  We know that witnessing abuse by a child can contribute to the cycle 
of violence. The Office of Juvenile Justice and Delinquency Prevention 
at the U.S. Department of Justice finds that as many as 40 percent of 
violent juvenile offenders come from homes where there is domestic 
violence. In my home State of Washington, we are now all too aware of 
the price children pay in cases of domestic violence.
  In April of 2003, the Tacoma police chief, David Brame, shot and 
killed his wife Crystal. Then he took his own life, all while their two 
young children watched. The final tragic act was the last in a long 
history of abusive events that often played out in front of their two 
small children.
  According to the police report, David Brame had been driving around 
in a shopping center parking lot in Gig Harbor that day when he spotted 
his wife Crystal and the couple's children as she was parking the car. 
Brame shot her and then turned the gun on himself.
  According to a witness, 7-year-old Haley told her:

       My daddy is a policeman and he is very mean to my mommy. I 
     think my daddy has killed her.

  Then Haley told officers she had seen her dad point a gun at her 
mom's head in the past.
  Detectives talked to the son, David, 5 years old, at the hospital a 
few hours later as the mother was fighting for her life. They asked the 
little boy, 5 years old, ``Did you see the gun?''
  He answered:

       Yeah. And, it shooted my mom into flat dead.

  The children talked about past anger between their mother and their 
father and what led to that terrible day. That is just one terrible 
example of the trauma that children who live with domestic violence 
have to live with. It should be our collective goal to help them 
overcome it.
  This is how this amendment would help children who witness domestic 
violence. It establishes grants to children who have been exposed to 
domestic violence such as I just described. It supports direct 
counseling and advocacy, early childhood and mental health services, 
legal advocacy and specialized services. It provides training for 
school personnel to develop effective prevention and intervention 
strategies. It helps child welfare agencies, domestic violence, and 
sexual assault service providers work together to protect the children.
  Finally, it supports multisystem intervention models and crisis 
nurseries for children who are exposed to violence in their home.
  Children who witness domestic violence have special needs. They are 
not being addressed today. We have an obligation to change that.
  Let me turn to the next part of my amendment, which increases health 
screening so more victims can get assistance. More than one in three 
women who seek care in emergency rooms for violence-related injuries 
were injured by their intimate partner. Unfortunately, most victims who 
seek health care leave the doctor's office without addressing the 
underlying cause of their injuries. They leave that untreated, and that 
is the violence they suffered. The cost of intimate partner violence 
exceeds $5.8 billion every year; $4.1 billion of that is for direct 
medical and mental health care services.
  Health care providers can do a great deal to stem the tide of 
domestic violence before it becomes life threatening. A 1999 study 
published in the Journal of the American Medical Association found only 
10 percent of primary care physicians routinely screen for intimate 
partner abuse during new patient visits, and 9 percent routinely screen 
during periodic checkups.
  Emerging research shows us hospital-based domestic violence 
interventions could reduce health care costs by 20 percent. My 
amendment will help ensure health care providers are trained in how to 
identify and serve victims of domestic violence, and provide grants to 
strengthen health care systems' responses to domestic violence.
  My amendment will promote public health programs that integrate 
family violence assessment and intervention into basic care. It 
encourages collaboration between health care providers, public health 
programs, and domestic violence programs.
  My amendment will lead to more effective interventions, more 
coordinated systems of care, greater resources to educate health care 
providers about domestic violence, and ultimately what we all want, 
more women receiving help.
  In December of 1999, the New England Journal of Medicine published a 
major study on the risk factors for injury to women from domestic 
violence. Here is what one of the researchers, Dr. Robert Muelleman, 
had to say.

       A lot of women who have died from domestic violence had 
     been seen in their local emergency rooms at least 2 years 
     before their deaths. In America, 2 to 4 million women are 
     injured each year, and 1 to 2 million of those show up in 
     emergency rooms. Of these, 2,000 to 3,000 a year end up as 
     homicides.
       It's clear that medical professionals in the emergency room 
     can be a great help in identifying at-risk women and 
     directing many of them to supportive resources before it's 
     too late.

  That is from Dr. Robert Muelleman of the University of Nebraska 
Medical Center.
  Let me turn to another part of my amendment, which expands the 
services available to victims of abuse. My amendment gives the States 
the option to use Medicaid to help victims, it ensures domestic 
violence screening and treatment is covered by the Federal Employees 
Health Benefit Program, and finally my amendment ensures States use 
some of the maternal and child health block grant on domestic violence 
screening and treatment.
  Those are the main provisions of my amendment. Extending unemployment 
insurance benefits for victims of abuse, offering family and medical 
leave so a victim can go to court or the police station to get help, 
ending insurance and employment discrimination, providing help for 
those children who witness abuse, offering access to health care for 
victims, and improving the way our health care providers screen for 
domestic violence.
  My amendment combines the protections and services victims, law 
enforcement, and advocates tell us are needed, based on their real 
world experiences every day on the front lines of domestic violence. We 
have an opportunity today finally to make a real difference for 
millions of women who are being assaulted. We can save lives and we can 
eliminate all the costs domestic violence imposes on our businesses, on 
our families, and on our communities. The question is whether we are 
serious about helping to prevent violence against women.
  The underlying bill before the Senate today focuses only on penalties 
after a woman has been abused. My amendment aims to prevent that abuse 
in the first place. After a woman has been killed, it is too late. We 
have to stop this abuse before it ends up killing some woman. My 
amendment gives women today the tools to escape deadly abuse.
  Are the Senators in the Chamber serious about helping victims of 
abuse? That is the question before us.
  Frankly, I don't care what the lobbyists say out there. The Chamber 
of Commerce has lobbyists lined up and down the hall, and they have 
plenty of people making their case. But I tell you, the women whose 
stories I shared with you today don't have lobbyists lined up in the 
hall.

[[Page 5208]]

  I have been to the shelters. I talked to the women who have been 
beaten. I have looked in their eyes and I know the odds they are up 
against. I know what I would say next time I am looking into the eyes 
of the victim of abuse.
  My colleagues will have to decide for themselves if they are going to 
give her excuses or throw a lifeline to help her escape the violence 
that may kill her. I say to my colleagues, what are you going to say to 
the victims of abuse? Your vote will speak volumes.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I want to take a moment to address my 
concerns about the amendment my friend and colleague from Washington, 
Senator Murray, has offered to the underlying bill.
  First, let me commend my colleague for her passion, for her 
dedication to promoting public awareness about domestic violence, and 
for her dedication to this cause. She certainly is a tireless advocate 
in these efforts to help end domestic abuse. She is steadfast and 
unwavering in her commitment to these issues, and I applaud her for 
offering this amendment today.
  But, reluctantly, I come to the floor this afternoon to oppose this 
amendment. I say this not because I am opposed to all the provisions of 
her amendment, but because the reality is this is not the time or the 
place for this amendment. Her amendment being offered to this bill, as 
a practical matter, does not have any chance of becoming law. We 
understand how not only this body but the other body operates. The 
truth is, what the agreement to this amendment would do is stop the 
underlying bill. When we look at the calendar, when we look at the 
reality of the other body, when we look at what is going on in this 
body, the agreement to this amendment to this bill will stop this bill. 
It will kill this bill.
  So when Members come to the floor, I implore them to think about 
this, however tempting it might be to agree to this amendment. It is a 
very big amendment. It is a very complex amendment. Some of my other 
colleagues in just a moment will talk about the merits of this 
amendment. I am not going to get into that.
  I have a long history in the House, when I was in the House and later 
when I was Lieutenant Governor of Ohio, and now in the Senate, of 
supporting the cause of dealing with the problem of domestic violence. 
So many other Members of the Senate have done that as well. I don't say 
I am the only one. Other Members have had a great record. My colleague 
has a great record.
  But the reality is this amendment, however well intended, cannot 
become law this way. It will not become law this way, and it will have 
the effect of killing this underlying bill. So, therefore, I must 
oppose this amendment. This amendment would kill this bill.
  We are so close to seeing the underlying bill, a bill we have worked 
so hard to pass, actually go to the President.
  The House has passed it. We are very close to passing it here in the 
Senate and sending it on to the President for his signature. The only 
thing, frankly, that now stands between this bill becoming law and 
going to the President for his signature is the Murray amendment.
  At this point, I will yield time to my colleague from the State of 
Utah for his comments about this amendment.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I couldn't agree more with the comments the 
distinguished Senator from Ohio just made. This is a very important 
piece of legislation. It should not be killed on by this last-minute, 
158-page amendment, which has not had a single hearing.
  I have long been a supporter of ensuring that our Nation's laws 
extend all the protections available to women who are victimized by 
domestic and other violence.
  Along with Senator Biden, I have taken the lead in addressing this 
issue through national legislation with the passage of Violence Against 
Women Act.
  I commend Senator Biden for the work he has done on that. But it took 
a bipartisan effort to get that through. Of course, I worked very hard 
side by side with him to get that bill passed, and have stood up for it 
ever since.
  Because of the passage of the Violence Against Women Act, the 
Department of Justice is now authorized to coordinate with Federal and 
State governments, as well as international governments, on matters 
concerning violence against women.
  In fact, the Bush administration will allocate almost $400 million 
this year alone for these worthy programs.
  I note with a sense of pride that a former adviser to my Woman's 
Advisory Council from Utah is now the director of the Office on 
Violence Against Women in the Department of Justice. She is doing a 
terrific job.
  Violent crimes against women continue to be among the most under-
reported. Even so, the statistics that are reported do not convey the 
feeling of fear and vulnerability millions of women across this country 
must face in our streets and all too often in their own homes.
  To address this problem, effective intervention in the area of 
domestic violence requires coordinated efforts by police, prosecutors, 
counselors, and courts. It demands a major commitment by Government at 
all levels, Federal, State, and local. I am proud to help in 
coordinating the response to this important issue and have been very 
proud to have done so in the past. I intend to continue addressing 
these concerns in the future.
  I say all of this to set the backdrop for why I urge my colleagues to 
vote against the Murray amendment.
  Let me say at the outset I appreciate my colleague, Senator Murray, 
for attempting to advance the discussion on this issue. As someone who 
has been working on this matter my whole political career--and even 
before I officially began my political career--I know how difficult it 
is to craft effective legislation which truly makes a difference in 
this area of the law. It takes countless hours of hearings, meetings 
with interested and affected constituents, as well as committee markups 
to ensure what is ultimately passed is well formulated and well vetted 
so you accomplish the goals you set for yourself without causing 
unintended consequences.
  This is a complex area of law. I am sorry to say, however, this 
amendment has not been adequately scrutinized. In fact, I am told no 
committee has examined this proposal, leaving it with far too many 
troubling provisions.
  This is not a simple amendment. It is 158 pages long. Let me take a 
moment to point out just a few of the more troubling provisions 
contained within the Murray amendment. I am only talking about a few of 
them. There are plenty more.
  In this Congress we have taken on a number of civil justice reforms. 
From class action to medical malpractice reform to asbestos reform, 
which I am hopeful we will consider in the next week or so, we have 
substantively addressed many of the more troubling aspects of civil 
lawsuit abuse. This amendment, however, takes us exactly in the wrong 
direction after all of that work.
  For instance, section 112 allows plaintiffs to recover liquidated 
damages in addition to other damages under this amendment. This is a 
technical area of the law. But it is a very important area. What this 
amendment does makes absolutely no sense. It doesn't have a chance in 
the world of going through the whole Congress, but will in essence 
destroy this very worthy and important bill.
  Liquidated damage provisions are appropriate when the actual damages 
are too difficult to ascertain. Accordingly, in lieu of actual damages, 
parties agree upon a reasonable estimate of liquidated damages. Thus, 
liquidated damages are used as a substitute for actual damages and not 
as a supplement to them. Courts simply do not enforce liquidated 
damages that are merely intended to serve as a penalty.
  In this litigation-prone country we have right now, this would go 
completely awry, and it would undermine,

[[Page 5209]]

it seems to me, what we are trying to do to prevent violence against 
women in the end.
  What it seems the Murray amendment is trying to do is codify a set 
formula for determining punitive damages by automatically doubling the 
amount for compensatory damages with the possibility of a reduction if 
good faith is shown. But if that is the intent, the bill is not drafted 
properly to carry out that intent.
  This glaring error is just one example of what occurs when a bill 
does not undergo the scrutiny required to pass sound legislation.
  It took us years to pass the Violence Against Women Act--not because 
we were stupid and not because we didn't want to do it faster, but 
because we had to listen to experts and make the appropriate changes 
that have made it the great law it is today.
  What will happen if this amendment is adopted? First of all, this 
amendment isn't going to go anywhere, anyway. But if it is adopted, it 
will destroy this bill. Basically it will undermine what all of us--a 
vast majority in this body--are trying to do.
  The one reason we created the committee system, of course, is to 
correct and vet legislation rather than wasting valuable floor debate 
time.
  An additional provision found in the Murray amendment pertaining to 
class action--section 112(g)--appears to fly in the face of the efforts 
of a vast majority of Senators. It makes no effort to take into 
consideration issues that trouble the majority of Senators. This 
amendment codifies in the United States Code a right to bring class 
actions.
  I have helped lead the fight in this Congress to reform the 
substantial abuses that have occurred by some unscrupulous trial 
lawyers, personal injury lawyers primarily, who have brought 
unjustified class actions in an attempt to extort settlements from 
companies across this country. That is right. Extort settlements. In 
fact, well over 50 of my colleagues--truth be known, over 60 of my 
colleagues have joined with me to take a stand against these abuses. In 
light of this clear expression of sentiment, it makes no sense to 
codify in the United States Code this class action authorization. It 
flies in the face of everything we are doing around here.
  Obviously, there has been no serious effort to address the legitimate 
concerns of the bipartisan majority of the Senators working on the 
class action issue, and we have worked on it for years. We are still 
working on it. We have come a long way. We now have a supermajority of 
Senators who will support class action reform as it should be 
supported. But it took years for us to get there. Unlike some 158-page 
amendment that has not been well thought through but brought up on the 
floor suddenly. However well intentioned the efforts are, in the end, 
the result will be to destroy the underlying bill that the vast 
majority of us would like to pass.
  I am sure Senators Grassley, Kohl, Carper, and I will work with the 
distinguished Senator from Washington in good faith, if she will work 
with us in good faith with regard to her concerns as exemplified in 
this 158-page amendment.
  Finally, let me point out another provision of the Murray amendment 
that opens the door to further lawsuit abuse.
  In a country that has long been known for its litigation abuse, and 
we all know this is true, these ill-thought-out litigation matters are 
running us into bankruptcy--ruining businesses throughout the country, 
not getting money to those who deserve them, and driving a set of 
unscrupulous trial lawyers who basically know better but who are more 
interested in making money than they are in doing what is right.
  Section 134 of this 158-page amendment itemizes what can be recovered 
in a lawsuit brought under this amendment.
  In addition to the ordinary recoveries already permitted in the civil 
justice system, this amendment proposed by the distinguished Senator 
from Washington would permit a money recovery when the plaintiff 
suffers ``inconvenience,'' ``loss of enjoyment,'' and other non-
pecuniary losses. Recovery for inconvenience? Recovery for loss of 
enjoyment? My gosh, what does that mean in the law? Anyone who takes 
the metro during rush hour suffers from inconvenience. And, I might 
add, loss of enjoyment. This type of language is absurd. It should not 
even be considered by this right-thinking body.
  I am just mentioning a few of the problems. I don't want to take much 
longer because there is only an hour on each side in this debate. These 
are just a few of the problems caused by this amendment as it relates 
to civil justice judiciary issues, important issues that should not be 
dealt with frivolously.
  I have not touched on other problems caused by the amendment such as 
the increase in taxes on small business that will inevitably follow if 
it is passed, the wholesale restructuring of state unemployment 
insurance rules and regulations, as well as the substantial 11th 
amendment concerns raised by this poorly drafted but well-intentioned 
amendment.
  I understand others will come to the floor to discuss these issues so 
I don't intend to repeat them now. They are important issues. This is 
not an itty-bitty amendment. This is a major amendment that literally 
has not had a day of hearings.
  I take a backseat to no one, not anyone, in ensuring that Congress 
does everything it can to provide protections, support, and resources 
to combat domestic violence. But this amendment is not well written. Or 
perhaps I should say, not only is it not well written, it is 
overwritten in many respects.
  Because of the problems replete in the Murray amendment, I cannot 
vote in favor of it. I recommend Senators on both sides of the aisle 
vote against this amendment. We will certainly sit down with the 
distinguished Senator and look at her goals and her aims, try to help 
her fashion this amendment so that it can pass the Senate in a form 
that literally makes sense in the law, makes sense in reality, and 
makes sense in practicality.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Chambliss). Who yields time?
  Mr. HATCH. I yield such time as he needs to the distinguished Senator 
from Wyoming.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. I rise in opposition to the amendment offered by the 
Senator from Washington. This amendment is a sweeping expansion of 
Federal employment law without a hearing, without committee debate, 
without committee amendments, and without any potential for floor 
amendments. We never legislate like that. This bill does not just have 
one concept in it; it has many concepts in it. It is 158 pages. That 
makes it evermore unworkable to do in the Senate. This just is not how 
we legislate.
  As chairman of the Subcommittee on Employment, Safety, and Training, 
I am compelled to discuss the implications of such an unprecedented and 
misguided expansion of current law.
  Let me begin by saying I share Senator Murray's concern about 
domestic violence. Domestic violence shatters families and with it the 
very foundation of our society. My opposition to the amendment is not 
based on a lack of concern for victims of domestic violence. A good 
title does not make a good amendment. I am opposing this amendment 
because it is an unprecedented expansion of workplace laws without any 
consideration for the committee of jurisdiction.
  This amendment greatly expands workplace laws without any hearings or 
Committee consideration. The amendment creates a new set of laws 
requiring businesses--including small businesses--to provide employees 
with additional leave and special accommodation. However, the amendment 
has not been reviewed by the Committee of jurisdiction. It creates new 
workplace requirements without considering the impact of its 
implementation or its relation with existing laws. The process is 
flawed and irresponsible.
  The amendment creates broad, vague workplace requirements that 
conflict with existing law and invite litigation.

[[Page 5210]]

It creates new rights to leave and prohibitions against employment 
discrimination against domestic violence victims that are inconsistent 
with current employment laws, including the Family and Medical Leave 
Act (the FMLA), the Americans with Disabilities Act, Title VII of the 
Civil Rights Act of 1964, and the Civil Rights Act of 1991. The 
nondiscrimination provisions extend to ``perceived'' victims of 
domestic violence who have never been subjected to domestic violence. 
The Murray amendment defines a victim of domestic or sexual violence to 
include family members of domestic or sexual violence victims. Under 
this definition, abusers such as parents who molested their own 
children would be protected under the Murray Amendment.
  This amendment creates unprecedented Federal workplace regulation on 
small business. Congress has recognized the burden of workplace 
regulation on small businesses with limited resources. The FMLA exempts 
businesses with fewer than 50 employees from coverage. The Murray 
amendment would cover all employers with 15 or more employees.
  The lack of administrative alternatives increases litigation and 
burdens courts. Unlike existing federal anti-discrimination laws, the 
Murray amendment allows claimants to bypass the Equal Employment 
Opportunity Commission, EEOC, and file a private suit directly in 
court. This undermines the efficacy of the EEOC and this amendment.
  These are unlimited damages for employment discrimination caused by 
someone else. Unlike existing Federal laws which cap damages for 
employment discrimination, the Murray Amendment allows unlimited 
compensatory damages, and punitive damages of up to 300 percent of 
actual damages. Why should a victim of domestic violence discrimination 
be able to recover greater damages than a victim of race or disability 
discrimination?
  The amendment imposes an unfunded Federal mandate on State 
unemployment compensation. The Murray Amendment imposes a Federal 
Mandate to cover domestic violence under state unemployment 
compensation programs. This requires states to pay the tab, but gives 
them no voice in whether or now to do so. Employers in States that fail 
to comply must pay huge penalties in the form of higher Federal 
Unemployment tax. Unemployment compensation is--and should remain--a 
state issue.
  With vague, broad language that conflicts with current employment 
law, lawyers--not domestic violence victims--will be the biggest 
winners under the Murray amendment.
  The Senator from Washington is the ranking Member of the Subcommittee 
on Employment, Safety, and Training. Many of the provisions in this 
amendment fall within that subcommittee's jurisdiction. The rest of 
them fall under the jurisdiction of the Senator from Utah, who chairs 
the Judiciary Committee, who just spoke from that perspective.
  The first time we are considering this major expansion of Federal 
employment law is on the Senate floor on a bill totally unrelated to 
employment and, I have to add, unamendable. There is an agreement 
between the two sides there would be two amendments today, and those 
amendments would not be amendable, nor would there be allowed any 
intervening action. What we have is what we get. I have to say, no one 
is going to want to get that.
  The overly broad and vague provisions of this amendment conflict with 
and undermine existing employment laws. The committee process is so 
important because that is where we carefully evaluate in a much less 
formal situation the impact of pending legislation and its relation 
with current law.
  Let me explain a little bit more how that committee process works. 
Besides the hearing part where we get to bring panels of experts before 
us and ask them extensive questions so we have a better understanding 
of what is going on and to give them an opportunity to speak on the 
provisions that are before us, we also have what we call a committee 
markup.
  The committee markup is where most of the work for this Chamber is 
done. It is a much smaller group; it is a much more informal group. 
People turn in their amendments ahead of time so that they can be 
reviewed by all. Even on the day of the markup people can get together 
and work on amendments to get agreement. It is fairly successful. The 
amendment process usually results in a bill coming from committee with 
about 80-percent agreement.
  The unfortunate thing for this country is that the bill comes to the 
floor, and what we usually debate is the 20 percent we do not agree on. 
That is not the case on this particular item. This has not even been 
discussed in committee, so the 80-percent agreement is not there. The 
ability to work out issues with some flexibility is not there. I am 
sure there are provisions in this bill that are written in a way that 
the author probably wishes were different. I certainly wish they were 
different.
  The first bill I ever did in the Wyoming legislature was only a 
three-sentence bill when I took it to the legislature. In committee, it 
got two amendments. On the floor, it got three amendments. When it went 
to the Senate side, it did not get any in committee but it got one on 
the floor. What I learned through that process was that every step of 
that made an important difference. It turned out to be a far better 
bill because all of the opinions of all of the people serving in that 
body were injected and they could see a lot more different directions 
than any one member of that body.
  That is how we work it here. We work it so that the 100 Senators have 
an opportunity to take something as complicated as this and make 
changes to it. Then the House looks at the same thing. Again, there are 
a lot more opinions that get into the bill.
  The committee process is so important because that is when we 
carefully evaluate the impact of pending legislation and its 
relationship to current law. We did not do that here. What we have here 
is a 158-page proposal which is not related to the underlying bill, and 
that proposal rewrites employment law without the benefit of hearings 
or committee consideration. That process is flawed and irresponsible.
  So, more specifically, what will this amendment do? It creates a new 
Federal law that mandates employers, including small employers, to give 
up to 30 days of leave to an employee to address domestic or sexual 
violence. However, this proposal ignores important requirements that 
Congress applied to leave taken under the Family and Medical Leave Act, 
FMLA.
  Let me highlight a few of the differences between FMLA and the Murray 
amendment.
  The Family and Medical Leave Act applies to employers with 50 or more 
employees. The Murray amendment applies to employers with 15--that is 
15, instead of 50--employees. Most small businesses do not have the 
processes or personnel necessary to begin complying with this new leave 
requirement.
  In the past, Congress has recognized the burden of workplace 
regulations on small businesses. However, this amendment would impose 
workplace regulations on small businesses never before covered by 
Federal employment laws. This amendment would undermine the small 
business exemption Congress included in the Family and Medical Leave 
Act.
  The Family and Medical Leave Act imposes a length-of-service 
requirement for employees to be eligible for leave. The Murray 
amendment has no service requirement for an employee to be eligible. 
Under this amendment, a worker is presumably eligible for leave on the 
first day of work.
  Under the Family and Medical Leave Act, employers can require a 
health provider to certify the need for leave. This amendment invites 
misuse and abuse because there is no third-party verification--no 
third-party verification--for the leave to be required. So if a person 
says they were abused, that is good enough to take time off.
  The Murray amendment does not amend the Family and Medical Leave Act 
itself; instead, it gives more capability to someone, under this 
amendment, than they would get under the

[[Page 5211]]

regular law. It is a backdoor effort to expand Federal leave law at the 
expense of equity and clarity.
  This amendment prohibits employers from discriminating against an 
individual who is ``perceived'' to be a victim--that is interesting 
wording, ``perceived'' to be a victim--of domestic or sexual violence. 
Individuals with absolutely no legitimate claims of domestic or sexual 
violence would have a cause of action under this vague and broad 
standard.
  How are employers and courts to determine who a ``perceived'' victim 
is? Whatever the intent of this legislation, the result will be 
excessive confusion and, worse yet, excessive litigation. The amendment 
defines a ``victim of domestic or sexual violence'' to include--and I 
am sure the Senator from Alabama, who is on this committee that has not 
had a hearing on it yet, who is on the floor, will make some comments 
on this--an ``individual whose family or household member has been a 
victim of domestic or sexual violence.''
  Under this definition, family-member abusers--such as parents who 
molested their own children--would be protected under this poorly 
drafted legislation. People could get time off for bad behavior.
  There is a good reason for this process we have of hearings, 
committee markup, debate on the floor, with amendments, and then the 
discussion between the two bodies.
  The problems with the amendment extend beyond poor drafting. This 
amendment is inconsistent with the remedy and enforcement provisions of 
existing employment discrimination laws. Under title VII of the Civil 
Rights Act of 1964, the Americans with Disabilities Act, and the Age 
Discrimination in Employment Act, Congress gave the Equal Employment 
Opportunity Commission the role of investigating and enforcing 
complaints of employment discrimination. These existing laws require a 
claimant to first file a complaint with the Equal Employment 
Opportunity Commission before being able to file a private suit in 
court.
  The Equal Employment Opportunity Commission plays a vital role in 
employment nondiscrimination laws. The Commission's mediation 
activities expedite resolution of cases and reduce the backlog of 
employment cases in our courts. This amendment would allow victims of 
domestic violence discrimination to bypass the administrative process 
and file suit in court. Allowing claimants to bypass the Equal 
Employment Opportunity Commission undermines the efficiency of the 
agency and the legislation.
  This amendment disregards the remedy structure of other Federal 
employment discrimination laws. Existing laws limit available damages. 
For example, consequential and punitive damages for claims under title 
VII of the Americans with Disabilities Act are progressive with the 
size of the employer and capped at $300,000. This amendment provides 
unlimited compensatory damages and punitive damages up to three times 
the amount of the actual damages.
  Why should a victim of domestic violence discrimination be able to 
circumvent the complaint process that victims of race or disability 
discrimination must follow? Why should a victim of domestic violence 
discrimination be able to recover greater damages than victims of race 
or disability discrimination? There is no justification for this 
unequal treatment. We must guard against enacting legislation that, in 
an effort to protect individuals from one type of discrimination, 
creates inequities for those who have been subjected to another type of 
discrimination.
  I find the leave and discrimination provisions of this amendment very 
troubling. I find the unemployment compensation provisions to be 
misguided as well. The amendment requires States to provide 
unemployment compensation benefits to individuals who are separated 
from employment as a result of domestic violence. That has always been 
and is a State decision. Under the amendment, that is taken away from 
the States. States can decide and, in many instances, have decided. 
Individuals would receive unemployment compensation if they leave 
employment because of a reasonable fear of domestic violence, a desire 
to relocate to avoid domestic violence, or to obtain physical or 
psychological treatment.
  Eligibility for unemployment compensation is and should continue to 
be a State--not a Federal--decision. The terms of unemployment 
compensation are decided on a State-by-State basis. States have the 
authority to extend unemployment compensation to victims of domestic 
violence. A number of States have already done so. This amendment 
imposes a Federal mandate and higher costs on State unemployment 
compensation programs. The Federal mandate will impose huge penalties 
on employers in States that fail to comply. It is estimated that the 
Federal unemployment tax on all employers in the State will be 
increased from $56 per worker to $434 per worker. How many jobs will 
that cost?
  A Federal mandate to cover domestic violence under State unemployment 
compensation programs requires States to pay the tab. However, we give 
the States no voice in whether or how to do so. It is unfair and 
irresponsible for Washington to impose this burden--and, in fact, 
against the law--on already burdened State unemployment programs and 
employers.
  Domestic violence is a serious problem that devastates lives and 
shatters families. However, we cannot allow a misguided attempt--with 
no hearings--to address this problem and create new problems that will 
impose unfair burdens on States and employers, particularly small 
businesses.
  When I am back in Wyoming, I like to hold town meetings so I can find 
out what is on the minds of my constituents. At each town meeting, 
there is usually someone in attendance who is quite concerned about 
Government regulations. I am often told to rein big government in, keep 
the rules and regulations simple and responsive, and make sure they 
make sense.
  This amendment takes the opposite approach. It is a classic example 
of one size fits all that doesn't fit outside the beltway.
  The amendment ignores the careful consideration Congress has given to 
existing employment laws with vague and broad language that conflicts 
with current Federal employment law. Lawyers, not domestic violence 
victims, will be the big winners in this one.
  I will close by sharing a letter from a survivor of domestic violence 
who divorced her first husband in 1978 because of abuse and, in 
addition, is an employment attorney with 23 years of experience 
specializing in employment law.
  I ask unanimous consent to print the letter in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            Overland Park, KS,

                                                   March 22, 2204.
     Re Murray amendment S.A. 2859 (Domestic Violence Prevention 
         Act) to H.R. 1997 (Unborn Victims of Violence Act of 
         2004).

     Senator Sam Brownback,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Brownback: I am writing to ask that you oppose 
     S.A. 2859 (Domestic Violence Prevention Act), proposed by 
     Senator Murray as an amendment to H.R. 1997.
       I have reviewed the Murray Amendment from what I believe is 
     a rather unique perspective. I am a survivor of domestic 
     violence and divorced my first husband in 1978 because of the 
     abuse. I have also served on the Board of Directors for two 
     organizations devoted to the prevention of domestic violence 
     (see attached Exhibit ``A'' for more information). In 
     addition, I am an employment attorney with almost 23 years of 
     experience specializing in employment law.
       As a result of my background and experiences, I am 
     sensitive to the victims' perspective, but also sensitive to 
     the employers' perspective. To say the least, the path from 
     victim status to survivor status is not easy, and it is 
     beneficial for victims to have resources available to help 
     them. At the same time, I am aware of the challenges faced by 
     employers in complying with new employment laws, especially 
     laws with good intent but which are poorly written and which 
     have not been given proper thought.
       Although I very much appreciate the intent of the Murray 
     Amendment, I cannot support it, particularly Subtitle A 
     (Entitlement to Emergency Leave for Addressing Domestic and 
     Sexual Violence). Its intent may be laudable, but it will 
     have unintended

[[Page 5212]]

     consequences that could easily be avoided if a more 
     thoughtful approach to such a law were to be taken.
       I have a number of concerns about Subtitle A of the Murray 
     Amendment. I have summarized my primary concerns below (with 
     a more detailed explanation attached as Exhibit ``B''):
       1. Potential for Misuse and Manipulation. Subtitle A has 
     many loopholes that will allow it to be misused and 
     manipulated by employees and their abusers. I have identified 
     five different ways that Subtitle A can be easily misused or 
     manipulated (see Exhibit ``B''). The potential for misuse and 
     manipulation is directly related to the fact that an employee 
     merely has to sign a self-serving certification stating that 
     he/she is a victim of domestic violence. No verification is 
     required, nor are any mechanisms included in Subtitle A to 
     enable an employer to question the veracity of the 
     certification or to prevent fraud.
       2. Perpetuation of Domestic Violence. One of the outcomes 
     of Subtitle A will be the perpetuation of domestic violence 
     in some situations. This can occur in two ways. First, an 
     abuser will be able to force a victim, under threat of 
     violence, to take domestic violence leave from work whenever 
     the abuser wants the victim to take time off from work for 
     reasons unrelated to the proposed law's stated purposes. 
     Second, a victim who is not making any effort to remove 
     himself/herself from a domestic violence situation can simply 
     take time off work after suffering abuse to ``recover'' from 
     injuries, even if he/she seeks no medical or other help. In 
     either situation, domestic violence leave will become a 
     method of merely ``managing'' or ``tolerating'' abuse and 
     threats of abuse. It will enable abuse instead of helping a 
     victim become a survivor.
       3. Adequate Time Off From Work Already Available. I 
     seriously question the necessity of this law. I believe that 
     most employees already have adequate time off work programs 
     available to them in the event they need domestic violence 
     leave. Those time off programs include family and medical 
     leave under the Family and Medical Leave Act (FMLA) and its 
     state counterparts, leave of absence or other accommodations 
     under the Americans with Disabilities Act (ADA) and its state 
     counterparts, employers' existing vacation and sick day 
     policies, and employers' existing attendance policies. The 
     proponents of Subtitle A have not provided any data to verify 
     that employers' existing time off programs are inadequate.
       4. Lack of Due Process for Employers. Considering that 
     Subtitle A requires employers to provide a new benefit to 
     employees, I find it appalling that employers have had no 
     opportunity to provide input or be heard on this proposed 
     law. Basic principles of fairness would seem to suggest that 
     employers be given due process (rather than be dictated to) 
     on an issue of this importance. I have no doubt that 
     employers could provide very useful comments and suggestions.
       Subtitle A of the Murray Amendment raises many questions 
     that obviously have not been given much, if any, thought. 
     This letter is by no means to be read as including all of my 
     concerns about Subtitle A. I have others, but have tried to 
     focus on the major ones in this letter.
       For the sake of sound policy for victims of domestic 
     violence like myself, for other employees who will have to 
     absorb their workload when they are absent due to domestic 
     violence issues, and for employers who will have to comply 
     with this proposed law, I urge you to oppose Senator Murray's 
     Amendment S.A. 2859. Thank you for your thoughtful 
     consideration of my comments.
           Sincerely,
                                              Sue Kennedy Willman.

  Mr. ENZI. She writes:

       Although I very much appreciate the intent of the Murray 
     amendment, I cannot support it.

  She gives an explanation and lists four very specific reasons: One, 
the potential for misuse and manipulation; two, the perpetuation of 
domestic violence; three, adequate time off from work already 
available; and four, the lack of due process for employers.
  This is a person who has been there. This is a person who has been 
abused. She did find a way out. And incidentally, in her credentials, 
she has devoted most of her life to helping battered women in the 
Kansas City metro area and has an astounding record of doing that and 
is very concerned about us going this way.
  Again, without a hearing, I am concerned, too. I urge my colleagues 
to oppose this amendment, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I listened carefully to the Senators from 
Ohio and Utah and Wyoming express their concerns about the amendment as 
we have written it. I know the underlying bill was not marked up in 
committee either, so I find that argument hard to believe.
  I hear their argument. I understand they are going to defeat this 
amendment. I want to move forward on the issue of domestic violence. It 
is extremely important that when we are talking about the abuse of 
women, that we do something to prevent it. I want to make sure we do 
take a step forward.
  Therefore, I ask unanimous consent to send a modified amendment to 
the desk.
  Mr. DeWINE. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. MURRAY. Mr. President, that is frustrating. I listened to the 
Senators from the other side say they want to do something about 
prevention. I hear them saying they have objection to specific 
concerns. I am willing to make a modification to my amendment to move 
it forward. It is fairly clear the Republican leadership simply doesn't 
want to engage in a serious debate to address the cycle of violence. 
That is unfortunate. We could take steps forward to change lives for 
women who have been victims of abuse.
  I yield 15 minutes to the Senator from Louisiana, and I ask unanimous 
consent that she be listed as a cosponsor of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Louisiana is recognized for 15 minutes.
  Ms. LANDRIEU. Mr. President, I come to the floor to support my 
colleague from the State of Washington and her comprehensive amendment 
on this important bill and discussion this afternoon. I thank her for 
the extraordinary work she has done in the area of domestic violence, 
not just this year but in every year she has been a Member of this 
body, over a long period of time, her intense interest and advocacy for 
women and for children and for families and for communities which her 
effort shows today.
  I have a great deal of respect for the Senator from Ohio. He and I 
usually don't find ourselves on opposite sides, so it is unusual that I 
would be here supporting an amendment and the Senator from Ohio, Mr. 
DeWine, would be opposing it. I understand there are a few--not many--
good reasons that people could raise today against this amendment. But 
I will tell you what one of the reasons is not that I have heard in 
this Chamber and I have seen sent out by such groups as the U.S. 
Chamber of Commerce and the U.S. Right to Life organization, two 
organizations that oppose Senator Murray's amendment. They have some 
legitimate arguments in this document about some of the details of the 
amendment, but they also go so far as to say that one of the reasons we 
should not support this amendment is because it is irrelevant to the 
underlying subject.
  Irrelevant? Domestic violence is irrelevant to the deaths of pregnant 
women, when experts across the board, Republican and Democratic, people 
who have been prosecutors before--go look at any study--will tell you 
the majority of women who are killed in the latter terms of their 
pregnancies are killed not by strangers, not by people who just happen 
on to their house, but they are killed by the hands of their husbands 
or the fathers of their children?
  I have to sit here and read a vote alert from the Chamber of 
Commerce, supposedly representing women who own businesses, supposedly 
representing women, many of whom are business owners, who perhaps have 
been victims of domestic violence, and not a word in this memo about 
``so sorry that you were beaten so badly that you and your unborn 
died,'' nothing. They go on to say this is an inappropriate vehicle for 
this amendment because the issues involved are ``completely 
unrelated.''
  I hope my Chamber of Commerce in Louisiana did not approve this 
document because I don't believe businesses in Louisiana think these 
subjects are unrelated, since one of the recent things that just 
happened in my State was a woman shows up to go to work about 2 years 
ago in Jefferson Parish, gets out of her car, and in front of about 50 
people, going through the revolving doors to get into her place of

[[Page 5213]]

business, her husband comes up to her, takes out a revolver, sticks it 
in her face and blows her head off. Whether she was pregnant or not, I 
can't recall. But to say that it is irrelevant to the subject that we 
are debating is an insult to many people.
  Let me clarify one other point. People come to this floor and act 
like the Senator from Washington and the cosponsor, who was Senator 
Wellstone, before his death--he did a magnificent job on this subject 
the years he represented his State in the Senate. In his memory, I will 
say this: He worked like a Trojan on this subject. This bill was 
introduced in the 106th Congress, the 107th Congress, and the 108th 
Congress. But this bill, although there has been one hearing, pushed 
mostly by Democrats, has never received a markup, not in the 106th, 
107th, and not in the 108th. Evidently, there is not enough Republican 
leadership thought that this is an important subject to discuss.
  Those of us who came to the floor today to debate this issue to try 
to protect people from murder--women and, yes, their unborn children--
wonder what we have actually accomplished today because with the 
underlying bill, the only way you can prosecute people is if the murder 
actually occurs on Federal property.
  The bill we are going to pass today is not nearly as good as the 21 
or 31 statutes that are already on the books that are legitimate and 
genuine efforts. When we asked to have some help for the victims of 
domestic violence, who are women and their children, we get all kinds 
of ``can't do it,'' ``too complicated,'' ``too expensive.'' Then I have 
to read the Chamber of Commerce business alert that says the whole 
subject is not relevant.
  I want to read from ABCNEWS.com for the Record, ``Expectant Victim,'' 
April 25.

       On Monday, police found the remains of 20-year-old April 
     Renee Greer, whose dismembered body was found in a trash can 
     that had washed into a farmer's field. She was 8\1/2\ months 
     pregnant when she was reported missing on March 8.
       Experts and women's advocates are not surprised to find 
     that pregnant women are especially prone to violent deaths. 
     In many cases, pregnant women are killed by their husbands or 
     significant others.
       ``Most pregnant women are killed by people they know, like 
     husbands or boy friends''. . . .

  Think of that. It is one thing to get attacked in a dark alley by 
somebody you don't know; you are coming home later than you should be. 
It is another thing to be beaten to death by someone who is supposed to 
love you. It is very terrible for a child to sit there and watch their 
father, in many cases, beat up their mother in front of them. It breaks 
more than their spirit. It crushes their heart and destroys their life.
  You would think that somebody on the other side of the aisle would 
think this was significant and relevant and would want to do something 
about it and put some money in this bill to do something about it. But, 
no, we don't have time for it, we can't have a hearing on it, and it is 
too complicated for anybody to understand.
  I don't think this is complicated. Let me go on to read this:

       ``Sometimes it depends on how far along the woman is in the 
     pregnancy,'' she said.

  This is Pat Brown, a criminal profiler and CEO of the Sexual Homicide 
Exchange. I am sorry, I don't know what State.

       ``Sometimes it depends on how far along the woman is in the 
     pregnancy,'' she said. ``If it's a serial killer, they 
     normally go after women who may be three months pregnant and 
     are not showing very much. With serial killers, the women are 
     tiny, easy to handle, not too big--someone they can easily 
     overcome. They go after a `neat package,' something that is 
     desirable where they could get something big.
       ``With husbands or boyfriends, women tend to be eight 
     months pregnant--they're there and the baby is coming,'' 
     Brown continued. ``They can see the woman and unborn child as 
     something that is in the way, keeps them from living the 
     lifestyle they want.''

  And we come to the floor and ask for a little help for domestic or 
sexual violence, maybe a little time off of work to get her situation 
in order because her husband is working and he also happens to be the 
one beating her. She needs 30 days to get a job. They say: No, we 
cannot give you 30 days. We ask for 30 days of unpaid leave, and the 
Chamber of Commerce goes wild saying they can't afford it--and they 
don't have to pay for it.
  We talk about increasing grants to local communities to help them 
provide shelters, since we have not seen a significant increase in 
shelters, but that is too complicated.
  So I ask, What have we done today? Are we going to save any lives, 
whether it is the life of the unborn, or whether it is the life of a 
woman? No, because there is no money in this for prevention. We, 
obviously, want to just prosecute people in a very small place, on 
Federal land, maybe just to make a point. I came to the Senate to do 
more than just make a point, and I think the Senator from Washington 
came here to make more than a point. We came here to make a difference. 
This afternoon, there is no difference being made and it is a shame.
  In conclusion, I want to say something about the Right to Life 
Association. I have worked with them on cloning. I don't support human 
cloning. Some people do; I don't. I have worked with them. When they 
came to my office yesterday to tell me they were sorry that they could 
not support the Murray amendment because it would ``mess up the 
bill''--and they need a clean bill--I would like to think they need an 
effective bill. But they just need a clean bill. For what, I am not 
sure. Maybe for television commercials.
  I think we need an effective bill. I would like to prevent these 
deaths of unborn children, of women, give prevention on the front end, 
and then go ahead and prosecute people. In my State, that is what we do 
because we already have a law on the books. So I am happy that 
Louisiana is already there. The Right to Life Association said they 
could not support help for domestic violence victims because they, 
again, agreed with the Chamber of Commerce that it is not relevant.
  I hope people who support the Right to Life Association might write 
them an e-mail or something today and explain to them that regardless 
of how you feel, whether you are pro-choice or pro-life, clearly, this 
is relevant to the underlying bill.
  With that, I yield the floor. I support the Murray amendment.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. DeWINE. Mr. President, before I yield to my friend and colleague 
from Alabama, let me say that I understand what my colleague from 
Louisiana has said and what my colleague from Washington State has 
said. I will reiterate what I said a few minutes ago.
  The reality of the way this place works, the way the House works, is 
that whatever the merits of this amendment, the passage of this 
amendment will effectively mean, that the underlying bill will simply 
die. The only thing to prevent the underlying bill from going to the 
White House and being signed by the President of the United States is 
the Murray amendment. That is what the facts are.
  If the Murray amendment is attached to this bill, we can kiss this 
bill goodbye. That is a fact. I yield to my colleague from Alabama.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I thank the Senator from Ohio for his 
leadership on this issue. He has taken the issue and considered it 
thoughtfully and prepared a seven-page piece of legislation that I 
believe, as a former prosecutor, stands the test of careful 
draftsmanship and is worthy of passage. I believe we have a majority in 
the Senate prepared to pass this legislation. But it is threatened by 
this amendment. The Senator is correct that if this amendment passes, 
this bill will not become law. So a vote for this amendment is a vote 
against the underlying legislation.
  I further say the amendment--the 158-page amendment--is not so 
carefully drafted, has quite a number of problems, and does not deal 
effectively with the issue that the Senator seeks to promote.
  The day before yesterday, in my office, I met with a group of people 
from one of America's great corporations, an

[[Page 5214]]

international corporation. I asked the human resources officer--and I 
asked them all--how things were going out there and what can we do to 
help, what problems do they have. The human resources officer said: The 
one thing causing us the most grief is the Family Leave Act. For a lot 
of different reasons, complex reasons, this act is subject to abuse. We 
certainly believe and support a mother being home with a young child. 
We support the purposes of the act, but there are problems with it. We 
would like for you to look at it and see.
  That was shared with me the other day. It was totally unrelated to 
this 158-page amendment that has not undergone careful scrutiny, and I 
believe goes much further and provides benefits that far exceed what is 
under the current Family Leave Act, which has problems with it.
  We need to, as Members, be careful what we pass, what we mandate on 
private entities, and what we tell them they must do. We should do so 
in a way that furthers the public policy we want to further, which is 
to help families who need leave for family emergencies. We want to do 
that, and the act does it in many different ways. But it is not 
perfect. This amendment is even less perfect.
  Let me show you a couple things we discovered in a brief reading of 
the Murray amendment. It says:

       The term ``victim of domestic or sexual violence'' includes 
     an individual whose family or household member has been a 
     victim of domestic or sexual violence.

  Clearly, I think I can say, as a former prosecutor, that would 
include the perpetrator. That would include the wrongdoer. So now is 
the wrongdoer going to be able to ask for time off? The law would 
mandate it, I suspect. Some say that would not happen. But I am telling 
you, people use the law as it is written to further their agendas when 
they want to. Maybe he had to go to court to defend himself, and he is 
going to claim time off for that. I bet you his lawyer would say he is 
entitled to time off.
  Here is another one:

       The term ``employee'' means any person employed by an 
     employer on a full or part-time basis, for a fixed time 
     period, on a temporary basis, pursuant to a detail, or as an 
     independent contractor.

  That is not even in the current Federal Leave Act. So we have added 
this statement. So the businessperson has to take care and provide 
leave or suffer. I think that is a step to which we ought to give a lot 
of thought before we put it into law.
  Another thing that hit me in talking with this lady the day before 
yesterday, and talking about problems with the act, is the difficulty 
of a business in having any proof to ascertain that the person really 
does need leave. Under the act, after you get one approval, say, for a 
child's asthma, you never have to present proof again, or even just 
make a statement that it is so and the businesses are bound by it.
  A lot of businesses on a manufacturing basis try to do things well. 
They have a team that produces a product. When one member of that team 
unexpectedly or routinely misses, it makes it difficult for them. If 
they have a legitimate excuse, OK. This says:

       An employee may satisfy the certification requirement of 
     paragraph (1) by providing to the employer . . . a sworn 
     statement of the employee.

  That automatically takes care of it--no proof of a doctor's 
certificate, a lawyer's statement, or anything else. I just point that 
out.
  The hour is late. As a member of the Health, Education, Labor, and 
Pensions Committee, as Senator Enzi said so eloquently and in detail, 
these issues need to be given careful thought. Let's don't kill this 
underlying bill Senator DeWine worked so hard on and has dealt with so 
many Members of this body to refine language so everybody can agree to 
it and it will have a majority vote.
  Let's don't kill this legislation that is important to protecting 
those unborn victims of violence in America by tacking on an amendment 
that is not ready, that has problems with it, on which we have not had 
hearings and should not be added to this bill, anyway. If it is added 
to the bill, the bill will be in trouble.
  I thank the Chair. I thank Senator DeWine for his leadership. I yield 
the floor.
  Mr. DeWINE. Mr. President, I yield time to the Senator from 
Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Mr. COLEMAN. Mr. President, I had a chance to hear my colleague from 
Ohio speak in humble terms about the work he did, the commitment he 
made when he was working in Ohio at the State level and now in the 
Senate regarding issues of domestic abuse and sexual violence.
  I don't know if there is a stronger champion in the Senate than my 
colleague from Ohio, Senator DeWine, on these issues. I know where his 
heart is. I know where his passion is.
  When I look at the Murray amendment, there are provisions in this 
amendment I would like to support. There are principles in this 
amendment on which I would like to work with her and I would like to 
see happen. I believe--I know my colleague from Ohio feels the same 
way, and we have to be very candid, we have to be very blunt--that the 
reality is that the effect of the Murray amendment, if it were to pass, 
would simply kill the underlying bill.
  We have an opportunity to do something today for unborn victims of 
violence. We have an opportunity to do something. Or we can do what I 
see going on far too often in this Chamber, and that is to--I don't 
know whether it is political gamesmanship, I don't know if it is 
``gotcha'' policy, I don't know what it is, but it is not about getting 
something done. We can get something done today. We can pass a clean 
Unborn Victims of Violence Act. For those of us who would like to work 
with my colleague from Washington on some of these important 
principles, who really want to get something done, let's be honest and 
let's do it in a form and manner in which we know something will 
happen.
  If this amendment is attached to this bill, this bill dies. Some of 
the principles I may believe in and want to work on that are in the 
Murray amendment will go nowhere, and we all know that.
  I did not come here to play a game, to participate in endless debates 
for the sake of debating, to cast votes to be measured on ``you are for 
sexual violence or you are against.'' That is not what this is about. I 
got elected on a belief that we could get some things done, and that is 
hard in this body because it is so easy to kill a bill. It is so easy 
to tack on an amendment that is so hard to vote against because we are 
afraid of being accused of being against domestic violence.
  I am passionate about dealing with domestic violence. I was a 
prosecutor in the State of Minnesota and prosecuted some of the early 
child abuse cases. I was mayor of the city of St. Paul. I thought we 
did cutting edge things to deal with domestic and sexual violence. I 
want to do more about domestic and sexual violence while I am here in 
the Senate, but we are not going to do more about it by voting for the 
Murray amendment today.
  I am going to cast my vote against the Murray amendment, even though 
I share a belief in some of the principles the good Senator from 
Washington is trying to raise. I am going to vote against it because I 
want to get something done, and the one opportunity we have today, I 
say to my colleagues, to get something done is to pass out of this body 
a clean Unborn Victims of Violence Act. If we pass this bill and it is 
signed into law, we have provided protection on the Federal level--by 
the way, it is similar to what many States do and what we do in the 
State of Minnesota--for a mom and an unborn baby, such as the Laci and 
Conner Peterson case. We all know many cases like that.
  Again, I appreciate the principles my colleague from Washington is 
attempting to raise, but I think it is time to be very blunt and very 
honest. If you want to do something about that issue, this bill is not 
the place to do it. It will not go forward. It will not further the 
ends about which we are talking.
  We have an opportunity to do something today, and that is to pass the 
Unborn Victims of Violence Act. I support

[[Page 5215]]

this bill in a clean manner. Tomorrow I will work with my colleague 
from Washington and my colleague from Ohio and do what needs to be done 
to further some of the very laudable goals she desires.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I yield to my colleague from Oklahoma. How 
much time do I have?
  The PRESIDING OFFICER. Eleven minutes 50 seconds.
  Mr. DeWINE. I yield to my colleague from South Carolina first.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, I thank Senator DeWine 
for yielding. I will be brief.
  We just rejected the idea Roe v. Wade rights should be used by 
criminals to avoid prosecution for their criminal activity that results 
in the mother being denied to have a child. Roe v. Wade is an honest, 
genuine debate that exists in this land. Eighty percent of Americans, 
when polled, believe if a criminal takes the right to have a child away 
from a mother, they ought to be prosecuted to the fullest extent of the 
law for what has happened to that family--damage to the mother and 
damage to the unborn baby.
  Professor Walter Dellinger, a former adviser to President Clinton, 
said:

     . . . although he is a strong advocate for a woman's right to 
     choose abortion, he sees no major problem with fetal-homicide 
     laws. ``I don't think they undermine Roe v. Wade,'' he said. 
     ``The legislatures can decide that fetuses are deserving of 
     protection without having to make any judgment that the 
     entity being protected has freestanding constitutional 
     rights. I just think that proposals like this ought to be 
     considered on their own merit.''

  That is all we are asking. Senator Murray has a very long and 
complicated amendment that deals with domestic violence, family leave, 
and other issues. South Carolina, to its shame, for lack of a better 
word, has one of the leading number of domestic violence cases against 
women. Our legislature is dealing with that. We can do more here. But 
this should stand on its own.
  Just as we said no to Roe v. Wade being an impediment to prosecuting 
a criminal who attacks a mother who chooses to have a child, we will 
not let the criminal benefit from Roe v. Wade, nor should we allow an 
amendment to destroy a bill whose purpose is to put people in jail who 
attack pregnant women and do damage to the mother and the child.
  No good purpose is served by destroying this bill, even though the 
underlying problem is very real. This bill should stand on its merits. 
There are more cases such as this than we would all like to admit. We 
have a chance to do something about it today. Please vote against 
Senator Murray's amendment.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I yield to my colleague from Oklahoma.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, to inform my colleague from Washington, 
at the appropriate time, when she concludes her statement, I plan on 
making a budget point of order.
  First, I compliment my colleague, Senator Graham from South Carolina, 
for his leadership on this issue for years. I believe today we are 
going to pass a bill that is long overdue.
  I also compliment my colleague, Senator DeWine from Ohio, for his 
leadership.
  I complimented him in private. I have observed his very high quality 
of debate. We have had some excellent debate today, and I compliment 
Members on all sides. I think it has been very important and we are 
going to pass a good bill today, largely due to the leadership of the 
Senator from Ohio, Mr. DeWine, and also Senator Graham of South 
Carolina. I compliment both of our colleagues for their effort. This is 
an important bill, one that deserves to be passed and sent to the 
President.
  I rise today to speak against the amendment of our colleague from 
Washington. I have great respect for our colleague from Washington, 
especially for the title of the amendment. The Wellstone Domestic 
Violence Act is very well named, but when looking at the substance of 
the bill I find it leaves a lot to be desired.
  I happen to believe in the legislative process. This bill has not had 
a hearing. I happen to be on the Finance Committee. There are two or 
three things that deal with Finance Committee issues that we have not 
touched. It did not go through the Labor Committee. It addresses family 
leave, not the Family Medical Leave Act. It is basically a whole new 
act. It is not consistent with the Family Medical Leave Act. To qualify 
for the Family Medical Leave Act, we exempt employers with 50 employees 
or less. This says employers of 15 or less. That does not make sense to 
me.
  I look at the unemployment section of it, and a lot of people are not 
even aware of this--I have not heard very much debate about this--but 
if a State does not comply with the unemployment dictates given by this 
bill we tell the States they must have unemployment compensation for 
people who are victims of abuse as defined by this. The tax to the 
State goes from $56 a year to $434 a year. That is a 675-percent 
increase. That is a heavy penalty on the States.
  One could say, well, they give States time to amend their law. They 
are given 25 days if they are in session and 180 days if they are not 
in session. Oklahoma is shortly going to be out of session and we do 
not go back into session for the rest of the year, so 180 days would 
not be adequate. I guess there would have to be a special session. I 
used to serve in the Oklahoma Legislature. Most legislatures are kind 
of like Congress, they do not move that fast. If they do not move that 
fast, they have a very heavy penalty increase in their unemployment 
compensation taxes.
  The main thing I guess I am objecting to, as I look at it, there is a 
new tax credit in this bill. It is a 40-percent tax credit for a 
provision that is very expensive. It applies to a lot of things. It 
applies to a long definition that would qualify expenses that an 
employer might incur to implement workplace safety.
  I used to be an employer in the private sector, and I know all 
employers are interested in safety. Almost all of those expenses 
related to safety are expensed. None of them, to my knowledge, get a 
tax credit. This amendment would say, for some safety provisions 
employers are going to get a 40-percent tax credit.
  Then I started looking at the definition. It applies to basically any 
new security personnel, purchase, or installation of new security 
equipment and so on. That is wide open. In this day and age of 
terrorist threats, there are a lot of people who are going to be hiring 
more security personnel and they are going to say: Thank you very much, 
Government, because you just gave us a 40-percent tax credit.
  If a company is profitable, that is worth a lot. If they are not 
profitable, it is not worth much.
  I asked the Joint Tax Committee to give an estimate on how much this 
would cost. I just received it. I ask unanimous consent that a letter I 
received from Dr. George Yin, that gives the revenue estimate, be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                  Joint Committee on Taxation,

                                   Washington, DC, March 23, 2004.
     Hon. Don Nickles,
     U.S. Senate, Committee on the Budget,
     Washington, DC.
       Dear Senator Nickles: This letter is in response to your 
     request dated March 17, 2004, for a revenue estimate for 
     Senate amendment 2859, which according to your request may 
     come up for a vote on March 24, 2004, under a unanimous 
     consent agreement for H.R. 1997.
       In general, the amendment would establish a new general 
     business tax credit equal to 40 percent of the domestic and 
     sexual violence safety and education cost paid or incurred by 
     an employer during the taxable year. Any amount taken into 
     account for purposes of determining the credit would not be 
     eligible for any other credit or deduction. Under the 
     amendment, the types of cost that may be included for 
     purposes of determining the

[[Page 5216]]

     amount of the credit include, among other things, the hiring 
     of new security personnel and the purchase or installation of 
     new security equipment, the purpose of which is to address 
     domestic or sexual violence. Because the hiring of all new 
     security personnel and the purchase or installation of all 
     new security equipment is, in part, for the safety of 
     employees, we have assumed that all such expenditures would 
     be eligible for the tax credit.
       The amendment would apply to taxable years beginning after 
     December 31, 2003. Estimated changes in Federal fiscal year 
     budget receipts are as follows:

                [By fiscal years in billions of dollars]

2004...............................................................-0.6
2005...............................................................-1.3
2006...............................................................-1.5
2007...............................................................-1.7
2008...............................................................-1.8
2009...............................................................-1.8
2010...............................................................-1.9
2011...............................................................-1.9
2012...............................................................-1.9
2013...............................................................-2.0
2014...............................................................-2.0
2004-09............................................................-8.7
2004-14...........................................................-18.4

       I hope this information is helpful to you. If we can be of 
     further assistance in this matter, please let me know.
           Sincerely,
                                                    George K. Yin.
  Mr. NICKLES. He says the cost of this provision in 5 years is 
estimated at $8.7 billion, and over 10 years, $18.4 billion.
  That is a lot of money. We are going to say companies get a 40-
percent tax credit if they do something in the realm of safety, which 
one could almost drive a truck through anything and call it safety.
  I am not a big fan of tax credits anyway, but that is beside the 
point. This is a very expensive provision, one, in my opinion, that has 
not been well thought out, one that is enormously expensive, one that 
is not paid for.
  A week before last, we had votes saying we should be paying for these 
new spending proposals and tax cuts. Well, this is a big tax cut that 
is not paid for. Frankly, it is a big loophole that is not paid for. It 
also causes other little constitutional problems.
  We have a Constitution that says all revenue measures have to 
originate in the House. We do not have a tax bill before us. This did 
not originate in the House of Representatives. I know my colleagues 
very well in the House. I respect them and I know they will blue-slip 
this if this amendment is passed because this would turn this into a 
tax bill. So this amendment would kill this bill.
  Our colleagues in the House want to pass the bill as it is. I hope 
that a majority in the Senate want to pass the bill as it is.
  As it is, this amendment does a couple of things. It increases 
spending and it increases taxes, both of which violate the budget, both 
of which I can make a budget point of order against, and at the 
appropriate time I will make a budget point of order against this 
amendment, certainly for the tax provision, and I will leave it at 
that.
  I yield the floor.


         MURRAY AMENDMENT TO THE UNBORN VICTIMS OF VIOLENCE ACT

  Mr. KENNEDY. Mr. President, I support Senator Murray's amendment, and 
I want my colleagues to support it too. Violence against women--
especially those who are pregnant--is a tragic example of violence in 
our society, and we need to do all we can to prevent it. Congress is 
right to address this issue and do more to protect women. But if the 
administration and Congress are serious about addressing the issue of 
domestic violence, let us do it effectively, and not turn it into yet 
another battleground in the debate over abortion.
  As domestic violence experts and advocates make clear, the Unborn 
Victims of Violence Act will do nothing to provide the protection that 
battered women need to be safe. Instead of protecting women, the bill 
focuses solely on the fetus and what happens after the crime.
  It does nothing to prevent domestic violence, and it punishes only 
one of the many possible consequences of such violence.
  The harm to women at the hands of their abusers and attackers is not 
addressed anywhere in this bill. The support and services they need to 
avoid violence in their homes or escape from it are not addressed. It 
offers no financial safety net for women who move away from their homes 
to escape from abusers. It does not address children affected by the 
abuse. It offers no health care assistance for abused women.
  The real purpose of this bill is obviously not to protect and support 
women who are victims of abuse. Its real purpose is to give new legal 
rights to the fetus, in a blatant effort to undermine women's rights 
under the Constitution and Roe v. Wade. In other words, this bill is a 
threat to women, not a protection for them.
  Proponents of this measure also call it the Laci Peterson Act, but 
this bill would have done nothing to prevent that tragedy. Federal 
criminal jurisdiction over violent crimes is very limited. The bill 
would apply only to federal and military crimes. It would have no 
bearing on the law of California or any other State. Today, 95 percent 
of all criminal prosecutions, like the prosecution of Laci Peterson's 
murderer, take place at the State or local level.
  A majority of States already have laws that enable prosecutors to 
file fetal homicide charges. In Massachusetts, the courts have treated 
the fetus as a separate victim of crime if the developing fetus has 
reached the stage of viability. That view is consistent with the 
careful balance between women's rights and fetal rights established by 
the Supreme Court in Roe v. Wade and reaffirmed in Planned Parenthood 
v. Casey. This bill completely ignores the Supreme Court's viability 
standard.
  In cases where federal law or military law applies, prosecutors and 
judges already have ample discretion to impose longer sentences for 
flagrant crimes committed against vulnerable victims. Courts have 
regularly held that the Federal Sentencing Guidelines provide for a 
sentencing enhancement based on the victim's pregnancy or injury to a 
fetus. The military also makes clear that the pregnancy of the victim 
can lead to a harsher sentence.
  The administration says it wants to prevent violence against women 
and children. But that priority is not reflected in the budget. The 
President's budget is cutting or starving key violence-prevention 
programs.
  If Congress genuinely intends to do more to prevent such tragedies, 
we should be discussing ways to strengthen the Violence Against Women 
Act and its funding.
  Since its enactment in 1994, violence against women has been reduced 
by 21 percent, so we are clearly making progress. We are on the right 
track, and there's no excuse for making a u-turn.
  The most urgent priority is the need for additional funds. The 
services available today to victims of domestic violence come nowhere 
close to meeting the obvious need. The New England Learning Center for 
Women in Transition in Greenfield, MA, has to turn away ten families 
from its shelter for each family it is able to serve. Life-saving 
services such as hotlines and emergency shelters for battered women are 
funded $48 million below the level authorized by Congress. Women across 
the country are not obtaining the help they need when they face these 
dangers or suffer from them. We can do far more than we are doing to 
see that women do not suffer from domestic violence.
  Senator Murray's amendment will do that. Unlike the underlying bill, 
her proposal will genuinely help to combat the serious problem of 
domestic violence in our country.
  Incredible as it seems, nearly one-third of all American women report 
being physically or sexually abused by their husbands or boyfriends at 
some time in their lives. A shocking 25 percent to 40 percent of all 
women who are battered are battered when they are pregnant. One study 
found that 37 percent of all women who visited a hospital emergency 
room for violence-related injuries were injured by a current or former 
husband or boyfriend. According to a study published in the Journal of 
the American Medical Association, murder is actually the leading cause 
of death among pregnant women.
  Over 3 million children are exposed to parental violence in the 
United

[[Page 5217]]

States every year. According to a report of the American Psychological 
Association, a young boy who sees his father abusing his mother is the 
strongest risk factor for future violent behavior by that child.
  Far from preventing such violence, the so-called Unborn Victims of 
Violence Act will actually prevent victims of abuse from seeking help. 
Juley Fulcher, Public Policy Director of the National Coalition Against 
Domestic Violence, testified before the House Subcommittee on the 
Constitution last July. She said that if a battered woman is 
financially or emotionally dependent on her batterer, she is less 
likely to seek medical assistance if she thinks it may result in the 
criminal prosecution of her batterer.
  The underlying bill contains none of these urgently needed 
protections for battered women. The Murray amendment will give them the 
security and support they need to leave an abusive relationship before 
it's too late.
  According to a GAO report in 1998, between a quarter and a half of 
domestic violence victims report that they lost their job at least 
partly because of domestic violence. A victim who was forced to change 
her name and Social Security number in order to escape her abuser 
testified before the Massachusetts Commission on Domestic Violence. She 
said that when she met with the human resources officers at her 
workplace to explain why she needed help, she lost her job because they 
thought her abuser might attack her in the office and be a safety 
threat to her co-workers too. Victims of domestic violence need job 
stability. They need economic independence in order to leave their 
abuser.
  Without a viable source of income, victims to often have no way to 
escape from their abusive relationship.
  Senator Murray's amendment helps these victims by guaranteeing them 
access to emergency leave to obtain medical attention, counseling or 
other services without fear of losing their job. It provides 
unemployment compensation. It supports the specific training for 
medical providers to recognize the signs of abuse, so that frightened 
women who arrive in the emergency room with tell-tale bruises will know 
that help is available and will be more likely to reveal and seek the 
further support they recall is available.
  It will ensure that children who witness violence in the home will 
receive the help they need in order to break the tragic cycle of 
violence before it consumes the next generation in their families too.
  We need laws that genuinely protect women in all of these ways, as 
Senator Murray's amendment will do. And it does so without undermining 
a woman's fundamental right to choose.
  The Murray amendment provides long and overdue support to victims, 
employers, public health professionals and families to combat violence 
against women, and I urge my colleagues to support it.
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from Ohio.
  Mr. DeWINE. I think we are about ready to close this out.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, if my colleagues on the other side are 
going to yield back, I will take a couple of minutes to wrap up. I know 
my colleagues want to get to the vote and final passage, so I will take 
only a few minutes to end the debate on this amendment.
  I have listened carefully to the other side. They raised concerns 
about the tax credit side of it, and the budget point of order. I asked 
unanimous consent to send an amendment to the desk to at least move the 
other parts of the bill forward without the objectionable part and they 
refused. That says to me that, despite the rhetoric we have heard from 
the other side, they are not very willing to do something truly about 
preventing domestic violence.
  I have heard my colleagues on the other side of the aisle say the 
reality of this place is that if this amendment gets added that it will 
kill the bill. I have been in the Senate almost 12 years and I know the 
reality of this place is when Members believe in something and want to 
solve a problem we can move mountains to get it done.
  To the millions of women across this country who have been victims of 
domestic violence, what they are going to see on the Senate floor today 
is Senators being allowed the opportunity to say whether they are 
actually going to do something to prevent domestic violence or if 
Senators are only willing to deal with domestic violence after the 
woman has died.
  I believe we have the responsibility to do everything we can to 
prevent domestic violence. I hope the bill Senators are putting forward 
today never has to be used because we have prevented violence, but the 
fact is they are going to prevent us today from offering an amendment 
that would preclude the underlying bill from ever having to be used. I 
think that is a tragedy. I think it is a tragedy for the Senate. I 
think it is a tragedy for the country. I certainly think it is a 
tragedy for women who face abuse every single day.
  Two million women are assaulted every year. I introduced this bill 
with my colleague Senator Paul Wellstone 3 years ago. We introduced it 
in three consecutive Congresses and the other side has not allowed us 
to bring it forward. I keep hearing that we have not had hearings on 
it. Well, we would love to have hearings on it. We would love to move 
forward, but it is always said that the time is never right. That is 
certainly something victims of abuse hear far too often.
  This bill simply allows women the time to be able to go to court to 
get a court order to prevent their abuser from tracking them down and 
killing them. It allows them the ability to make sure that children who 
have seen domestic violence get the kind of help they need so they do 
not create a cycle of violence in their lives, which we know happens 
too often. It makes sure we offer health care to victims of domestic 
violence. These are victims who are still alive and need help. It makes 
sure our health care providers screen for domestic violence so we do 
not end up with murdered victims every single day. Not relevant? The 
Chamber of Commerce says this is unrelated? How can anyone look in the 
eye a woman who has been abused by a batterer and tell her we are not 
going to help you until you are gone, until you die? I think that is a 
real tragedy. I am sorry my colleagues on the other side see it that 
way. I don't.
  I have heard rhetoric out here from some of my colleagues--and I do 
want to commend the Senator from Ohio. He has worked on this issue. I 
do want to work with you. But I find it a tragedy today that, again, 
the time is not right. That is what women who are victims of domestic 
violence hear every single day: The time is not right. We can't help 
you today. That is what we are doing today. I find that a tragedy.
  I am going to continue to work on this issue. I know my colleagues on 
the other side are going to defeat it today. I know they are going to 
move on. They have other issues they are going to deal with. But this 
issue is critical. I have been to the shelters; I have looked the women 
in the eyes; I have promised them I will not forget, and I will not.
  This amendment is named after Senator Paul Wellstone. Every one of us 
here know he and Sheila cared and were adamant that we provide victims 
of abuse with the ability to get out of their abusive situation. I hope 
my colleagues will continue to work with us and that the rhetoric we 
have heard on the other side about working with us is not forgotten 
when this bill is gone.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. I commend my colleague again for her dedication to this 
issue, and her passion. But the fact is, as I have said, this bill 
cannot pass through this method. It will have the unintended effect of 
killing the underlying bill. That is why I must come to the floor and 
oppose it.
  Let me yield the remainder of my time to my colleague from Oklahoma.
  Mr. NICKLES. Mr. President, is all time yielded back from our 
colleague from Washington?
  Mrs. MURRAY. Yes.
  The PRESIDING OFFICER. The Senator from Oklahoma.

[[Page 5218]]


  Mr. NICKLES. Mr. President, this bill has a big tax provision that is 
estimated to cost $18.4 billion. Therefore, a budget point of order 
does lie against this amendment.
  Mr. President, I yield the remainder of our time.
  The PRESIDING OFFICER. All time is yielded back.
  Mr. NICKLES. Mr. President, the pending amendment offered by our 
colleague from Washington, Mrs. Murray, decreases revenues and if 
adopted would cause an increase in the deficit in excess of the levels 
permitted in the most recent budget resolution. Therefore, I raise a 
point of order against the amendment pursuant to section 505 of House 
current resolution on the budget for fiscal year 2004.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, pursuant to section 505(b) of H. Con. 
Res. 95 of the 108th Congress, I move to waive the Budget Act.
  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 motion. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
is necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 46, nays 53, as follows:

                      [Rollcall Vote No. 62 Leg.]

                                YEAS--46

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

                                NAYS--53

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

                             NOT VOTING--1

       
     Kerry
       
  The PRESIDING OFFICER. On this question, the yeas are 46, the nays 
are 53. Three-fifths of the Senators duly chosen and sworn not having 
voted in the affirmative, the motion is rejected. The point of order is 
sustained and the amendment falls.
  Mr. NICKLES. I move to reconsider the vote.
  Mr. HATCH. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                            RIGHT TO CHOOSE

  Ms. COLLINS. Mr. President, I rise to engage the distinguished 
Senator from South Carolina, Senator Graham, in a brief colloquy in 
order to make clear the intent behind the language in this bill. It is 
my understanding that there is nothing in the language of this bill 
that would, in any way, undermine the constitutional right of a woman 
to choose to terminate a pregnancy, as expressed by the Supreme Court 
in Roe v. Wade, and subsequent decisions.
  I inquire of the Senator, who is one of the coauthors of the bill, if 
my understanding of the intent behind the language in the bill is 
correct.
  Mr. GRAHAM of South Carolina. The Senator from Maine is correct. 
Nothing in the language of this bill is intended in any way to 
undermine the legal basis for abortion rights, as expressed by the 
Supreme Court in Roe v. Wade, and subsequent decisions.
  Based on my extensive experience as a prosecutor in the U.S. Air 
Force, this legislation would, however, fill a gap in our Federal laws.
  Ms. COLLINS. Mr. President, it is also my understanding that at least 
27 States have statutes that criminalize the killing of a fetus or an 
``unborn child.'' Am I correct in understanding that there is no legal 
precedent where a court has held that any of these State statues in any 
way undermine abortion rights of a woman, as expressed by the Supreme 
Court in Roe v. Wade, and subsequent decisions?
  Mr. GRAHAM of South Carolina. The Senator from Maine is correct. 
There is no legal precedent where a court has concluded that any of 
these State statutes undermines the legal basis for abortion rights.
  Ms. COLLINS. Mr. President, I have one final inquiry I would like to 
make of my colleague. It is my understanding that the intent behind the 
language of this bill, H.R. 1997, is that this bill, like those State 
laws, not be construed to undermine the legal basis for abortion 
rights.
  Mr. GRAHAM of South Carolina. The Senator from Maine is correct.
  Ms. COLLINS. I thank my colleague for making the intent in this 
respect clear.
  Mr. VOINOVICH. Mr. President, I rise today in strong support of the 
Unborn Victims of Violence Act. I firmly believe that we need this 
legislation to correct the loophole in federal law that currently does 
nothing to criminalize violent acts against unborn children. Sadly, we 
live in a violent world where unborn babies are the victims, intended 
or otherwise, of violent acts. I find this horrifying, and believe that 
all children, born or unborn, are a precious gift and responsibility.
  This is something we have already recognized in Ohio. I am proud to 
say that we got this done on my watch when I was Governor of Ohio. In 
June 1996, I signed legislation making it a crime to injure or kill a 
prenatal child who could survive on his or her own outside the mother's 
womb. We passed this legislation in record time due to public outcry 
over a case in Indian Hill, a suburb of Cincinnati in 1995. Joseph 
Daly's wife and her unborn baby were killed in a car accident when a 
drunk driver hit her car. People were outraged that action could be 
brought on behalf of Mrs. Daly, but not their unborn daughter, who was 
2 weeks away from being born. And people will be outraged.
  Under current Federal law, an individual who commits a Federal crime 
of violence and kills or injures an unborn child cannot be prosecuted 
separately for those violent acts against the unborn child because 
Federal criminal law does not recognize the unborn child as a crime 
victim. Can you imagine? A baby that could be viable outside of its 
mother's womb would not be considered a crime victim? This bill will 
close that gap.
  Under this bill, if an unborn child is injured or killed during the 
commission of a Federal crime of violence, the assailant could be 
charged with a separate offense on behalf of the unborn child. In 29 
States, including Ohio, if a person commits a crime of violence against 
a pregnant woman under State law and kills or injures her unborn child, 
that person can be punished for the violence against both the mother 
and the unborn child. But if a person commits a Federal crime of 
violence against a pregnant woman and injures or kills her unborn baby, 
the death or injury of the unborn child would not be punished as a 
crime.
  This bill extends the protections currently available in 29 States to 
the unborn victims of violent acts committed in violation of Federal 
law. Thus, where a Federal crime of violence has been committed and the 
injury or death of an unborn child results, the perpetrator will be 
held to account for the crime of violence against the unborn child.
  I know some of my colleagues will want to paint this as an abortion 
issue. But, it is important to note that this bill has been drafted 
narrowly to apply

[[Page 5219]]

only where the death or injury to the unborn baby occurs as a result of 
an existing Federal crime. The bill expressly excludes any death or 
injury to an unborn baby caused by abortion, any medical treatment of 
the mother, or an act of the mother herself.
  As I stated before, we live in a violent world where unborn babies 
are the victims, intended or otherwise, of violent acts. And these 
babies, the smallest and most helpless victims, deserve justice, too. 
We must pass this legislation and take a stand against crimes committed 
against women and children. I therefore ask my colleagues to support 
this very important legislation.
  Mr. BOND. Mr. President, I rise today to express my support for the 
Unborn Victims of Violence Act.
  Any pregnant woman will tell you that all she wants is for her baby 
to be born healthy. A pregnant mother can take her vitamins, follow the 
instructions of her doctor, and do everything in her power to deliver a 
healthy baby. But, no amount of prenatal care can protect her unborn 
child from the hands of a violent criminal.
  This question before us is simply--when a violent crime is committed 
against a pregnant woman--is there one victim or two? Pregnant women 
who have been harmed by criminal violence and their families know that 
there are two victims.
  In a letter to the sponsors of this bill, the family of Laci and 
Conner Peterson, whose lives were brutally ended, requested that the 
bill before us today be referred to as ``Laci and Conner's Law in their 
memory.'' The Peterson family can, better than any of us, express the 
impact of this terrible loss. They wrote, ``As the family of Laci 
Peterson and her unborn son, Conner, this bill is very close to our 
hearts. We have not only lost our future with our daughter and sister, 
but with our grandson and nephew as well.'' No one can tell the 
Peterson family that there was only one victim. The Peterson family 
mourns for two lives that were brutally ended. There is no question 
that the criminal responsible should be accountable for the loss of 
both lives.
  When pregnant women suffer at the hands of violent criminals I urge 
my colleagues to protect both victims under Federal law.
  Mr. ALLEN. Mr. President, I rise today in support of the Unborn 
Victims of Violence Act, or what many individuals refer to as ``Laci 
and Conner's Law.''
  We have all heard the tragic story of Laci and Conner Peterson; Laci, 
8 months pregnant with her unborn son Conner, were viciously murdered 
at the hands of a killer. Regrettably, Laci and Conner's story is only 
one of many instances where a woman is harmed and may not only lose her 
life but the life of her unborn child.
  In my Commonwealth of Virginia, we had a similar tragic situation 
occur in April of 2002. Ronda Robinson was maliciously gunned down in 
her Lynchburg home, while her two daughters watched in terror. Like 
Laci, Ronda was in her third trimester when she and her unborn child 
had their lives taken.
  At that time, Virginia did not have a fetal homicide law on the 
books, and the Commonwealth was unable to bring a homicide charge 
against the murderer for the killing of Ronda's unborn child.
  Unfortunately, the situation in Virginia and many other States 
remains the same. If a mother survives an assault, but loses her unborn 
child, the law currently does not recognize any loss of any human life 
at all.
  However, I am pleased that the Virginia General Assembly has taken 
steps to correct this wrong. This year, the Virginia General Assembly 
overwhelmingly passed legislation that would hold an individual 
accountable who, ``unlawfully, willfully, deliberately, maliciously, 
and with premeditation kills the fetus of another.'' Twenty-Nine 
senators or 72 percent of the senate and 77 members of the house of 
delegates or 77 percent of the house supported this legislation.
  While this legislation has not yet been signed into law, I am hopeful 
that Virginia will follow the lead of the 29 other States that have 
passed this important and meaningful legislation.
  I have the same optimism for the Unborn Victims of Violence Act. We 
have a chance to hear the voice of the voiceless and bring fairness to 
a system that has essentially told hundreds of women and their 
families, their unborn child never existed.
  I have been blessed with four great gifts, my loving wife and my 
three wonderful children. I have witnessed my children grow and live 
healthy and happy lives. I see what my children have accomplished so 
far in their lives and I am eager to see what other great 
accomplishments will follow. But many individuals are unable to witness 
the birth and growth of their child because of a violent criminal act.
  Throughout my tenure in public service, whether it was in the 
Virginia House of Delegates, U.S. House of Representatives, Governor's 
office, or now in the U.S. Senate, I have always tried to be tough on 
criminals. I have always believed in the principle that if you commit a 
crime, you should be punished.
  The Unborn Victims of Violence Act closely upholds my beliefs by 
making criminals accountable for their actions. Under current Federal 
law, an individual who commits a Federal crime of violence and kills or 
injures an unborn child cannot be prosecuted for those violent acts 
against the unborn child. The Unborn Victims of Violence Act seeks to 
rectify this situation and close that loophole.
  Under this bill, if an unborn child is injured or killed during the 
commission of an already-defined Federal crime of violence, then the 
assailant could be charged with a separate offense for the second, 
enhanced crime upon the unborn child.
  Opponents of the Unborn Victims of Violence Act contend that this 
will hamper a woman's right to choose and constitute an attack on Roe 
v. Wade. This is simply false. In fact, this legislation explicitly 
provides that it does not apply to any abortion to which a woman has 
consented, to any act of the mother herself, legal or illegal, or to 
any form of medical treatment.
  In addition, opponents have brought numerous challenges against State 
unborn victims laws, based on Roe and other constitutional arguments, 
and all of these challenges have been rejected by State and Federal 
courts.
  I have always been a strong supporter of rights of the people in the 
States to determine their laws so long as it does not harm interstate 
commerce or our Constitution. This bill safeguards those States' laws. 
This legislation does not supersede State unborn victims laws, nor does 
it impose such a law in a State that does not have one on the books. 
The Unborn Victims of Violence Act merely applies to an already defined 
set of Federal crimes.
  The bottom line is that criminals must be held accountable for their 
actions. The Unborn Victims of Violence Act ensures that justice is 
sought and available for the totality of the violent murderous act. 
This is good, solid legislation that is tough on crime, appropriately 
punishes criminals, and meets the ends of justice desired by law-
abiding citizens.
  I urge my colleagues to support this bill so that we can send it to 
President Bush for his signature and ensure that justice will be 
served.
  Mr. DODD. Mr. President, I share the outrage of every other Member in 
this Senate over the heinous and violent crimes that are committed 
against over 300,000 women a year. These crimes are especially horrific 
when the perpetrator knows his victim and knows her to be pregnant.
  Today, a significant number of States already allow stricter 
penalties for crimes of violence committed against pregnant women. At 
the Federal level, I believe that it is appropriate and necessary to 
conform our Federal laws to the statutes of these States.
  Particularly heinous crimes ought to receive particularly harsh 
penalties. And for that reason, I strongly supported the Feinstein 
amendment during today's debate. Like the underlying legislation, the 
Feinstein amendment

[[Page 5220]]

would have allowed Federal prosecutors to ``double-charge'' those 
individuals convicted of crimes against pregnant women, and would have 
set forth severe and just punishments for those crimes. Unfortunately, 
this amendment was defeated.
  I also realize that punishing individuals for crimes against women, 
both pregnant and not, is only one step toward reducing domestic 
violence. We must do more as a society not only to punish but to 
prevent domestic violence. For this reason, I strongly supported the 
Murray amendment today. This amendment would have protected the 
economic security of women who are victims of domestic violence by 
allowing them to keep their jobs if and when they needed to take time 
off to attend court and receive medical care related to acts of 
domestic violence committed against them. It would have also authorized 
important new initiatives for the establishment of family violence 
research and education centers to develop, implement, disseminate, and 
evaluate family violence prevention and early intervention services and 
strategies. Again, I was disappointed when this amendment failed.
  We have come a long way from the days when domestic violence was 
considered a private matter. Major initiatives like the Violence 
Against Women Act have offered protection for women while treating 
domestic violence for what it is--crimes committed by cowards. However, 
as the continued prevalence of domestic violence cases show, we have a 
long way to go.
  Regrettably, the underlying bill that was before us today is not 
principally focused on curbing violence and punishing those individuals 
found guilty of committing these heinous crimes. Rather, the 
legislation is focused on advocating a cause about which its proponents 
feel very deeply, but a cause that a majority of Americans do not 
share--the cause of eroding and ultimately ending women's right to 
choose.
  I happen to support a woman's right to choose as set forth in the Roe 
vs. Wade decision. And I find it regrettable and inappropriate that 
legislation that ought to be focused on eroding the number of heinous 
crimes committed against all women focuses instead on eroding a woman's 
right to choose. For this reason, while I supported both the Feinstein 
and Murray amendments, I am unable to support the underlying bill.
  For those who wish to advocate a cause not related to the issue of 
domestic violence, I urge them to advocate it in the open and not by 
stealth. But for those who want to reduce further the number and 
severity of crimes against women, I urge them to continue working with 
people like Senators Feinstein and Murray. Working together, I am 
confident we can make a substantial difference in the lives of hundreds 
of thousands of women across the country.
  Mr. SMITH. Mr. President, I rise today to speak about the Unborn 
Victims of Violence Act and our duty to protect the most innocent among 
us.
  A woman becomes a mother the moment she hears she is with child. From 
that time forward, her primary concern is providing for and protecting 
the new life within. Our concerns should be no different.
  It is horrifying that an expectant mother could be the target of 
violence--yet it happens. And when such a crime is committed, there is 
not one victim, but two. Recognizing this fact in Federal law not only 
fulfills our commitment to mothers and the unborn, it also serves as a 
deterrent to crimes against the innocent.
  Under the laws of 29 States, if a person commits a violent crime 
against a pregnant woman and seriously injures or kills her unborn 
child, that assailant can be punished for both the violence against the 
mother and the unborn child. This is not the case in federal law. A 
perpetrator who commits a violent crime under Federal jurisdiction and 
kills an unborn child cannot be prosecuted for that death. This is 
wrong.
  Today, I am proud to join my colleagues in voting in favor of the 
Unborn Victims of Violence Act. Under this legislation, an assailant 
who commits a Federal crime and kills or injures an unborn child can be 
charged with a separate offense on behalf of the child. Passage of this 
bill sends an immediate message to criminals that they will be punished 
for violence against women and their unborn children.
  This legislation and the ban on partial-birth abortion enacted last 
year further protect the sanctity of life. Like the ban on partial-
birth abortions, this bill is supported by the vast majority of 
Americans who recognize it as a reasonable stop we can take to protect 
women and children.
  I look forward to President Bush signing this legislation into law. 
It will show criminals that they can no longer act with impunity and it 
will tell expectant parents what they already know--that their unborn 
children have value, too.
  Mr. DeWINE. I am prepared to yield back our time on the general 
debate.
  The PRESIDING OFFICER. There is still time on the underlying bill.
  The minority leader.
  Mr. DASCHLE. We yield back on the minority side.
  The PRESIDING OFFICER. The clerk will read the bill for the third 
time.
  The bill was ordered to a third reading and was read the third time.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, for the information of our colleagues, the 
next vote is the last vote of the week. We will begin consideration of 
welfare reauthorization on Monday. There will be no rollcall votes on 
Monday. Any votes ordered will be stacked on Tuesday of next week.
  Mr. DOMENICI. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The PRESIDING OFFICER. Both sides having yielded back their time and 
the bill having been read the third time, the question is, Shall the 
bill pass?
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from New Hampshire (Mr. 
Gregg) is necessarily absent.
  The PRESIDING OFFICER (Mr. Coleman). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 61, nays 38, as follows:

                      [Rollcall Vote No. 63 Leg.]

                                YEAS--61

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

                                NAYS--38

     Akaka
     Baucus
     Bayh
     Biden
     Boxer
     Byrd
     Cantwell
     Chafee
     Clinton
     Corzine
     Dodd
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Reed (RI)
     Sarbanes
     Schumer
     Snowe
     Stabenow
     Wyden

                             NOT VOTING--1

       
     Gregg
       
  The bill (H.R. 1997) was passed.
  Mr. SPECTER. Mr. President, I support enhanced penalties for criminal 
acts of violence against pregnant women.
  My concern with the DeWine bill is that it unnecessarily seeks to 
weigh in on the abortion controversy with the definition of ``unborn 
child'' and ``child in utero.''
  I voted for the Feinstein amendment because it accomplishes the 
substantive criminal law objectives of the DeWine bill without raising 
a potential

[[Page 5221]]

issue on a possible challenge to Roe v. Wade.
  When the Feinstein Amendment lost, I voted for final passage of the 
DeWine Bill in order to impose appropriate double sanctions for the 
murder or assault of a pregnant woman that interferes with a pregnancy.

                          ____________________