[House Report 108-288]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    108-288
======================================================================
 
                 PARTIAL-BIRTH ABORTION BAN ACT OF 2003

                                _______
                                

               September 30, 2003.--Ordered to be printed

                                _______
                                

  Mr. Sensenbrenner, from the committee of conference, submitted the 
                               following

                           CONFERENCE REPORT

                          [To accompany S. 3]

      The committee of conference on the disagreeing votes of 
the two Houses on the amendment of the House to the bill (S. 
3), to prohibit the procedure commonly known as partial-birth 
abortion, having met, after full and free conference, have 
agreed to recommend and do recommend to their respective Houses 
as follows:
      That the Senate recede from its disagreement to the 
amendment of the House and agree to the same with an amendment 
as follows:
      In lieu of the matter proposed to be inserted by the 
House amendment, insert the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Partial-Birth Abortion Ban 
Act of 2003''.

SEC. 2. FINDINGS.

    The Congress finds and declares the following:
            (1) A moral, medical, and ethical consensus exists 
        that the practice of performing a partial-birth 
        abortion--an abortion in which a physician deliberately 
        and intentionally vaginally delivers a living, unborn 
        child's body until either the entire baby's head is 
        outside the body of the mother, or any part of the 
        baby's trunk past the navel is outside the body of the 
        mother and only the head remains inside the womb, for 
        the purpose of performing an overt act (usually the 
        puncturing of the back of the child's skull and 
        removing the baby's brains) that the person knows will 
        kill the partially delivered infant, performs this act, 
        and then completes delivery of the dead infant--is a 
        gruesome and inhumane procedure that is never medically 
        necessary and should be prohibited.
            (2) Rather than being an abortion procedure that is 
        embraced by the medical community, particularly among 
        physicians who routinely perform other abortion 
        procedures, partial-birth abortion remains a disfavored 
        procedure that is not only unnecessary to preserve the 
        health of the mother, but in fact poses serious risks 
        to the long-term health of women and in some 
        circumstances, their lives. As a result, at least 27 
        States banned the procedure as did the United States 
        Congress which voted to ban the procedure during the 
        104th, 105th, and 106th Congresses.
            (3) In Stenberg v. Carhart, 530 U.S. 914, 932 
        (2000), the United States Supreme Court opined ``that 
        significant medical authority supports the proposition 
        that in some circumstances, [partial birth abortion] 
        would be the safest procedure'' for pregnant women who 
        wish to undergo an abortion. Thus, the Court struck 
        down the State of Nebraska's ban on partial-birth 
        abortion procedures, concluding that it placed an 
        ``undue burden'' on women seeking abortions because it 
        failed to include an exception for partial-birth 
        abortions deemed necessary to preserve the ``health'' 
        of the mother.
            (4) In reaching this conclusion, the Court deferred 
        to the Federal district court's factual findings that 
        the partial-birth abortion procedure was statistically 
        and medically as safe as, and in many circumstances 
        safer than, alternative abortion procedures.
            (5) However, substantial evidence presented at the 
        Stenberg trial and overwhelming evidence presented and 
        compiled at extensive Congressional hearings, much of 
        which was compiled after the district court hearing in 
        Stenberg, and thus not included in the Stenberg trial 
        record, demonstrates that a partial-birth abortion is 
        never necessary to preserve the health of a woman, 
        poses significant health risks to a woman upon whom the 
        procedure is performed and is outside the standard of 
        medical care.
            (6) Despite the dearth of evidence in the Stenberg 
        trial court record supporting the district court's 
        findings, the United States Court of Appeals for the 
        Eighth Circuit and the Supreme Court refused to set 
        aside the district court's factual findings because, 
        under the applicable standard of appellate review, they 
        were not ``clearly erroneous''. A finding of fact is 
        clearly erroneous ``when although there is evidence to 
        support it, the reviewing court on the entire evidence 
        is left with the definite and firm conviction that a 
        mistake has been committed''. Anderson v. City of 
        Bessemer City, North Carolina, 470 U.S. 564, 573 
        (1985). Under this standard, ``if the district court's 
        account of the evidence is plausible in light of the 
        record viewed in its entirety, the court of appeals may 
        not reverse it even though convinced that had it been 
        sitting as the trier of fact, it would have weighed the 
        evidence differently''. Id. at 574.
            (7) Thus, in Stenberg, the United States Supreme 
        Court was required to accept the very questionable 
        findings issued by the district court judge--the effect 
        of which was to render null and void the reasoned 
        factual findings and policy determinations of the 
        United States Congress and at least 27 State 
        legislatures.
            (8) However, under well-settled Supreme Court 
        jurisprudence, the United States Congress is not bound 
        to accept the same factual findings that the Supreme 
        Court was bound to accept in Stenberg under the 
        ``clearly erroneous'' standard. Rather, the United 
        States Congress is entitled to reach its own factual 
        findings--findings that the Supreme Court accords great 
        deference--and to enact legislation based upon these 
        findings so long as it seeks to pursue a legitimate 
        interest that is within the scope of the Constitution, 
        and draws reasonable inferences based upon substantial 
        evidence.
            (9) In Katzenbach v. Morgan, 384 U.S. 641 (1966), 
        the Supreme Court articulated its highlydeferential 
review of Congressional factual findings when it addressed the 
constitutionality of section 4(e) of the Voting Rights Act of 1965. 
Regarding Congress' factual determination that section 4(e) would 
assist the Puerto Rican community in ``gaining nondiscriminatory 
treatment in public services,'' the Court stated that ``[i]t was for 
Congress, as the branch that made this judgment, to assess and weigh 
the various conflicting considerations * * *. It is not for us to 
review the congressional resolution of these factors. It is enough that 
we be able to perceive a basis upon which the Congress might resolve 
the conflict as it did. There plainly was such a basis to support 
section 4(e) in the application in question in this case.''. Id. at 
653.
            (10) Katzenbach's highly deferential review of 
        Congress' factual conclusions was relied upon by the 
        United States District Court for the District of 
        Columbia when it upheld the ``bail-out'' provisions of 
        the Voting Rights Act of 1965, (42 U.S.C. 1973c), 
        stating that ``congressional fact finding, to which we 
        are inclined to pay great deference, strengthens the 
        inference that, in those jurisdictions covered by the 
        Act, state actions discriminatory in effect are 
        discriminatory in purpose''. City of Rome, Georgia v. 
        U.S., 472 F. Supp. 221 (D.D.C. 1979) aff'd City of 
        Rome, Georgia v. U.S., 446 U.S. 156 (1980).
            (11) The Court continued its practice of deferring 
        to congressional factual findings in reviewing the 
        constitutionality of the must-carry provisions of the 
        Cable Television Consumer Protection and Competition 
        Act of 1992. See Turner Broadcasting System, Inc. v. 
        Federal Communications Commission, 512 U.S. 622 (1994) 
        (Turner I) and Turner Broadcasting System, Inc. v. 
        Federal Communications Commission, 520 U.S. 180 (1997) 
        (Turner II). At issue in the Turner cases was Congress' 
        legislative finding that, absent mandatory carriage 
        rules, the continued viability of local broadcast 
        television would be ``seriously jeopardized''. The 
        Turner I Court recognized that as an institution, 
        ``Congress is far better equipped than the judiciary to 
        `amass and evaluate the vast amounts of data' bearing 
        upon an issue as complex and dynamic as that presented 
        here''. 512 U.S. at 665-66. Although the Court 
        recognized that ``the deference afforded to legislative 
        findings does `not foreclose our independent judgment 
        of the facts bearing on an issue of constitutional 
        law,' '' its ``obligation to exercise independent 
        judgment when First Amendment rights are implicated is 
        not a license to reweigh the evidence de novo, or to 
        replace Congress' factual predictions with our own. 
        Rather, it is to assure that, in formulating its 
        judgments, Congress has drawn reasonable inferences 
        based on substantial evidence.'' Id. at 666.
            (12) Three years later in Turner II, the Court 
        upheld the ``must-carry'' provisions based upon 
        Congress' findings, stating the Court's ``sole 
        obligation is `to assure that, in formulating its 
        judgments, Congress has drawn reasonable inferences 
        based on substantial evidence.' '' 520 U.S. at 195. 
        Citing its ruling in Turner I, the Court reiterated 
        that ``[w]e owe Congress' findings deference in part 
        because the institution `is far better equipped than 
        the judiciary to ``amass and evaluate the vast amounts 
        of data'' bearing upon' legislative questions,'' id. at 
        195, and added that it ``owe[d] Congress' findings an 
        additional measure of deference out of respect for its 
        authority to exercise the legislative power.'' Id. at 
        196.
            (13) There exists substantial record evidence upon 
        which Congress has reached its conclusion that a ban on 
        partial-birth abortion is not required to contain a 
        ``health'' exception, because the facts indicate that a 
        partial-birth abortion is never necessary to preserve 
        the health of a woman, poses serious risks to a woman's 
        health, and lies outside the standard of medical care. 
        Congress was informed by extensive hearings held during 
        the 104th, 105th, 107th, and 108th Congresses and 
        passed a ban on partial-birth abortion in the 104th, 
        105th, and 106th Congresses. These findings reflect the 
        very informed judgment of the Congress that a partial-
        birth abortion is never necessary to preserve the 
        health of a woman, poses serious risks to a woman's 
        health, and lies outside the standard of medical care, 
        and should, therefore, be banned.
            (14) Pursuant to the testimony received during 
        extensive legislative hearings during the 104th, 105th, 
        107th, and 108th Congresses, Congress finds and 
        declares that:
                    (A) Partial-birth abortion poses serious 
                risks to the health of a woman undergoing the 
                procedure. Those risks include, among other 
                things: an increase in a woman's risk of 
                suffering from cervical incompetence, a result 
                of cervical dilation making it difficult or 
                impossible for a woman to successfully carry a 
                subsequent pregnancy to term; an increased risk 
                of uterine rupture, abruption, amniotic fluid 
                embolus, and trauma to the uterus as a result 
                ofconverting the child to a footling breech 
position, a procedure which, according to a leading obstetrics 
textbook, ``there are very few, if any, indications for * * * other 
than for delivery of a second twin''; and a risk of lacerations and 
secondary hemorrhaging due to the doctor blindly forcing a sharp 
instrument into the base of the unborn child's skull while he or she is 
lodged in the birth canal, an act which could result in severe 
bleeding, brings with it the threat of shock, and could ultimately 
result in maternal death.
                    (B) There is no credible medical evidence 
                that partial-birth abortions are safe or are 
                safer than other abortion procedures. No 
                controlled studies of partial-birth abortions 
                have been conducted nor have any comparative 
                studies been conducted to demonstrate its 
                safety and efficacy compared to other abortion 
                methods. Furthermore, there have been no 
                articles published in peer-reviewed journals 
                that establish that partial-birth abortions are 
                superior in any way to established abortion 
                procedures. Indeed, unlike other more commonly 
                used abortion procedures, there are currently 
                no medical schools that provide instruction on 
                abortions that include the instruction in 
                partial-birth abortions in their curriculum.
                    (C) A prominent medical association has 
                concluded that partial-birth abortion is ``not 
                an accepted medical practice'', that it has 
                ``never been subject to even a minimal amount 
                of the normal medical practice development,'' 
                that ``the relative advantages and 
                disadvantages of the procedure in specific 
                circumstances remain unknown,'' and that 
                ``there is no consensus among obstetricians 
                about its use''. The association has further 
                noted that partial-birth abortion is broadly 
                disfavored by both medical experts and the 
                public, is ``ethically wrong,'' and ``is never 
                the only appropriate procedure''.
                    (D) Neither the plaintiff in Stenberg v. 
                Carhart, nor the experts who testified on his 
                behalf, have identified a single circumstance 
                during which a partial-birth abortion was 
                necessary to preserve the health of a woman.
                    (E) The physician credited with developing 
                the partial-birth abortion procedure has 
                testified that he has never encountered a 
                situation where a partial-birth abortion was 
                medically necessary to achieve the desired 
                outcome and, thus, is never medically necessary 
                to preserve the health of a woman.
                    (F) A ban on the partial-birth abortion 
                procedure will therefore advance the health 
                interests of pregnant women seeking to 
                terminate a pregnancy.
                    (G) In light of this overwhelming evidence, 
                Congress and the States have a compelling 
                interest in prohibiting partial-birth 
                abortions. In addition to promoting maternal 
                health, such a prohibition will draw a bright 
                line that clearly distinguishes abortion and 
                infanticide, that preserves the integrity of 
                the medical profession, and promotes respect 
                for human life.
                    (H) Based upon Roe v. Wade, 410 U.S. 113 
                (1973) and Planned Parenthood v. Casey, 505 
                U.S. 833 (1992), a governmental interest in 
                protecting the life of a child during the 
                delivery process arises by virtue of the fact 
                that during a partial-birth abortion, labor is 
                induced and the birth process has begun. This 
                distinction was recognized in Roe when the 
                Court noted, without comment, that the Texas 
                parturition statute, which prohibited one from 
                killing a child ``in a state of being born and 
                before actual birth,'' was not under attack. 
                This interest becomes compelling as the child 
                emerges from the maternal body. A child that is 
                completely born is a full, legal person 
                entitled to constitutional protections afforded 
                a ``person'' under the United States 
                Constitution. Partial-birth abortions involve 
                the killing of a child that is in the process, 
                in fact mere inches away from, becoming a 
                ``person''. Thus, the government has a 
                heightened interest in protecting the life of 
                the partially-born child.
                    (I) This, too, has not gone unnoticed in 
                the medical community, where a prominent 
                medical association has recognized that 
                partial-birth abortions are ``ethically 
                different from other destructive abortion 
                techniques because the fetus, normally twenty 
                weeks or longer in gestation, is killed outside 
                of the womb''. According to this medical 
                association, the `` `partial birth' gives the 
                fetus an autonomy which separates it from the 
                right of the woman to choose treatments for her 
                own body''.
                    (J) Partial-birth abortion also confuses 
                the medical, legal, and ethical duties of 
                physicians to preserve and promote life, as the 
                physician acts directly against the physical 
                life of a child, whom he or she had just 
                delivered, all but the head, out of the womb, 
                in order to end that life. Partial-birth 
                abortion thus appropriates the terminology and 
                techniques used by obstetricians in the 
                delivery of living children--obstetricians who 
                preserve and protect the life of the mother and 
                the child--and instead uses those techniques to 
                end the life of the partially-born child.
                    (K) Thus, by aborting a child in the manner 
                that purposefully seeks to kill the child after 
                he or she has begun the process of birth, 
                partial-birth abortion undermines the public's 
                perception of the appropriate role of a 
                physician during the delivery process, and 
                perverts a process during which life is brought 
                into the world, in order to destroy a 
                partially-born child.
                    (L) The gruesome and inhumane nature of the 
                partial-birth abortion procedure and its 
                disturbing similarity to the killing of a 
                newborn infant promotes a complete disregard 
                for infant human life that can only be 
                countered by a prohibition of the procedure.
                    (M) The vast majority of babies killed 
                during partial-birth abortions are alive until 
                the end of the procedure. It is a medical fact, 
                however, that unborn infants at this stage can 
                feel pain when subjected to painful stimuli and 
                that their perception of this pain is even more 
                intense than that of newborn infants and older 
                children when subjected to the same stimuli. 
                Thus, during a partial-birth abortion 
                procedure, the child will fully experience the 
                pain associated with piercing his or her skull 
                and sucking out his or her brain.
                    (N) Implicitly approving such a brutal and 
                inhumane procedure by choosing not to prohibit 
                it will further coarsen society to the humanity 
                of not only newborns, but all vulnerable and 
                innocent human life, making it increasingly 
                difficult to protect such life. Thus, Congress 
                has a compelling interest in acting--indeed it 
                must act--to prohibit this inhumane procedure.
                    (O) For these reasons, Congress finds that 
                partial-birth abortion is never medically 
                indicated to preserve the health of the mother; 
                is in fact unrecognized as a valid abortion 
                procedure by the mainstream medical community; 
                poses additional health risks to the mother; 
                blurs the line between abortion and infanticide 
                in the killing of a partially-born child just 
                inches from birth; and confuses the role of the 
                physician in childbirth and should, therefore, 
                be banned.

SEC. 3. PROHIBITION ON PARTIAL-BIRTH ABORTIONS.

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

                 ``CHAPTER 74--PARTIAL-BIRTH ABORTIONS

``Sec.
``1531. Partial-birth abortions prohibited.

``Sec. 1531. Partial-birth abortions prohibited

    ``(a) Any physician who, in or affecting interstate or 
foreign commerce, knowingly performs a partial-birth abortion 
and thereby kills a human fetus shall be fined under this title 
or imprisoned not more than 2 years, or both. This subsection 
does not apply to a partial-birth abortion that is necessary to 
save the life of a mother whose life is endangered by a 
physical disorder, physical illness, or physical injury, 
including a life-endangering physical condition caused by or 
arising from the pregnancy itself. This subsection takes effect 
1 day after the enactment.
    ``(b) As used in this section--
            ``(1) the term `partial-birth abortion' means an 
        abortion in which the person performing the abortion--
                    ``(A) deliberately and intentionally 
                vaginally delivers a living fetus until, in the 
                case of a head-first presentation, the entire 
                fetal head is outside the body of the mother, 
                or, in the case of breech presentation, any 
                part of the fetal trunk past the navel is 
                outside the body of the mother, for the purpose 
                of performing an overt act that the person 
                knows will kill the partially delivered living 
                fetus; and
                    ``(B) performs the overt act, other than 
                completion of delivery, that kills the 
                partially delivered living fetus; and
            ``(2) the term `physician' means a doctor of 
        medicine or osteopathy legally authorized to practice 
        medicine and surgery by the State in which the doctor 
        performs such activity, or any other individual legally 
        authorized by the State to perform abortions: Provided, 
        however, That any individual who is not a physician or 
        not otherwise legally authorized by the State to 
        perform abortions, but who nevertheless directly 
        performs a partial-birth abortion, shall be subject to 
        the provisions of this section.
    ``(c)(1) The father, if married to the mother at the time 
she receives a partial-birth abortion procedure, and if the 
mother has not attained the age of 18 years at the time of the 
abortion, the maternal grandparents of the fetus, may in a 
civil action obtain appropriate relief, unless the pregnancy 
resulted from the plaintiff's criminal conduct or the plaintiff 
consented to the abortion.
    ``(2) Such relief shall include--
                    ``(A) money damages for all injuries, 
                psychological and physical, occasioned by the 
                violation of this section; and
                    ``(B) statutory damages equal to three 
                times the cost of the partial-birth abortion.
    ``(d)(1) A defendant accused of an offense under this 
section may seek a hearing before the State Medical Board on 
whether the physician's conduct was necessary to save the life 
of the mother whose life was endangered by a physical disorder, 
physical illness, or physical injury, including a life-
endangering physical condition caused by or arising from the 
pregnancy itself.
    ``(2) The findings on that issue are admissible on that 
issue at the trial of the defendant. Upon a motion of the 
defendant, the court shall delay the beginning of the trial for 
not more than 30 days to permit such a hearing to take place.
    ``(e) A woman upon whom a partial-birth abortion is 
performed may not be prosecuted under this section, for a 
conspiracy to violate this section, or for an offense under 
section 2, 3, or 4 of this title based on a violation of this 
section.''.
    (b) Clerical Amendment.--The table of chapters for part I 
of title 18, United States Code, is amended by inserting after 
the item relating to chapter 73 the following new item:
``74. Partial-birth abortions....................................1531''.
    And the House agree to the same.

                                   F. James Sensenbrenner, Jr.,
                                   Henry Hyde,
                                   Steve Chabot,
                                 Managers on the Part of the House.

                                   Orrin Hatch,
                                   Rick Santorum,
                                   Mike DeWine,
                                Managers on the Part of the Senate.
       JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE

      The managers on the part of the House and the Senate at 
the conference on the disagreeing votes of the two Houses on 
the amendment of the House to the bill (S. 3), to prohibit the 
procedure commonly known as partial-birth abortion, submit the 
following joint statement to the House and the Senate in 
explanation of the effect of the action agreed upon by the 
managers and recommended in the accompanying conference report:
      The House amendment struck all the Senate bill after the 
enacting clause and inserted a substitute text.
      The Senate recedes from its disagreement to the amendment 
of the House with an amendment that is a substitue for the 
Senate bill and the House amendment. The differences between 
the Senate bill, the House amendment, and the substitute agreed 
to in conference are noted below, except for clerical 
corrections, conforming changes made necessary by agreements 
reached by the conferees, and minor drafting and clarifying 
changes.
Section 1. Short title
      Section 1 of the conference report is identical to 
Section 1 of the House amendment and Section 1 of the Senate 
bill. Section 1 states that the short title of this measure is 
the ``Partial-Birth Abortion Ban Act of 2003.''
Section 2. Findings
      Paragraph (1) in Section 2 of the conference report is 
substantially similar, with clarifications, to paragraph (1) in 
Section 2 of the House passed bill and paragraph (1) in Section 
2 of the Senate passed bill. In paragraph (1) Congress finds 
that a moral, medical, and ethical consensus exists that the 
practice of performing a partial-birth abortion--an abortion in 
which a physician deliberately and intentionally vaginally 
delivers a living, unborn child's body until either the entire 
baby's head is outside the body of the mother, or, any part of 
the baby's trunk past the navel is outside the body of the 
mother and only the head remains inside the womb, for the 
purpose of performing an overt act (usually the puncturing of 
the back of the child's skull and removing the child's brains) 
that the person knows will kill the partially delivered living 
infant, performs this act, and then completes delivery of the 
dead infant--is a gruesome and inhumane procedure that is never 
medically necessary and should be prohibited.
      Paragraph (2) in Section 2 of the conference report is 
identical to paragraph (2) in Section 2 of the House amendment 
and paragraph (2) in Section 2 of the Senate bill. In paragraph 
(2), Congress finds that rather than being an abortion 
procedure that is embraced by the medical community, 
particularly among physicians who routinely perform other 
abortion procedures, partial-birth abortion remains a 
disfavored procedure that is not only unnecessary to preserve 
the health of the mother, but in fact poses serious risks to 
the long-term health of women and in some circumstances, their 
lives. Congress also finds that as a result, at least 27 States 
banned the procedure as did the United States Congress which 
voted to ban the procedure during the 104th, 105th, and 106th 
Congresses.
      Paragraph (3) in Section 2 of the conference report is 
identical to paragraph (3) in Section 2 of the House amendment 
and paragraph (3) in Section 2 of the Senate bill. In paragraph 
(3), Congress finds that in Stenberg v. Carhart, 530 U.S. 914, 
932 (2000), the United States Supreme Court, which did not have 
in front of it the extensive factual record compiled by 
Congress, construed the record in that case to support ``the 
proposition that in some circumstances, [partial-birth 
abortion] would be the safest procedure'' for pregnant women 
who wish to undergo an abortion. Congress also finds that as a 
result of having reached this conclusion the Court struck down 
the State of Nebraska's ban on partial-birth abortion 
procedures, concluding that it failed to include an exception 
for partial-birth abortions deemed necessary to preserve the 
``health'' of the mother, and placed an ``undue burden'' on 
women seeking abortions.
      Paragraph (4) in Section 2 of the conference report is 
identical to paragraph (4) in Section 2 of the House amendment 
and paragraph (4) in Section 2 of the Senate bill. In paragraph 
(4),Congress finds that the Court's decision was based on the 
Federal district court's factual findings that the partial-birth 
abortion procedure was statistically and medically as safe as, and in 
many circumstances safer than, alternative abortion procedures--
findings which are contradicted by Congress's extensive factual record 
presented and compiled during the 104th, 105th, 107th, and 108th 
Congresses.
      Paragraph (5) in Section 2 of the conference report is 
substantially similar, with clarifications, to paragraph (5) in 
Section 2 of the House passed bill and paragraph (5) in Section 
2 of the Senate passed bill. In paragraph (5) Congress finds 
that substantial evidence presented at the Stenberg trial, and 
the overwhelming evidence that was presented and compiled at 
extensive Congressional hearings, much of which was compiled 
after the district court hearing in Stenberg, and thus not 
included in the Stenberg trial record, demonstrates that a 
partial-birth abortion is never necessary to preserve the 
health of a woman, poses significant health risks to a woman 
upon whom the procedure is performed, and is outside of the 
standard of medical care.
      Paragraph (6) in Section 2 of the conference report is 
identical to paragraph (6) in Section 2 of the House amendment 
and paragraph (6) in Section 2 of the Senate bill. In paragraph 
(6), Congress finds that despite the dearth of evidence in the 
Stenberg trial court record supporting the district court's 
findings, the United States Court of Appeals for the Eighth 
Circuit and the Supreme Court refused to set aside the district 
court's factual findings because, under the applicable standard 
of appellate review, they were not ``clearly erroneous.'' 
Congress also finds that a finding of fact is clearly erroneous 
``when although there is evidence to support it, the reviewing 
court on the entire evidence is left with the definite and firm 
conviction that a mistake has been committed'' Anderson v. City 
of Bessemer, North Carolina, 470 U.S. 564, 573 (1985). Congress 
also finds that under this standard, ``if the district court's 
account of the evidence is plausible in light of the record 
viewed in its entirety, the court of appeals may not reverse it 
even though convinced that had it been sitting as the trier of 
fact, it would have weighed the evidence differently.'' Id. at 
574.
      Paragraph (7) in Section 2 of the conference report is 
identical to paragraph (7) in Section 2 of the House amendment 
and paragraph (7) in Section 2 of the Senate bill. In paragraph 
(7), Congress finds that in Stenberg, the United States Supreme 
Court was required to accept the very questionable findings 
issued by the district court judge--the effect of which was to 
render null and void the reasoned factual findings and policy 
determinations of the United States Congress and at least 27 
State legislatures.
      Paragraph (8) in Section 2 of the conference report is 
identical to paragraph (8) in Section 2 of the House amendment 
and paragraph (8) in Section 2 of the Senate bill. In paragraph 
(8), Congress finds that under well-settled Supreme Court 
jurisprudence, it is not bound to accept the same factual 
findings that the Supreme Court was bound to accept in Stenberg 
under the ``clearly erroneous'' standard. Congress also finds 
that it is entitled to reach its own factual findings--findings 
that the Supreme Court accords great deference--and to enact 
legislation based upon these findings so long as it seeks to 
pursue a legitimate interest that is within the scope of the 
Constitution, and draws reasonable inferences based upon 
substantial evidence.
      Paragraph (9) in Section 2 of the conference report is 
identical to paragraph (9) in Section 2 of the House amendment 
and paragraph (9) in Section 2 of the Senate bill. In paragraph 
(9), Congress finds that in Katzenbach v. Morgan, 384 U.S. 641 
(1966), the Supreme Court articulated its highly deferential 
review of Congressional factual findings when it addressed the 
constitutionality of section 4(e) of the Voting Rights Act of 
1965. Regarding Congress' factual determination that section 
4(e) would assist the Puerto Rican community in ``gaining 
nondiscriminatory treatment in public services,'' the Court 
stated that ``[i]t was for Congress, as the branch that made 
this judgment, to assess and weigh the various conflicting 
considerations. * * * It is not for us to review the 
congressional resolution of these factors. It is enough that we 
be able to perceive a basis upon which the Congress might 
resolve the conflict as it did. There plainly was such a basis 
to support section 4(e) in the application in question in this 
case.'' Id. at 653.
      Paragraph (10) in Section 2 of the conference report is 
substantively identical, with technical clarifications, to 
paragraph (10) in Section 2 of the House amendment and 
paragraph (10) in Section 2 of the Senate bill. In paragraph 
(10), Congress finds that Katzenbach's highly deferential 
review of Congress's factual conclusions was relied upon by the 
United States District Court for the District of Columbia when 
it upheld the ``bail-out'' provisions of the Voting Rights Act 
of 1965, (42 U.S.C. 1973c), stating that ``congressional fact 
finding, to which we are inclined to pay great deference, 
strengthens the inference that, in those jurisdictions covered 
by the Act, state actions discriminatory in effect are 
discriminatory in purpose.'' City of Rome, Georgia v. U.S., 472 
F. Supp. 221 (D. D.C. 1979), affd, 446 U.S. 156 (1980).
      Paragraph (11) in Section 2 of the conference report is 
identical to paragraph (11) in Section 2 of the House amendment 
and paragraph (11) in Section 2 of the Senate bill. In 
paragraph (11), Congress finds that the Court continued its 
practice of deferring to congressional factual findings in 
reviewing the constitutionality of the must-carry provisions of 
the Cable Television Consumer Protection and Competition Act of 
1992. See Turner Broadcasting System, Inc. v. Federal 
Communications Commission, 512 U.S. 622 (1994) (Turner I) and 
Turner Broadcasting System, Inc. v. Federal Communications 
Commission, 520 U.S. 180 (1997) (Turner II). Congress finds 
that at issue in the Turner cases was Congress' legislative 
finding that, absent mandatory carriage rules, the continued 
viability of local broadcast television would be ``seriously 
jeopardized.'' Congress finds that the Turner I Court 
recognized that as an institution, ``Congress is far better 
equipped than the judiciary to `amass and evaluate the vast 
amounts of data' bearing upon an issue as complex and dynamic 
as that presented here.'' 512 U.S. at 665-66. Although the 
Court recognized that ``the deference afforded to legislative 
findings does `not foreclose our independent judgment of the 
facts bearing on an issue of constitutional law,' '' its 
``obligation to exercise independent judgment when First 
Amendment rights are implicated is not a license to reweigh the 
evidence de novo, or to replace Congress' factual predictions 
with our own. Rather, it is to assure that, in formulating its 
judgments, Congress has drawn reasonable inferences based on 
substantial evidence.'' Id. at 666.
      Paragraph (12) in Section 2 of the conference report is 
identical to paragraph (12) in Section 2 ofthe House amendment 
and paragraph (12) in Section 2 of the Senate bill. In paragraph (12), 
Congress finds that three years later in Turner II, the Court upheld 
the ``must-carry'' provisions based upon Congress' findings, stating 
the Court's ``sole obligation is `to assure that, in formulating its 
judgments, Congress has drawn reasonable inferences based on 
substantial evidence.' '' 520 U.S. at 195. Congress finds that, citing 
its ruling in Turner I, the Court reiterated that ``[w]e owe Congress' 
findings deference in part because the institution `is far better 
equipped than the judiciary to ``amass and evaluate the vast amounts of 
data'' bearing upon' legislative questions,'' Id. at 195, and added 
that it ``owe[d] Congress' findings an additional measure of deference 
out of respect for its authority to exercise the legislative power.'' 
Id. at 196.
      Paragraph (13) in Section 2 of the conference report is 
substantively identical, with technical clarifications, to 
paragraph (13) in Section 2 of the House amendment and 
paragraph (13) in Section 2 of the Senate bill. In paragraph 
(13), Congress finds that there exists substantial record 
evidence upon which Congress has reached its conclusion that a 
ban on partial-birth abortion is not required to contain a 
``health'' exception, because the facts demonstrate that a 
partial-birth abortion is never necessary to preserve the 
health of a woman, poses serious risks to a woman's health, and 
lies outside the standard of medical care. Congress also finds 
that it has been informed by extensive hearings held during the 
104th, 105th, 107th, and 108th Congresses and passed a ban on 
partial-birth abortion in the 104th, 105th, and 106th 
Congresses. Congress finds that these findings reflect its very 
informed judgment that a partial-birth abortion is never 
necessary to preserve the health of a woman, poses serious 
risks to a woman's health, and lies outside the standard of 
medical care, and should, therefore, be banned.
      Paragraph (14) in Section 2 of the conference report is 
substantively identical, with technical clarifications, to 
paragraph (14) in Section 2 of the House amendment and 
paragraph (14) in Section 2 of the Senate bill. In paragraph 
(14), Congress, pursuant to the substantial and credible 
testimony received during extensive legislative hearings during 
the 104th, 105th, 107th, and 108th Congresses, lists its 
declarations regarding the partial-birth abortion procedure:
      Paragraph (14)(A) in Section 2 of the conference report 
is identical to paragraph (14)(A) in Section 2 of the House 
amendment and paragraph (14)(A) in Section 2 of the Senate 
bill. In paragraph (14)(A), Congress declares that a partial-
birth abortion poses serious risks to the health of a woman 
undergoing the procedure. Those risks include, among other 
things: an increase in a woman's risk of suffering from 
cervical incompetence, a result of cervical dilation making it 
difficult or impossible for a woman to successfully carry a 
subsequent pregnancy to term; an increased risk of uterine 
rupture, abruption, amniotic fluid embolus, and trauma to the 
uterus as a result of converting the child to a footling breech 
position, a procedure which, according to a leading obstetrics 
textbook, ``there are very few, if any, indications for * * * 
other than for delivery of a second twin''; and a risk of 
lacerations and secondary hemorrhaging due to the doctor 
blindly forcing a sharp instrument into the base of the unborn 
child's skull while he or she is lodged in the birth canal, an 
act which could result in severe bleeding, brings with it the 
threat of shock, and could ultimately result in maternal death. 
Therefore, Congress concludes that those who express the view 
that partial-birth abortion may be a safer method of abortion 
in some circumstances have never examined the severe risks of 
the procedure to the health of the mother and have not 
demonstrated that this procedure is a safe, medically accepted, 
standard of care.
      Paragraph (14)(B) in Section 2 of the conference report 
is identical to paragraph (14)(B) in Section 2 of the House 
amendment and paragraph (14)(B) in Section 2 of the Senate 
bill. In paragraph (14)(B), Congress declares that there is no 
credible medical evidence that partial-birth abortions are safe 
or are safer than other abortion procedures. Congress also 
declares that no controlled studies of partial-birth abortions 
have been conducted nor have any comparative studies been 
conducted to demonstrate its safety and efficacy compared to 
other abortion methods. Congress further declares that there 
have been no articles published in peer-reviewed journals that 
establish that partial-birth abortions are superior in any way 
to established abortion procedures. Congress also declares that 
unlike other more commonly used abortion procedures, there are 
currently no medical schools that provide instruction on 
abortions that include the instruction in partial-birth 
abortions in their curriculum.
      Paragraph (14)(C) in Section 2 of the conference report 
is identical to paragraph (14)(C) in Section 2 of the House 
amendment and paragraph (14)(C) in Section 2 of the Senate 
bill. In paragraph (14)(C), Congress declares that a prominent 
medical association has concluded that partial-birth abortion 
is ``not an accepted medical practice,'' that it has ``never 
been subject to even a minimal amount of the normal medical 
practice development,'' that ``the relative advantages and 
disadvantages of the procedure in specific circumstances remain 
unknown,'' and that ``there is no consensus among obstetricians 
about its use.'' The association has further noted that 
partial-birth abortion is broadly disfavored by both medical 
experts and the public, is ``ethically wrong,'' and ``is never 
the only appropriate procedure.''
      Paragraph (14)(D) in Section 2 of the conference report 
is identical to paragraph (14)(D) in Section 2 of the House 
amendment and paragraph (14)(D) in Section 2 of the Senate 
bill. In paragraph (14)(D), Congress declares that those who 
espouse the view that partial-birth abortion ``may'' be the 
most appropriate abortion procedure for some women in ``some'' 
circumstances, such as the plaintiff in Stenberg v. Carhart and 
the experts who testified on his behalf, have failed to 
identify such circumstances and base their opinion on 
theoretical speculation, not actual evidence that demonstrates 
the relative safety of this abortion procedure.
      Paragraph (14)(E) in Section 2 of the conference report 
is identical to paragraph (14)(E) in Section 2 of the House 
amendment and paragraph (14)(E) in Section 2 of the Senate 
bill. In paragraph (14)(E), Congress declares that the 
physician credited with developing the partial-birth abortion 
procedure has testified that he has never encountered a 
situation where a partial-birth abortion was medically 
necessary toachieve the desired outcome and, thus, is never 
medically necessary to preserve the health of a woman.
      Paragraph (14)(F) in Section 2 of the conference report 
is identical to paragraph (14)(F) in the House amendment and 
paragraph (14)(F) in the Senate bill. In paragraph (14)(F), 
Congress declares that a ban on the partial-birth abortion 
procedure will advance the health interests of pregnant women 
seeking to terminate a pregnancy.
      Paragraph (14)(G) in Section 2 of the conference report 
is identical to paragraph (14)(G) in the House amendment and 
paragraph (14)(G) in the Senate bill. In paragraph (14)(G), 
Congress declares that in light of this overwhelming evidence, 
Congress and the States have a compelling interest in 
prohibiting partial-birth abortions. Congress also declares 
that in addition to promoting maternal health, such a 
prohibition will draw a bright line that clearly distinguishes 
abortion and infanticide, that preserves the integrity of the 
medical profession, and promotes respect for human life.
      Paragraph (14)(H) in Section 2 of the conference report 
is identical to paragraph (14)(H) in the House amendment and 
(14)(H) in the Senate bill. In paragraph (14)(H), Congress 
declares that based upon Roe v. Wade, 410 U.S. 113 (1973), and 
Planned Parenthood v. Casey, 505 U.S. 833 (1992), a 
governmental interest in protecting the life of a child during 
the delivery process arises, in part, by virtue of the fact 
that during a partial-birth abortion, labor is induced and the 
birth process has begun. Congress further declares that this 
distinction was recognized in Roe when the Court noted, without 
comment, that the Texas parturition statute, which prohibited 
one from killing a child ``in a state of being born and before 
actual birth,'' was not under attack. Congress declares that 
this interest becomes compelling as the child emerges from the 
maternal body. Congress declares that a child that is 
completely born is a full, legal person entitled to 
constitutional protections afforded a ``person'' under the 
United States Constitution. Congress declares that partial-
birth abortions involve the killing of a child that is in the 
process, in fact mere inches away from, becoming a ``person.'' 
Partial birth gives the fetus an autonomy that is separate and 
distinct from that of the mother. Thus, the government has a 
heightened interest in protecting the life of the partially-
born child.
      Paragraph (14)(I) in Section 2 of the conference report 
is identical to paragraph (14)(I) in Section 2 of the House 
amendment and paragraph (14)(I) in Section 2 of the Senate 
bill. In paragraph (14)(I), Congress declares that the 
distinction between a partial-birth abortion and other abortion 
methods has been recognized by the medical community, where a 
prominent medical association has recognized that partial-birth 
abortions are ``ethically different from other destructive 
abortion techniques because the fetus, normally twenty weeks or 
longer in gestation, is killed outside of the womb.'' According 
to this medical association, the `` `partial birth' gives the 
fetus an autonomy which separates it from the right of the 
woman to choose treatments for her own body.''
      Paragraph (14)(J) in Section 2 of the conference report 
is identical to paragraph (14)(J) in Section 2 of the House 
amendment and paragraph (14)(J) in Section 2 of the Senate 
bill. In paragraph (14)(J), Congress declares that a partial-
birth abortion also confuses the medical, legal, and ethical 
duties of physicians to preserve and promote life, as the 
physician acts directly against the physical life of a child, 
whom he or she had just delivered, all but the head, out of the 
womb, in order to end that life. Congress further declares that 
a partial-birth abortion thus appropriates the terminology and 
techniques used by obstetricians in the delivery of living 
children--obstetricians who preserve and protect the life of 
the mother and the child--and instead uses those techniques to 
end the life of the partially-born child.
      Paragraph (14)(K) in Section 2 of the conference report 
is identical to paragraph (14)(K) in Section 2 of the House 
amendment and paragraph (14)(K) in Section 2 of the Senate 
bill. In paragraph (14)(K), Congress declares that by aborting 
a child in the manner that purposefully seeks to kill the child 
after he or she has begun the process of birth, partial-birth 
abortion undermines the public's perception of the appropriate 
role of a physician during the delivery process, and perverts a 
process during which life is brought into the world, in order 
to destroy a partially-born child.
      Paragraph (14)(L) in Section 2 of the conference report 
is identical to paragraph (14)(L) in Section 2 of the House 
amendment and paragraph (14)(L) in Section 2 of the Senate 
bill. In paragraph (14)(L), Congress declares that the gruesome 
and inhumane nature of the partial-birth abortion procedure and 
its disturbing similarity to the killing of a newborn infant 
promotes a complete disregard for infant human life that can 
only be countered by a prohibition of the procedure.
      Paragraph (14)(M) in Section 2 of the conference report 
is identical to paragraph (14)(M) in Section 2 of the House 
amendment and paragraph (14)(M) in Section 2 of the Senate 
bill. In paragraph (14)(M), Congress declares that the vast 
majority of babies killed during partial-birth abortions are 
alive until the end of the procedure. Congress further declares 
that it is a medical fact, however, that unborn infants at this 
stage can feel pain when subjected to painful stimuli and that 
their perception of this pain is even more intense than that of 
newborn infants and older children when subjected to the same 
stimuli. Evidence compiled by Congress demonstrates that 
fetuses on whom in utero surgery is performed for medical 
reasons feel pain from needles and instruments and are provided 
anesthesia. Pain management is an important part of care 
provided to infants cared for in neonatal units who are of the 
same gestational ages as those subject to partial-birth 
abortion. Partial-birth abortion is an extremely painful 
procedure for the fetus and, during a partial-birth abortion 
procedure, the child will fully experience the pain associated 
with piercing his or her skull and sucking out his or her 
brain.
      Paragraph (14)(N) in Section 2 of the conference report 
is identical to paragraph(14)(N) in Section 2 of the House 
amendment and paragraph (14)(N) in Section 2 of the Senate bill. In 
paragraph (14)(N), Congress declares that implicitly approving such a 
brutal and inhumane procedure by choosing not to prohibit it will 
further coarsen society to the humanity of not only newborns, but all 
vulnerable and innocent human life, making it increasingly difficult to 
protect such life. Congress further declares that as a result it has a 
compelling interest in acting--indeed it must act--to prohibit this 
inhumane procedure.
      Paragraph (14)(O) in Section 2 of the conference report 
is identical to paragraph (14)(O) in Section 2 of the House 
amendment and paragraph (14)(O) in Section 2 of the Senate 
bill. In paragraph (14)(O), Congress declares that for these 
reasons, it finds that partial-birth abortion is never 
medically indicated to preserve the health of the mother; is in 
fact unrecognized as a valid abortion procedure by the 
mainstream medical community; poses additional health risks to 
the mother; blurs the line between abortion and infanticide in 
the killing of a partially-born child just inches from birth; 
and confuses the role of the physician in childbirth and 
should, therefore, be banned.
Section 3. Prohibition on partial-birth abortions
      Subsection (a) in Section 3 of the conference report is 
identical to subsection (a) in Section 3 of the House amendment 
and subsection (a) in Section 3 of the Senate bill. In 
subsection (a) of Section 3 Congress amends title 18 of the 
United States Code by inserting a new chapter 74 consisting of 
a new 18 U.S.C. 1531:
      Subsection (a) of the new section 1531 contained in 
Section 3(a) of the conference report is identical to 
subsection (a) of the new section 1531 proposed in Section 3(a) 
of the House amendment and subsection (a) of the new section 
1531 proposed in Section 3(a) of the Senate bill. Subsection 
(a) prohibits any physician from, in or affecting interstate or 
foreign commerce, knowingly performing a partial-birth abortion 
and thereby killing a human fetus. A physician who does so 
shall be fined under this title or imprisoned not more than 2 
years, or both. This paragraph does not apply to a partial-
birth abortion that is necessary to save the life of a mother 
whose life is endangered by a physical disorder, physical 
illness, or physical injury, including a life-endangering 
physical condition caused by or arising from the pregnancy 
itself. This paragraph takes effect 1 day after the enactment.
      Subsection (b)(1) of the new section 1531 contained in 
Section 3(a) of the conference report is substantively 
identical, with technical clarifications, to subsection (b)(1) 
of the new section 1531 proposed in Section 3(a) of the House 
amendment and subsection (b)(1) of the new section 1531 
proposed in Section 3(a) of the Senate bill. Subsection (b)(1) 
states that a partial-birth abortion means an abortion in which 
the person performing the abortion deliberately and 
intentionally vaginally delivers an intact living fetus until, 
in the case of a head-first presentation, the entire fetal head 
is outside the body of the mother, or, in the case of breech 
presentation, any part of the fetal trunk past the navel is 
outside the body of the mother, for the purpose of performing 
an overt act that the person knows will kill the partially 
delivered living fetus and the person performing the abortion 
performs the overt act (such as the removal of the intracranial 
contents), other than completion of delivery, that kills the 
partially delivered intact living fetus.
      Subsection (b)(2) of the new section 1531 contained in 
Section 3(a) of the conference report is identical to 
subsection (b)(2) of the new section 1531 proposed in Section 
3(a) of the House amendment and subsection (b)(2) of the new 
section 1531 proposed in Section 3(a) of the Senate bill. 
Subsection (b)(2) defines the term ``physician'' as a doctor of 
medicine or osteopathy legally authorized to practice medicine 
and surgery by the State in which the doctor performs such 
activity, or any other individual legally authorized by the 
State to perform abortions: Provided, however, that any 
individual who is not a physician or not otherwise legally 
authorized by the State to perform abortions, but who 
nevertheless directly performs a partial-birth abortion, shall 
be subject to the provisions of this section.
      Subsection (c)(1) of the new section 1531 contained in 
Section 3(a) of the conference report is identical to 
subsection (c)(1) of the new section 1531 proposed in Section 
3(a) of the House amendment and subsection (c)(1) of the new 
section 1531 proposed in Section 3(a) of the Senate bill. 
Subsection (c)(1) provides for a civil cause of action for the 
father, if married to the mother at the time she receives a 
partial-birth abortion procedure, and if the mother has not 
attained the age of 18 years at the time of the abortion, the 
maternal grandparents of the fetus, unless the pregnancy 
resulted from the plaintiff's criminal conduct or the plaintiff 
consented to the abortion.
      Subsection (c)(2) of the new section 1531 contained in 
Section 3(a) of the conference report is identical to 
subsection (c)(2) of the new section 1531 proposed in Section 
3(a) of the House amendment and paragraph (c)(2) of the new 
section 1531 proposed in Section 3(a) of the Senate bill. 
Subsection (c)(2), in paragraph (A) provides that such relief 
shall include money damages for all injuries, psychological and 
physical, occasioned by the violation of this section; and in 
paragraph (B) that statutory damages equal to three times the 
cost of the partial-birth abortion.
      Subsection (d)(1) of the new section 1531 contained in 
Section 3(a) of the conference report is identical to 
subsection (d)(1) of the new section 1531 proposed in Section 
3(a) of the House amendment and subsection (d)(1) of the new 
section 1531 proposed in Section 3(a) of the Senate bill. 
Subsection (d)(1) allows a defendant accused of an offense 
under this section to seek a hearing before the State Medical 
Board on whether the physician's conduct was necessary to save 
the life of the mother whose life was endangered by a physical 
disorder, physical illness, or physical injury, including a 
life-endangering physical condition caused by or arising from 
the pregnancy itself.
      Subsection (d)(2) of the new section 1531 contained in 
Section 3(a) of the conference report is identical to 
subsection (d)(2) of the new section 1531 proposed in Section 
3(a) of the House amendment and subsection (d)(2) of the new 
section 1531 proposed in Section 3(a) of the Senate bill. 
Subsection (d)(2) provides that the findings on that issue are 
admissible on that issue at the trial of the defendant. It also 
provides that upon a motion of the defendant, the court shall 
delay the beginning of the trial for not more than 30 days to 
permit such a hearing to take place.
      Subsection (e) of the new section 1531 contained in 
Section 3(a) of the conference report is identical to 
subsection (e) of the new section 1531 proposed in Section 3(a) 
of the House amendment and subsection (e) of the new section 
1531 proposed in Section 3(a) of the Senate bill. Subsection 
(e) provides that a woman upon whom a partial-birth abortion is 
performed may not be prosecuted under this section, for a 
conspiracy to violate this section, or for an offense under 
section 2, 3, or 4 of this title based on a violation of this 
section.
      Subsection (b) in Section 3 of the conference report is 
identical to subsection (b) in Section 3 of the House amendment 
and subsection (b) in Section 3 of the Senate bill. Subsection 
(b) is a clerical amendment to insert the new chapter in the 
table of chapters for part I of title 18, after the item 
relating to chapter 73.
      Section 4 of the Senate bill had no counterpart in the 
House amendment, and it is not included in the substitute 
agreed to by the managers.

                                   F. James Sensenbrenner, Jr.,
                                   Henry Hyde,
                                   Steve Chabot,
                                 Managers on the Part of the House.

                                   Orrin Hatch,
                                   Rick Santorum,
                                   Mike DeWine,
                                Managers on the Part of the Senate.

                                
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