    [United States Statutes at Large, Volume 117, 108th Congress, 1st Session]
    [From the U.S. Government Publishing Office, www.gpo.gov]

    117 STAT. 1201

    Public Law 108-105
    108th Congress

    An Act

    To prohibit the procedure commonly known as partial-birth
    abortion. [NOTE: Nov. 5, 2003 -  [S. 3]]

    Be it enacted by the Senate and House of Representatives of the
    United States of America in Congress assembled, [NOTE: Partial-Birth
    Abortion Ban Act of 2003.]

    SECTION 1. [NOTE: 18 USC 1531 note.] SHORT TITLE.

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

    SEC. 2. [NOTE: 18 USC 1531 note.] 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.

    [[Page 1202]]
    117 STAT. 1202

    (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 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

    [[Page 1203]]
    117 STAT. 1203

    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,

    [[Page 1204]]
    117 STAT. 1204

    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 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.
    (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

    [[Page 1205]]
    117 STAT. 1205

    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.

    [[Page 1206]]
    117 STAT. 1206

    (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. [NOTE: Effective date.] 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

    [[Page 1207]]
    117 STAT. 1207

    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.''.

    [[Page 1208]]
    117 STAT. 1208

    (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''.

    Approved November 5, 2003.

    LEGISLATIVE HISTORY--S. 3 (H.R. 760):
    ---------------------------------------------------------------------------

    HOUSE REPORTS: Nos. 108-58 accompanying H.R. 760 (Comm. on the
    Judiciary) and 108-288 (Comm. of Conference).
    CONGRESSIONAL RECORD, Vol. 149 (2003):
    Mar. 10-13, considered and passed Senate.
    June 4, considered and passed House, amended, in lieu of
    H.R. 760.
    Oct. 2, House agreed to conference report.
    Oct. 21, Senate agreed to conference report.
    WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 39 (2003):
    Nov. 5, Presidential remarks.