[Congressional Record Volume 145, Number 143 (Wednesday, October 20, 1999)]
[Senate]
[Pages S12863-S12899]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PARTIAL-BIRTH ABORTION BAN ACT OF 1999
The PRESIDING OFFICER. The clerk will report the bill.
The legislative clerk read as follows:
A bill (S. 1692) to amend Title 18, United States Code, to
ban partial-birth abortions.
The Senate proceeded to consider the bill.
Mr. SANTORUM. Mr. President, we now, somewhat belatedly, begin the
debate on partial-birth abortion. To review the actions of this body on
this issue and the actions of the Congress, this is the third time this
bill or some form of this bill has been voted on to pass the Senate. We
passed this bill in 1995 and in 1997. Here we are again in 1999. We had
two override attempts of the President's veto in 1996 and 1998, and I
am fairly sure we will probably have another attempt on a Presidential
veto override next year, in the year 2000.
Each time this bill has been voted on, succeeding Congresses picked
up votes. In other words, we have gotten closer to the two-thirds
necessary, 67 Senators, to override an anticipated Presidential veto. I
am hopeful we will continue that trend. We started in 1995 with a vote
of 55 or 56 Senators supporting banning this procedure. As of the vote
last year, we were up to 64 Senators in this body agreeing this
procedure is not necessary. It is, in fact, unhealthy and it is a
threat to the health and life of the mother, as well as being a brutal
and barbaric procedure.
I am hopeful through the course of this debate we can have a fair
debate about this issue. Some have tried to turn this into a broader
debate about abortions and view this as just the first shot at Roe v.
Wade, an attempt to put a chink in the armor, intimating there is a
grand agenda to try to chip away abortion rights that were given by the
Supreme Court in Roe v. Wade.
Let me assure my colleagues that is not my intention. This bill is a
straightforward piece of legislation that deals with a specific
procedure. In fact, I am hopeful we will be able, through an amendment
process, to make it even more clear we are referring simply to the
procedure known as
[[Page S12864]]
partial-birth abortion. I will describe what that procedure is in a
moment. But there is no such intent here. In fact, one of the reasons
we are offering this amendment is because we believe this comports with
Roe v. Wade; that this is a constitutional restriction and, in fact, it
falls outside the concerns of Roe v. Wade because the baby is outside
of the mother. The baby is no longer in the mother's womb.
So decisions have been made in the courts across the country. There
have been several State bans that have been held unconstitutional, one
that was held constitutional. So my guess is we will continue to see
States deal with this issue, courts continue to be all over the map,
some saying it is unconstitutional, some saying it is constitutional,
until we get, finally, to the Supreme Court and they can look at it. I
am confident it is constitutional.
Having said that, we just finished a debate on campaign finance
reform where the very Members who stand before the body to say we
cannot pass this because it is unconstitutional voted for campaign
finance reform bills that are clearly unconstitutional, clearly in
violation of the Supreme Court's edict on allowing unlimited soft
money. But they come here and say: We think the Court is wrong and we
are going to ban it anyway. This is directly on point with a Supreme
Court decision.
In our case, with partial-birth abortion, where the baby is killed in
the process of being born, the baby is outside the mother, under Roe v.
Wade they let stand a Texas statute that was under appeal under Roe v.
Wade prohibiting the killing of a child in the process of being born.
So in a sense we have a case on point in Roe v. Wade that says this
kind of thing is, in fact, constitutional. Yet you will hear the
arguments, I am sure, at length in the next day or two that we cannot
pass this because some courts have said this is unconstitutional. I
think at best that is an unclear argument. At worst, I would argue it
is clearly constitutional because of the Roe v. Wade decision.
To make that argument the very day--or the day after, now--many of
the Members making this argument vote for something that is clearly
unconstitutional because they want to send it to the Court and have the
Court take another look at it strikes me as a little disingenuous; that
you would make one argument one day and do a 180 degree turn and say we
cannot pass it because it is unconstitutional when the day before you
pass what you know is unconstitutional and you hope the Court will
change its mind.
I think now what I want to do is go through briefly what a partial-
birth abortion is, how it is performed, when it is performed, who
performs it, where it is performed, and why. If I could first start out
with a chart that describes the procedure, you can see this is a baby.
By the way, that is at least 20 weeks of gestation. During a 40-week
gestational period, partial-birth abortions are performed on babies who
are at least 20 weeks. So this is a late-term abortion. This is a
second- and in some cases a third-trimester abortion. Let me start with
how it starts.
First, the mother presents herself to the abortion clinic. The
abortionist decides what procedure he or she wants to use to kill the
baby. In a small percentage of second- and third-trimester abortions, a
partial-birth abortion is used. It is not the most common method of
abortion in late trimester. In fact, it is relatively rare. We are not
sure of the numbers. The reason we are not sure of the numbers is we
have to rely on the abortion industry--which, by the way, opposes this
bill--to give us their numbers on how many they say they do. The
Federal Government does not keep track of the method of abortion used
in the second and third trimester. In fact, they don't keep track of
the method of abortion period. So we do not know from any Government
statistics or any independent source how many of these abortions are
performed. We only can go by what the opponents of this bill tell us is
the number.
They originally told us there were just a few hundred. Then a report
came out in a paper in northern New Jersey, the Bergen County Record,
and they just happened to have a good reporter who thought maybe he
would ask his local abortion clinic how many of these abortions were
performed. He took the time, as reporters I think would want to do, to
find out the accuracy of the story he was reporting. He contacted an
abortion clinic in northern New Jersey and the abortion clinic there
said they did 1,500 a year at that clinic. Where the national
organization said they did 500 nationally, there were 1,500 done at
that clinic. The person at the clinic who said they did 1,500 there
said they had trained a couple of other abortionists who perform them
in New York, in addition to the 1,500 that were done there.
So when I say a small percentage, that is what has been reported to
us, again, by the people who oppose this and who realize the more they
report the harder it is for them to defend. Because, again, what you
hear the President and other advocates of this procedure talk about is
this is a rare case--just to protect the mother's health or life, in
the case of a severely deformed baby, so it is very rarely done. What
we found is that is not the case.
I think it is clear and many have admitted since within the abortion
industry, that is just not true. So what we have is a case where we do
not know how many are performed but we believe, according to them, it
is around 5,000 or more a year. I want to stop right there and pause
for a minute. I want everybody to think if we heard about the murder of
5,000 children a year through a procedure or some act of violence--if
we heard about 5,000 a year, people would be marching on Congress and
saying: How can you let 5, much less 5,000, babies be killed in such a
horrific way? But because we put it under the rubric of abortion, it is
OK.
What I want to show today, looking at this procedure, is this is not
like abortion. This is like infanticide. This is a baby who is all but
born and then killed. So I think we need to look at it and have this
debate focus on not the issue of abortion because there are plenty, as
is evidenced by the numbers, of other procedures available to perform
abortions. This is a rogue procedure that is infanticide. That is why
Members on both sides of the aisle who are supporters of abortion
rights have joined with us because they believe this is a step too far.
We have drawn the line in the wrong place. Once the baby is in the
process of being born, we have to say: Wait a minute; this baby is now
outside of the mother, almost outside of the mother. This is not
abortion anymore.
What happens is the mother presents herself to the abortionist and
the abortionist decides they would like to do an intact D&E, or a
partial-birth abortion. What happens is the abortionist will give the
mother pills to dilate the mother's cervix so the abortionist can then
perform the abortion. Not immediately; this is a 3-day procedure. The
mother comes back in 2 days. On the third day, after she has taken the
pills the first day and the second day, she presents herself back to
the abortionist with the cervix dilated.
I can get into all the health reasons why this is dangerous and could
lead to infections and problems, and what we have seen, not just
infections but it can lead to and, in fact, has led to babies being
born as a result of the dilation of the cervix. The mothers go into
labor and babies are born and born alive. In fact, we have cases in the
last few weeks where a baby who was to have been aborted through a
partial-birth abortion was born alive and is alive today. By the way,
this is a perfectly healthy little girl. So when the argument is these
babies wouldn't live or these babies are deformed or it is for the
health of the mother, none of this is true. None of this is true.
Now we have cases--in fact, just in the last few weeks, a case where
this baby is alive today. Another baby was born alive but not attended
to by the abortionist, not attended to. They let the baby die.
Again, the point I am trying to make is, the line is a very important
one. You can see from the case where the baby was allowed to die that
once we begin to think of this little baby outside the mother as just a
disposable item, then we have lost something. We have blurred the line,
which I do not think we as a society want to allow to be blurred, about
who is protected by our Constitution and our right to life.
Clearly, I hope we all believe that once a baby is born, that baby is
entitled to life. Where we draw the line as
[[Page S12865]]
to when that occurs is significant. That is why many people who are,
again, for abortion rights say: Once the baby is outside, I am a little
uncomfortable saying you can kill the baby, as well they should.
The mother presents herself, on the third day of the cervix being
dilated, to the abortionist. The abortionist uses an ultrasound to
examine the mother and guide the abortionist to insert forceps in
through the cervix, up into the uterus.
Those of you who have been involved in the birth of children know--we
have six children--babies are usually at that age in a head-down
position. They move around, but as they go further in pregnancy, the
baby usually has its head in the down position.
They reach up with the forceps and grab the baby by the foot or the
leg. Again, this is a 20-week-plus baby. We have plenty of
documentation that this has gone on at 22, 23, 24, 25, 26, and even
older--but rare as it gets older, I admit that. This is a fully
developed baby that would otherwise, if delivered at this week of
gestation, be born alive.
They take the baby and grab the leg with the forceps. Then they turn
the baby around in the uterus. Many of you are familiar with the term
``breech birth.'' When you present yourself for delivery of a baby and
you are told your baby is in a breech position, bells and whistles go
off. Obstetricians get very nervous because there are a lot of
difficulties with delivering a baby in a breech position. There are a
lot of complications, obviously for the baby, but also for the mother.
To deliberately turn a baby into a breech position, by common sense,
endangers the mother. Obviously, in abortion it dramatically endangers
the baby.
They take the leg, and they pull the baby feet first out of the
uterus through the birth canal. All of the baby is delivered except for
the head. The entire baby is outside the mother with the exception of
the baby's head. Again, we get back to the question, Is this an
abortion or is this infanticide?
The reason this debate is so crucial is that it is where worlds
intersect. It is the line we are going to draw. There are a lot of
people who are for abortion rights who say: Look, the line is, the baby
is inside the mother; the mother can abort the baby, period. And they
say: But yes, obviously, when the baby is outside the mother, you
cannot kill the baby.
This is where the worlds intersect because we have a situation where
the baby is almost outside the mother. This baby would be born alive
because this procedure occurs after 20 weeks. What the abortionist does
is deliver the baby, all but the head. Why? Because the head is the
largest part of the body at that age, so the most difficult to deliver.
There is also some question that if the baby comes out head first and
once the head is delivered, will the Constitution treat it differently,
if the head comes out first as opposed to the feet coming out first?
Some have argued that once the baby's head is through the cervix, that
is birth, so maybe they are under constitutional rights.
Do you see how fuzzy this line is, and do you see why some on both
sides of this issue believe it is important to draw the line so we do
not get into this rather difficult situation?
The baby is delivered, all but the head. The abortionist then does a
barbaric thing. I even think those who support this procedure would
argue and would agree with me that this is barbaric. This is a living
baby, a human being. It is delivered outside of the mother. Its arms,
its legs, its torso are outside the mother. The doctor, because they
cannot see; it is a blind procedure--the baby is face down--feels up
the spine to the base of the neck, base of the skull, top of the neck,
finds the point at the bottom of the base of the skull, takes a pair of
scissors, and jams it into the base of the baby's skull.
I do not have to tell you, a baby at 20-plus weeks has a fully
developed--I should not say fully--has a developed nervous system and
feels pain, acutely some have suggested, more than you would feel pain.
A medical doctor takes a pair of scissors and jabs the baby in the
skull.
Nurse Brenda Shafer, who testified before the Senate and House
Judiciary Committees, described the reaction of one of the babies when
this occurred. The baby threw out its arms and legs. If you ever held a
little baby and you gently bounced them in your arms, they stick out
their arms because they are not sure, they lose their equilibrium. She
said it was just like that. The little baby lost its equilibrium and
then fell down.
The baby is dead now. The abortionist has killed the baby that was 3
inches from being protected by the Constitution. Three inches more and
everybody in America would say--everybody but a couple of people in
Princeton--that baby should no longer be able to be killed. But for
those 3 inches, that little baby is allowed to be executed in the most
painful, brutal, insensitive, barbaric fashion of which I think any of
us have heard.
To add insult to injury--let me put it a different way. To add insult
to execution, they take the suction catheter, insert it in the hole
made by the scissors, and they suction out the baby's brains. And a
baby's skull is soft. It has those plates that move, grow, allow the
baby's head to expand. The baby's head just collapses as a result of
the suction. And then this otherwise beautiful, healthy, normal baby--
that would otherwise be born alive and, in a vast majority of the
numbers, particularly after 22 weeks, would not only be born alive but
would be viable outside the mother--is then extracted completely from
the womb.
If you described what I just described as a procedure done on any
human being in some foreign country as a way of torture, the American
public would be aghast, they would be outraged, outraged that such
barbarism could occur in a civilized country. But this barbarism occurs
every single day in America. Thousands of times a year, little babies
are killed in this brutal fashion. Why? I will get to that in a minute.
Who performs this? And where, by the way? Is this performed in
hospitals? The answer to that is no. No hospital would do an abortion
such as this. Is this in the medical literature? The answer is no. It
is not taught in any medical school. It is not taught anywhere except
by the developer and another person from Ohio who developed this
procedure.
Is the person who developed this abortion technique a well-known
obstetrician, someone who is board certified, someone who is an expert
in internal fetal medicine? No. No. Not only is this person not board
certified, not only is this person not an expert in internal fetal
medicine, this person is not even an obstetrician.
The person who developed this procedure was a family practice doctor
who, I guess, could not make it saving children so went into the
abortion business and developed this procedure, not because this was a
procedure that was in the best interest of anybody concerned, except
the abortionist, but because this is a much simpler procedure in the
sense it takes less time, so you can do more abortions during a day. It
takes less time than other late-term abortions, so you can do more of
them. And, of course, when you get paid for these, the more you can do,
the more money you make.
Why is this procedure done? You will hear arguments today that this
procedure is done to protect the life and health of the mother--that is
what you will hear: life and health--and another thing which is health
related: the future fertility of the mother. We will have a long debate
about that. I am not going to take a lot of time in my opening
statement about that, but I do want to address it briefly.
No. 1, life. There is a clear life-of-the-mother exception in this
bill. If this procedure needs to be used to protect the life of the
mother, it can be used. Having said that, the person who developed this
procedure, the person who does, from what we know--again, we do not
have good information--most of these kinds of procedures, a guy named
Dr. Haskell from Ohio, has said under oath in a court of law--in a
court of law, under oath--that this procedure is never used to protect
the life of the mother.
Under oath, in a court of law, what would seemingly be an admission
against his own interest, in one of these suits that challenges the
constitutionality of this, he admitted, as, frankly, has everybody
else--except a few folks on the other side of the aisle who have it in
their mind that somehow this is needed to save the life of the mother--
it is never used.
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Do you know what we say? Fine. It is never used? We will still put
it in the bill. If there is some strange occurrence that no
obstetrician I have heard of has come forward with to say needs to be
used to protect the life of the mother, it is covered.
Think about this intuitively. This is why the doctor arrived and why
everybody who has looked at this issue has arrived at the conclusion
that this is never used to protect the life of the mother.
If you had a mother who presents herself in a life-threatening
situation, would you give her two pills and say come back in 3 days?
You do not have to be an obstetrician to figure this one out, folks. If
someone is in a life-threatening situation, you do not give them two
pills and say go home and come back in 3 days, and dilate their cervix
during that 3-day period.
So the argument that this is somehow used to protect the life of the
mother is as bogus as a number of other lies I will go through here in
a minute that have been put forward by the other side to stop this
procedure from being banned.
Second, health. Again, same doctor, same case. Different question: Is
this procedure ever necessary to protect the health of the mother?
Again, the abortionist who helped develop the procedure, who uses it
more than anybody else, testifying in court, under oath: Is this
necessary to protect the health of the mother? Answer: No. No.
But you will see people come to the floor and talk about, oh, how
this is absolutely necessary, how this is an important health issue for
women. We have over 400 obstetricians, most of them board certified,
many of them specialists in maternal-fetal medicine, who have written
letters, who have signed documents, including the AMA--which is not a
pro-life organization, I might add--who have signed letters saying this
is bad medicine; it is never necessary to protect the health of the
mother to do this procedure.
Yet people will come down to this floor and say: Well, I can't be for
this because I need a health-of-the-mother exception and put up
``cases'' where this was done and, as a result of this, the mother was
able to have more children, was able to do other things; and if this
procedure were not done, then they would not have this opportunity.
I would not argue that this procedure could result in a positive
outcome for the mother's health. Certainly it could. But that is not
the question. The question here is, Is it necessary--the answer is,
no--to protect the health of the mother or the life of the mother.
And second, is it the best method? Clearly, given what we know about
this procedure and its profound implications on who we are as a
society, the answer has to be emphatically--I hope from this body,
which is so concerned about the consuming problem of violence in our
society--I think a group of people who stand up and complain about
shootings at Columbine will look at this and say: Wait a minute. If
we're saying this kind of brutality is OK, if the Senate and the
President of the United States say this kind of brutality of our
children is OK, then how in the world can we be aghast when other
violence is done to our children?
If we can stand here, with straight faces, and with passion in some
cases, and argue that this kind of execution is not only legitimate but
preferable, proper, constitutional, necessary, how can we be even the
least surprised that young people, looking at what goes on in the world
around them--obviously, they get a lot of bad messages from Hollywood
and from the media, but they only need to look to the Senate and to
this President to get their cue. The cue is violence is OK, as long as
there is some purpose to be served. And the purpose is to make sure we
don't have a chink in the armor of abortion rights. That is the
purpose.
The question is, Why are they fighting this so hard? What is really
the problem? Why are they fighting what is an abomination? It is
uncomfortable to talk about it. I am sure for those listening it is
very difficult to listen. This is not a pleasant subject. Why would you
want to get up year after year and fight this issue? What is the great
cause at stake that we have to draw the line in the sand?
They will argue it is the health of the mother. It is not true. That
has never stopped them from arguing that. But when you have the people
who perform the abortions saying under oath that it is not true, it is
darn hard to come here and say this is why we want to do it, and for
those of us who have to listen to it, to say: Is this really what is at
stake? Is this really the issue? Or is there something else going on?
Is there an agenda?
I can tell you what the agenda is on our side. The agenda is very
simple. At a time when we are faced with senseless, irrational
violence, with a culture that is insensitive to life and promotes death
through our music, through videos, just a little beacon of hope, a
little grain of sand of affirmation that life is, in fact, something to
be cherished, not to be brutalized; that there are lines in our society
that we can't blur, that we shouldn't cross, because when we do that,
we throw in doubt, for millions of children and adults, the issue of,
well, maybe this isn't so wrong. We cloud the issue, the issue of life
for children that are 3 inches away from constitutional protection.
Don't you think that is a good place to draw the line? Don't you think
that is a reasonable place to say, OK, enough is enough?
No one is standing here arguing overturning Roe v. Wade. In fact, I
will make the argument, this is legitimate under Roe v. Wade. There is
nothing here that will, even if it goes to the Court, overturn Roe v.
Wade. It is not our intention with this act.
This act is an attempt, and I would argue a feeble attempt--many of
you listening were around 30, 40 years ago. Could you imagine walking
onto the Senate floor 40 years ago, turning on the television and
seeing Walter Cronkite report on the debate on the Senate floor about
whether this should be legal in America? Can you imagine 40 years ago
that we would even have a debate in the Senate about whether this would
be allowed in America?
There isn't a person in the Senate who, 40 years ago, would have said
this is OK. They would have been appalled. Well, maybe in Nazi Germany
or maybe in the Soviet Union, but in America, this? No. But how far we
have come. How much more civilized we have become. How culturated we
have become that now 40 years hence we can have these kinds of rational
debates and people can come to the floor of the Senate and say that
thrusting a pair of scissors in the base of the skull of a little baby
is OK. How far we have come. How humanity has grown and developed. How
sophisticated we are that we can find precise legal arguments that will
weave us through this web of destruction and say, but it is OK.
Americans go to sleep at night knowing that thousands of children,
almost born, inches from reaching toward that constitutional
protection, can be executed. We are all better for it. We are better as
a society for this.
They will not say that, but underneath the argument is this: This
being legal is better for America. When people come and cast their
votes, you will have to cast the vote saying that allowing this to
occur in America is better for us. It is preferable in the United
States of America that this occurs. We want this to continue. We
believe this is right. We believe this is just. We believe this is
humane. We believe this is in the best spirit of America, liberty, and
freedom.
How twisted, how twisted we have become. How we contort ourselves to
find that path through rights to allow this to be the best that we are
in America. We are better than that. This country stands for higher
ideals and principles than that. A majority of the Senate will agree
with me. A majority of the House will agree with me, a majority of
Americans. But that is not enough.
So this contorted construction of freedom will continue to be legal.
Can you envision our Founding Fathers with these charts in front of
them saying: This is the product of liberty? This is the product of the
high ideals that we suffered through in revolutionary, civil, and major
world wars to preserve? This is what it has come to? This is the
personification of liberty in America today? It is no wonder we are
concerned when we tuck our children into bed at night and we see what
kind of world is ahead of them. How much more will we be able to twist
freedom and liberty to destroy their true freedoms? I tuck five little
ones in bed every night. I wonder, I wonder what is in store for them,
if we continue as the Senate, the greatest deliberative body
[[Page S12867]]
in the world, to allow this wanton destruction of the most vulnerable
in our society. Where are we headed?
Mr. President, I yield the floor.
Mrs. BOXER addressed the Chair.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. BOXER. Mr. President, for those who have followed this debate
since it opened about an hour ago, you have heard that those of us who
will fight on the floor of the Senate for moms, for our daughters, for
their health, for their lives, are somehow evil and bad people. You
have heard in this debate, in some of the most inflammatory language,
which I think is, in essence, very dangerous for this country, that
those of us who stand up to fight to make sure that every child is a
wanted child, that every child who comes into this world is wanted and
loved, that every woman has a right to be respected--you have heard
that somehow we want to bring violence to children. You have heard the
word ``executioners'' relating to doctors who take an oath ``to do no
harm,'' who save lives, who bring babies into the world. Executioners.
I am stunned by the tenor of the debate. I am troubled by the tenor of
the debate.
The majority leader was sent a letter by a number of groups asking
him to please not bring this issue up this week, could he wait a week.
They noted that on Saturday, we will have the 1-year anniversary of the
assassination of a doctor, Dr. Barnett Slepian, who was murdered in his
home, through a window, by a coward who took this man from his family.
The majority leader was told there have been five sniper attacks on
U.S. and Canadian physicians who performed abortions since 1994. All of
those victims were shot in their homes by a hidden sniper who used a
long-range rifle. Dr. Slepian was killed, and three other physicians
were seriously wounded in these attacks--for making sure that women had
their legal rights protected and their health protected.
I think it is sad that we would have this debate, with the most
inflammatory language I have ever heard on the Senate floor to date. I
know the FBI and the Attorney General are going to be ever more
vigilant because of this debate. I know that and I am glad about that.
It is very hard for me to imagine that we could not have put this off a
week. Here we are. And instead of having a debate that should be based
on the merits of the discussion, it has been inflamed.
Yesterday, I said if 100 doctors walked into the Senate and sat down
in our chairs to practice being Senators, they would be arrested and
dragged out of here. Yet here we are in the Senate --100 of us, and not
one of us an obstetrician, not one of us a gynecologist--deciding what
procedures should or should not be used, and under what circumstances,
in a matter that should be left to the medical profession, left to the
families of this country, left to loving moms and dads. So here we are
practicing medicine in the Senate and not even doing a very good job of
it, I might say, if you listen to the physicians who have written to us
on this matter.
I am going to place into the Record several letters from
organizations consisting of physicians. Here is one from the Society of
Physicians for Reproductive Choice and Health--the people my colleague
has called ``executioners.''
Ladies and gentlemen of the Senate and of this country, these are the
people who bring our children into the world. These are the people who
save their lives when they are hurt. These are the people we run to
when they have to go to an emergency room.
This is the statement:
In what it claims as a tribute to mothers, the United
States Senate today will vote on a bill criminalizing a
procedure . . .
. . . legislators supporting this ban are not celebrating
mothers--but, in fact, are dishonoring and condemning
motherhood by placing pregnant women at greater risk for
infertility and death.
These are the people to whom we turn when we are sick, and they are
telling us not to pass the Santorum bill. They bring back the days
before 1973:
Prior to abortion's legalization in 1973, the leading cause
of maternal death in this nation was illegal abortion. As
Congress attempts to ban abortion, procedure by procedure,
more and more pregnant women will die. As physicians
concerned about the health and lives of our women patients,
we believe this is a shameful celebration of motherhood.
I ask unanimous consent that letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Statement On Santorum Bill (H.R. 1122/S. 6) Banning a Procedure Known
Medically as Dilatation and Extraction, May 20, 1997
In what it claims is a tribute to mothers, the United
States Senate today will vote on a bill criminalizing a
procedure known medically as dilatation and extraction.
Ironically, legislators supporting this ban are not
celebrating mothers--but, in fact, are dishonoring and
condemning motherhood by placing pregnant women at greater
risk for infertility and death.
Congressional supporters of this ban are hiding from women
and their families the true consequences of this bill: it
makes unavailable to physicians and their women patients a
safer, less risky medical option during health- and life-
threatening events that can occur during pregnancy. Women,
their families and their physicians must be alarmed by
Congressional plans to deny a medical option that preserves
women's health and lives.
Contrary to popular belief, it already is illegal to
perform a third trimester abortion on a healthy mother
carrying a healthy fetus. Abortion opponents who present
graphics of darling, full-developed babies being aborted are
gravely misleading and misinforming the public and
policymakers. Opponent admit these graphics are false, but
continue to use them anyway.
Annually, 300 to 600 third trimester post-viability
pregnancies are terminated legally for specific medical
complications that can develop during the pregnancy's course.
These conditions pose severe health and life threats to the
women--including infertility and death. When maternal
complications develop, these pregnancies are terminated only
after attempts are made to deliver the fetus safely while
preserving the health and life of the mother. Decisions to
terminate pregnancy at this stage are not considered by one
physician alone. In fact physicians and their patients seek
second and third medical opinions.
Some severe complications that can affect pregnancy
include; The development of cancer during pregnancy; severe
pre-eclampsia (toxemia) accompanied by kidney or liver
failure; uncontrollable health failure; long-standing insulin
dependent diabetes causing declining renal kidney function;
Lou Gehrig's disease and other conditions causing respiratory
failure; or, severe hypertension (high blood pressure)
diseases causing maternal organ failure and maternal death.
The severity of these complications may make labor or
caesarean section fatal.
Approximately one percent of all legal abortions occur late
in the second trimester before fetal viability. Some are
performed on women facing medical complications described
earlier. Other women carry fetuses with serious genetic or
developmental anomalies, including abnormal fetal kidneys,
heart and brains--complications not usually detected until
the second trimester.
Legal late second trimester abortions also are performed on
women who, lacking health insurance and access to healthcare
facilities, are unaware they are pregnant or unable to
terminate the pregnancy earlier. Some women with irregular
menstrual cycles may be unaware of their pregnancy. For some
of these women, dilatation and extraction is the safest
medical option because the fetal head is disproportionately
large and trapped in the dilated cervix during delivery.
Banning dilatation and extraction will force competent
physicians to choose riskier medical options that increase
danger to patients. For women, these options are lengthy and
painful, including the placement of surgical instruments into
the uterus, increasing the risk of uterine perforation and
infertility. Another option uses medication to induce labor,
increasing the risk of maternal death from blood clotting
failure and hemorrhage.
Prior to abortion's legalization in 1973, the leading cause
of maternal death in this nation was illegal abortion. As
Congress attempts to ban abortion, procedure by procedure,
more and more pregnant women will die. As physicians
concerned about the health and lives of our women patients,
we believe this is a shameful celebration of motherhood.
Physicians for Reproductive Choice and Health oppose the
Santorum Bill (H.R. 1122/S.6).
Mrs. BOXER. Mr. President, we have a letter from the executive vice
president of the American College of Obstetricians and Gynecologists.
These are the men and women who bring life into the world. These are
the men and women who deliver our babies. I find it interesting when
the Senator from Pennsylvania talks about breach births--I had a breach
birth; I don't think he ever did, and I know what it is. I know what
the risks are. I am a mother of two beautiful children. I am a
grandmother of one beautiful grandson, and I tuck him in and I read him
stories and I love him. I want him to
[[Page S12868]]
grow up in a world where families are respected, where physicians are
respected, where no one stands up on the floor of the Senate and calls
a physician an executioner. I don't think that is a good country. I
don't think that is respect. I don't think that brings healing to this
issue.
The American College of Obstetricians and Gynecologists said:
[This bill] is vague and broad. . . . It fails to use
recognized medical terminology and fails to define explicitly
the prohibited medical techniques it criminalizes.
That is an important point. Bills just like this one have been ruled
unconstitutional 20 times. One of those decisions was in the State of
Arkansas, and I am going to share those decisions with you because I
think it is important. So many of us say: local control, let the States
decide.
The States have passed these laws, and not one of them yet has been
proven constitutional or declared constitutional. But they have been
declared unconstitutional because of what the doctors are saying--the
language in this bill is so vague. And the language in all those bills
is that they would, in fact, outlaw all abortion at any particular time
during the pregnancy.
So when my colleague from Pennsylvania says, well, we don't want to
overturn Roe v. Wade--and perhaps we will have a chance to vote on that
as well--but when he says that, that is not what the courts are saying.
The courts are saying his law does, in fact, make all abortions illegal
and would criminalize abortion.
I ask unanimous consent that this letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
The American College of Obstetricians and Gynecologists,
Women's Health Care Physicians,
Washington, DC, October 7, 1999.
Hon. Thomas Daschle,
Minority Leader, U.S. Senate,
Washington, DC.
Dear Senator Daschle: The American College of Obstetricians
and Gynecologists (ACOG), an organization representing 40,000
physicians dedicated to improving women's health, continues
to oppose S. 928, the ``Partial Birth Abortion Ban Act of
1999.'' ACOG urges the Senate to reject this legislation.
ACOG believes that S. 928, as amended, continues to
represent an inappropriate, ill advised and dangerous
intervention into medical decision-making. The amended bill
still fails to include an exception for the protection for
the health of the woman.
Further, the bill violates a fundamental principle at the
very heart of the doctor-patient relationship: that the
doctor, in consultation with the patient, based on that
patient's individual circumstances, must choose the most
appropriate method of care for the patient. This bill removes
decision-making about medical appropriateness from the
physician and the patient.
S. 928 is vague and broad, with the potential to restrict
other techniques in obstetrics and gynecology. It fails to
use recognized medical terminology and fails to define
explicitly the prohibited medical techniques it criminalizes.
In the most recent court action, the Eighth US Circuit Court
of Appeals ruled that the ``partial birth'' abortion laws in
three states were unconstitutionally vague.
Moreover, the ban applies to all stages of pregnancy. It
would have a chilling effect on medical behavior and
decision-making, with the potential to outlaw techniques that
are critical to the lives and health of American women. Chief
Judge Richard Arnold wrote in the Eighth Circuit decision
that, ``Such a prohibition places an undue burden on the
right of women to choose whether to have an abortion.''
Sincerely,
Ralph W. Hale, MD,
Executive Vice President.
Mrs. BOXER. Mr. President, there is a letter from the American
Medical Women's Association.
Are these executioners, too? They work in the medical field. They say
they are gravely concerned with governmental attempts to legislate
medical decisionmaking through measures that do not protect a woman's
physical and mental health, including future fertility, or fail to
consider other pertinent issues such as fetal abnormality. And they
strongly oppose governmental efforts to interfere with physician-
patient autonomy.
I ask unanimous consent that this letter printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Statement of the American Medical Women's Association on Abortion
Legislation in the 105th Congress
Alexandria, VA (May 20, 1997).--The American Medical
Women's Association, ``is committed to protecting the
reproductive rights of American women and has opposed any
legislative intervention for medical and or surgical care
decisions,'' says current AMWA President Debra R. Judelson,
MD. This week, AMWA reitrated its opposition to H.R. 1122 and
S. 6, which seek to ban a particular medical procedure.
It is the opinion of AMWA's Executive Committee that
legislative efforts to regulate abortion have been flawed.
Concerns in the following areas have prevented AMWA from
taking a position on recent legislative efforts focusing on
abortion in the 105th Congress.
AMWA is gravely concerned with governmental attempts to
legislate medical decisionmaking through measures that do not
protect a woman's physical and mental health, including
future fertility, or fail to consider other pertinent issues,
such as fetal abnormalities. Physicians and their patients
base their decisions on the best available information at the
time, often in emergency situations. AMWA strongly opposes
governmental efforts to interfere with physician-patient
autonomy.
It is irresponsible to legislate a particular test of
viability without recognition that viability cannot always be
reliably determined. Length of gestation is not the sole
measure of viability because fetal dating is an inexact
science.
AMWA resolutely opposes the levying of civil and criminal
penalties for care provided in the best interest of the
patient. AMWA strongly supports the principle that medical
care decisions be left to the judgment of a woman and her
physician without fear of civil action or criminal
prosecution.
Any forthcoming legislation will be carefully reviewed by
AMWA based on the criteria outlined above, and AMWA will seek
to ensure that there is no further erosion of the
constitutionally protected rights guaranteed by Roe v. Wade.
Says AMWA President Debra R. Judelson, MD, ``AMWA firmly
believes that physicians, not the President or Congress,
should determine appropriate medical options. We cannot and
will not support any measures that seek to undermine the
ability of physicians to make medical decisions.''
AMWA has long supported a woman's right to determine
whether to continue or terminate her pregnancy without
government restrictions placed on her physician's medical
judgment and without spousal or parental interference.
Founded in 1915, the American Medical Women's Association
represents more than 10,000 women physicians and medical
students and is dedicated to furthering the professional and
personal development of its members and promoting women's
health.
Mrs. BOXER. Mr. President, the American Nurses Association--are they
executioners or are they loving people who choose this field of work
because they want to make people well because they have compassion in
their hearts--what do they say about this?
They oppose the Santorum bill. They say it is inappropriate for
Congress to mandate a course of action for a woman who is already faced
with an intensely personal and difficult decision. They represent 2.2
million registered nurses. They ask us to defeat this.
I ask unanimous consent to have this letter printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
American Nurses Association,
Washington, DC, May 20, 1997.
Hon. Barbara Boxer,
United States Senate,
Washington, DC.
Dear Senator Boxer: I am writing to reiterate the
opposition of the American Nurses Association to H.R. 1122,
the ``Partial-Birth Abortion Ban Act of 1997'', which is
being considered by the Senate this week. This legislation
would impose Federal criminal penalties and provide for civil
actions against health care providers who perform certain
late-term abortions.
It is the view of the American Nurses Association that this
proposal would involve an inappropriate intrusion of the
federal government into a therapeutic decision that should be
left in the hands of a pregnant woman and her health care
provider. ANA has long supported freedom of choice and
equitable access of all women to basic health services,
including services related to reproductive health. This
legislation would impose a significant barrier to those
principles. It is inappropriate for Congress to mandate a
course of action for a woman who is already faced with an
intensely personal and difficult decision.
The American Nurses Association is the only full-service
professional organization representing the nation's 2.2
million Registered Nurses through its 53 constituent
associations. ANA advances the nursing profession by
fostering high standards of nursing practice, promoting the
economic and general welfare of nurses in the workplace,
projecting a positive and realistic view of nursing, and by
lobbying the Congress and regulatory agencies on health care
issues affecting nurses and the public.
The American Nurses Association appreciates your work in
safeguarding women's
[[Page S12869]]
access to reproductive health care and respectfully urges
members of the Senate to vote against H.R. 1122.
Sincerely,
Geri Marullo, RN,
Executive Director.
Mrs. BOXER. Mr. President, if someone wants to stand up here on the
Senate floor and attack a whole part of our America, and if they want
to use cartoons on the floor of the Senate to depict a woman's body,
that is up to them. But I ask the American people to be the judge both
of the substance of what is happening here, the techniques that have
been used, and the inflammatory level of the debate.
I want you to meet a real person. I want to picture a real face--not
a cartoon, but a real face--on the floor of this Senate. I want to tell
a little bit about her story.
This is Tiffany Benjamin:
My husband and I waited until we established in our careers
and could provide the best possible environment for a child.
In 1994, we were thrilled with the news that we were
expecting a baby. My first five months were joyous months of
pregnancy. During a routine checkup my physician performed a
standard AFT test. The results were abnormal. So my doctor
ordered another test. Unfortunately, this test was also
irregular. In my 20th week of pregnancy we discovered that
our child had trisomy 13.
In plain English, each cell of her body carried an additional 13th
chromosome. Doctors advised that her condition was lethal.
No one could offer us hope. Sadly we determined that the
most merciful decision for our child--
Our child in our family--
would be to terminate my pregnancy. Although the years have
passed, for us the depth of our loss is vivid in our mind. We
are astounded that anyone could believe that this type of
decision is made irresponsibly and without a great deal of
soul searching and anxiousness. These choices were
undoubtedly the most painful decisions of our lives. Please
don't compound the pain of other families like ours by taking
away our ability to make the difficult choices that only we
can make in consultation with our physician. Please reject S.
1692 and protect our families from this dangerous
legislation.
I ask you to look at Tiffany with her child. Does she look like an
executioner to you? Does she look like someone who didn't want to have
this child and suddenly woke up and said: I have changed my mind? No.
This is a loving woman, a loving family member. She had to have this
procedure, and this legislation would stop her from having it.
I want to tell you about another woman, Cindy, a 30-year-old mother
of five living in Kansas City who said very proudly that she is a
Catholic.
In June of 1998, Cindy noticed a lump on her neck and called her
doctor. Within weeks, she found that she had thyroid cancer and, after
surgery, began iodine radiation treatment. Contrary to medical
protocol, she was not given a pregnancy test prior to the radiation
treatment. Cindy's body did not respond to the radiation, and blood
results indicated her body still contained the deadly disease. After
returning to the hospital for another treatment, her blood was drawn
for a pregnancy test, but the staff did not wait for the results; they
gave her another iodine radiation pill.
Due to the radioactive iodine in her body, she was placed in an
isolation room. No one could enter--not her husband, or her nurses, or
her physician.
Two hours later, she received a phone call from her physician telling
her they had made a terrible mistake. Her pregnancy test came back
positive. She immediately started drinking water because the doctors
told her all she could do in an attempt to shield her baby from the
radiation was to drink a lot of water.
The next day, a second pregnancy test confirmed the first and a
sonogram was ordered. That is when Cindy and her husband learned that
not only was she 13 weeks pregnant but she was expecting twins, the
twins they had always hoped for.
Imagine the feeling of that family. Within hours, the family learned
that their babies would not survive, not grow, not develop. The
radiation her babies received was equivalent to the bomb dropped on
Hiroshima.
Cindy says:
We decided that termination would be best for our family
and our babies. Through our research, our insurance company
told us, however, that we were on our own.
And she adds:
You see, as a Federal employee my insurance will not pay
for elective abortions.
She says because this abortion was meant to preserve her health,
because of the votes in this Congress, she could not get help. She
says:
I have five little ones at home who depend on their mommy
ever day. I didn't want to have an abortion but I needed one.
And the abortion that I had would have clearly been banned by
this bill, and I thank God that this bill didn't tie my
doctor's hands.
Let me just say that again. This is a woman who is religious. This is
a woman who says to us thank God that bill wasn't law, the bill that
the Senator from Pennsylvania is fighting so hard to become law. She
says thank God it wasn't the law. She says this is clearly an intensely
private, torturous decision.
Are proponents willing to tie the hands of both parents and
physicians and say to a woman: You must carry your child to term
despite the fact that it has been determined the child won't live and
your health will be affected?
I have to say that these women who are proud to come forward to help
us in a very difficult issue deserve our thanks because here they are
being called the worst names in the book, being essentially told that
they don't love children, that they don't care about children, when in
fact these are loving moms and, in many cases, quite religious.
This is the third time the Republican leadership has brought this
bill before the Senate. Again, it is playing doctor without one
obstetrician or one gynecologist among us. The obstetricians and the
gynecologists say we shouldn't do this. The women who have had this
procedure say we shouldn't do it.
We are going to have a lot more debate. I know my colleague from
Illinois is here, and he has a very important piece of legislation to
offer. But before I give up the floor this time, I want to talk about
what has happened in the courts because my colleague from Pennsylvania
has made a statement I think that is fairly dismissive of what has
actually happened. He says some of the courts have upheld this
procedure and some have not.
I will discuss what the courts have done not because I am telling my
colleagues to vote against their conscience; if they want to vote for
something unconstitutional, that is their right. They ought to hear the
arguments made in the 20 States in which this particular procedure has
been called unconstitutional.
This chart shows which States have enjoined these bans. I put
``partial-birth abortion bans'' in quotes because there is no such
thing. This is the political terminology. Nearly every court to rule on
the merits of an abortion ban since the Senate last voted on the issue
has ruled this abortion ban is unconstitutional. These are the States
that have so far enjoined this Santorum-like legislation from going
into effect: Alaska, Arizona, Arkansas, Florida, Idaho, Illinois, Iowa,
Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey,
Ohio, Rhode Island, West Virginia, Wisconsin, and in Georgia and
Alabama there has been limited enforcement.
We have a string of decisions. I will read quotes of judges from
these States--and as so many of my colleagues have said, as our
President has said, we ought to listen to the States. Let's hear what
the State judges are saying when they have overturned these types of
bans.
First, from a Federal judge in Arizona:
The term ``partial-birth abortion'' is not a term found in
the medical literature.
Let me repeat that. The judge writes:
The term ``partial-birth abortion'' is not a term found in
the medical literature. The testimony of witnesses at trial
indicates that this term is ambiguous and susceptible to
different interpretations.
The important point is, when my colleague from Pennsylvania says he
only means it to be a handful of procedures, this particular judge,
Judge Bilby in Arizona says no, the term is so vaguely worded it could
apply to many other abortions, and that essentially would overturn a
woman's right to choose.
In Arkansas, Judge Richard Arnold says:
As we shall explain, ``partial'' delivery occurs as part of
other recognized abortion procedures, methods that are
concededly constitutionally protected. Under precedents laid
out by the Supreme Court, which is our
[[Page S12870]]
duty to follow, such a prohibition is overbroad and places an
undue burden on the right of women to decide whether to have
an abortion.
This is a judge in Arkansas saying the Santorum-type language is so
broad and the procedure is so broadly explained it could, in fact,
apply to any type of abortion. He ruled it unconstitutional.
In Illinois, U.S. District Court Judge Charles Kocoras, said:
First, the statute, as written, has the potential effect of
banning the most common and safest abortion procedures.
He looked at the Santorum-like bill and said it also was
unconstitutional.
U.S. District Court Judge Heyburn in Kentucky says:
By choosing words having a broader scope, the legislature
moved from arguably firm constitutional ground--banning a
very limited procedure use for late-term abortions--to a
quagmire of constitutional infirmity.
There is a common thread among the judges--by the way, from very
conservative areas of our country--who are saying the Santorum-type of
ban is so broadly worded it would take away a woman's right to choose
even at the early stages of pregnancy.
In Nebraska, Judge Richard Arnold says:
The law refers to ``partial-birth abortion'' but this term,
though widely used by lawmakers and in the popular press, has
no fixed medical or legal content.
It would also prohibit in many circumstances the most
common method of second trimester abortions . . . under the
controlling precedents laid down by court, such a prohibition
places an undue burden on the right of women to choose
whether to have an abortion.
For colleagues who say vote for Santorum; it doesn't take away a
woman's right to choose, we have 20 court decisions that say it does.
In certain States, they have stopped performing abortions because the
doctor was afraid he would be arrested for performing an early-stage
abortion.
In summing up, we were elected to be Senators. We have a lot of work
to do. We weren't elected to be the American College of Obstetricians
and Gynecologists. They have their own organization. We should vote
down this unconstitutional bill. If we do not--because I know this is
political--why else would it be before the Senate? This is politics at
its worst. This is the third time the President will veto this bill. We
all know we will have the votes to sustain that veto. Why go through
this if not for politics?
This is a debate we should not be having right now. It has been,
unfortunately, in my view, very divisive so far. I hope we can get back
on solid ground. Let Members not call people executioners; let Members
not call families unimportant; let Members not demean women, and say
the other side says the health of the woman is important. Yes, the
health of women, the health of men, the health of families, that should
be our paramount concern. We are not physicians. Within the context of
the law, Roe v. Wade, which was decided in 1973, let Members make the
decision as to what is best for our women, our families, and our
children.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I consider my service in the Senate
representing the people of Illinois to be the highest honor I have ever
been given. I continue to believe it is the very best job in American
politics. As I go back to my home State and meet with people who have
entrusted me with this responsibility, I literally thank them for
giving me this opportunity.
However, this debate may be one of the most painful aspects of
serving in the Congress, and specifically in the Senate, because it
raises before the Senate an issue which most Senators would rather not
look at again. In the course of 17 years, I have voted on this abortion
issue countless times. Each time has been a struggle.
I am sure those who are listening to this debate might question what
I just said. Don't you get used to it? Isn't it automatic? Don't you
just vote the same way you did last time?
That has never been the case for me. I have tried in every instance
to be honest about the specific debate that was involved. My views on
this issue have changed over the years as I have listened to the debate
of those with various positions.
I have come to a position now that I am at peace with personally.
Though I know that I am at peace, the people I represent may see
differently.
The best I can say in the course of this debate is what I am about to
say and what I am about to offer in terms of an amendment which
represents my best good-faith effort to deal with a painful issue. This
is not like most issues we face in the Senate. I can go home after a
week of working most times and people do not have a clue as to what we
have even talked about or debated. I can go to family reunions and get-
togethers and people do not ask me how did you vote on a certain bill
involving grazing rights in the West. It never comes up.
But this issue, the issue of abortion, is one that most Americans
have an opinion on because we have been confronted, since the Roe v.
Wade decision, with a huge national debate, a very divisive debate as
to whether the Supreme Court was correct or incorrect in giving a woman
in the United States the right to choose whether to have an abortion
procedure.
There are people dug in on both sides of this debate. What I am
saying, I am sure, is no surprise to anyone who observes it. There are
some who believe that Roe v. Wade was just plain wrong; that the
Supreme Court never should have legalized abortion procedures under any
circumstances. There are those on the opposite side of the spectrum who
believe that Roe v. Wade did not go far enough with respect to a
woman's right to choose and her privacy. I think you will find the
majority of Americans in between those two groups; struggling, on one
hand, I think, to keep abortion safe and legal but, on the other hand,
to put restrictions on it which are common sense.
The Senator from Pennsylvania comes before us today with a bill which
seeks to address one aspect. He has focused on one particular abortion
procedure. It goes by a lot of different names. The common parlance is
partial-birth abortion. There are some who say that is just a made-up
name for politics; it has nothing to do with medical terminology. But
for better or for worse, that is how this debate is characterized, the
partial-birth abortion debate, which has been around so many times on
this floor and in Congress.
It now has a further shorthand, PBA. I do not think that is fair to
the Senator offering the amendment, the Senator from Pennsylvania, nor
to the gravity of the issue. This is a serious issue. The Senator from
Pennsylvania focuses on this procedure which I will tell you, as I view
it, is a gruesome procedure. It is gruesome. I don't know if his
description of it is accurate, but if it is close to accurate it is
gruesome.
He believes this procedure should be banned at every stage of
pregnancy. Let me address that from two perspectives. First, there has
been a lot said on the floor already this morning as to whether or not
this kind of procedure is ever medically necessary. I am not a doctor.
I cannot reach that conclusion on my own. I have to turn to others for
advice.
Let me tell you what I did last year, in July. I had just read an
article published in the Chicago Tribune in my home State that quoted
former Surgeon General Everett Koop. Because of that article and what I
read and my respect for him, I sent a letter. My letter was addressed
to Dr. Ralph Hale, the executive director of the American College of
Obstetricians and Gynecologists here in Washington.
I am going to read the letter because I want you to understand I
tried my very best to give an open-ended opportunity for this medical
doctor in the specialty of obstetrics and gynecology to tell me his
professional opinion. Let me read the letter:
Dear Dr. Hale, enclosed is a commentary that appeared in
yesterday's Chicago Tribune. It quotes former Surgeon General
C. Everett Koop as saying that ``Partial-birth abortion is
never medically necessary to protect a mother's health or
future fertility.''
I am writing to request your College's response to this
statement. In the medical judgment of the experts among your
members, is it true that partial-birth abortion is never
medically necessary to protect a mother's health or future
fertility?
As I am sure you know, this is a matter of great concern to
many members of Congress including myself, and I would
appreciate your timely response to this important question.
I sent that letter on July 28, 1998. I received a reply on August 13,
1998,
[[Page S12871]]
from Dr. Ralph Hale, executive vice president of the American College
of Obstetricians and Gynecologists. When I finish reading it, I will
ask it be printed in the Record. But I would like to read it in its
entirety so there is no doubt I asked an open-ended question of experts
in the field, and this is Dr. Hale's reply:
Dear Senator Durbin: I am writing in response to your July
28th letter in which you asked for the College's response to
Dr. Koop's statement that ``Partial-birth abortion is never
medically necessary to protect a mother's health or future
fertility.''
The letter went on to say:
The College's position on this is contained in the
statement of policy entitled Statement on Intact Dilation and
Extraction. In that statement we say, ``Terminating a
pregnancy is performed in some circumstances to save the life
or preserve the health of the mother.'' It continues, ``A
select panel convened by ACOG could identify no circumstances
under which this procedure, as defined above, would be the
only option to save the life or preserve the health of the
woman.'' Our statement goes on to say, ``An intact D & X
however, may be the best or most appropriate procedure in a
particular circumstance to save the life or preserve the
health of a woman, and only the doctor, in consultation with
the patient based upon the woman's particular circumstances
can make this decision.'' For this reason, we have
consistently opposed ``partial-birth abortion'' legislation.
It goes to say:
Please find enclosed ACOG's statement on intact D & X.
Thank you for seeking the views of the College. As always, we
are pleased to work with you.
Sincerely,
Ralph W. Hale, MD,
Executive Vice President.
Mr. SANTORUM. Will the Senator yield for a question?
Mr. DURBIN. I yield for the question.
Mr. SANTORUM. I thank the Senator very much for yielding. The reason
I am going to ask the question is an article written by two
Northwestern health care physicians from Northwestern University in
Evanston, IL, who cited the same statement out of the select panel.
They went on to say, after they quoted what you quoted in your letter:
However, no specific examples of circumstances under which
intact D&X will be the appropriate.
In fact, in subsequent communications with ACOG and others, we have
asked, give us one set of medical--any set of medical circumstances
where you believe that this ``may be--whatever.''
Never have we gotten any circumstance where that was the case. So
they say it may be, but no one to date has provided any circumstance,
as hypothetical as you want, where, in fact, it would be.
Just to say it may be without giving evidence of what it was, I think
my question is--I think the next question to which you hopefully can
get an answer, I can't--you say it may be. Give me a for instance. So
far, we have not been able to get any for instance.
Mr. DURBIN. I thank the Senator from Pennsylvania. That is a
reasonable question.
I would say to him, though, there is clearly, at least, a difference
of opinion within the medical community as to medical necessity.
Dr. Koop, whom I respect very much and have worked with on a lot of
issues, says: Never. The American College of Obstetricians and
Gynecologists says it is never the only thing you can do, but it may be
the most appropriate thing to do for the health of the mother. And
then, of course, you go on to say give us some examples. I think that
is reasonable.
I ask we continue the debate at least to find out what those examples
might be. That is reasonable.
But you have to say at this moment in time there at least is a
difference of opinion, based on the letters introduced by the Senator
from California, among medical professionals as to whether this is ever
medically necessary or the most appropriate thing.
This raises a policy question. When we get to the point where doctors
differ about the use of a procedure, is it appropriate, then, for the
Senate to decide that we will ban a procedure, a medical procedure?
That is what the Santorum amendment does. I think the Senator from
Pennsylvania would concede it.
He attempts to ban the use of this procedure. Based on this letter I
received from the American College of Obstetricians and Gynecologists,
to do so would say to doctors in some circumstances: You may not use
the safest procedure for my wife, my daughter, my sister; Congress has
banned that procedure. That is where I struggle with what the Senator
from Pennsylvania is attempting to do.
I am not the doctor. I will not play one in the Senate. When I rely
on doctors' opinions, they are at best divided on the question.
Let me address the second issue in relation to the Santorum
legislation, and that is why we are doing this again and again. I do
not question the sincerity of the Senator from Pennsylvania. I know his
feelings on this subject are heartfelt, but I do question why we
continue to bring this same legislation time and time again before the
Senate, not because it is not important to the Senator from
Pennsylvania and others, but, frankly, we have been getting readings
from courts across America that this language he is proposing today is,
on its face, unconstitutional.
We are spending our time in a debate over a bill which 19 States have
stricken. These States have all tried to model some type of legislation
based on his banning this procedure, and time after time, Federal
courts have come forward and said, no, this is unconstitutional. The
judges making the decisions are not so-called liberal jurists. You will
find within their ranks appointees of President Reagan and President
Bush, some very conservative jurists who say on its face this is not
constitutional.
We took an oath as Members of the Senate to uphold that Constitution.
There are times when interpretations can differ as to what that oath
means. But in this case, the Santorum legislation before us has
consistently been stricken by the courts, I believe, with only one
exception, in the United States. Because of that, I have to ask this
question, not questioning the Senator's sincerity, but why are we doing
this? Why are we engaged in this debate over language which time and
time again has been found unconstitutional and enjoined in my home
State of Illinois and across the Nation?
This is a political exercise. It is not an attempt to pass a bill
which will become a law. Forget for a moment the President's veto, if
you will, and take a look at the merits of the legislation which time
and time again has been found by the courts to violate the
Constitution.
I would think that at this point in time, the author, whose feelings
on this are heartfelt, would have changed his approach, changed his
language, tried to address some of the constitutional questions, but it
has not happened. We get a rerun every year. This is all about a record
vote. This is all about raising this issue for public consciousness and
a record vote of the Members of the Senate.
Some people want a scorecard. Some people want to use it politically.
So be it. That happens around here. It is a shame that it happens on an
issue of this gravity and importance because, honestly, I do believe
there are things we can and should do which will address what I raised
earlier. The feeling of the vast majority of Americans is that
abortions should remain safe and legal and that restrictions on
abortion should be in place only when necessary.
I am going to offer an amendment shortly which addresses my approach
to this. As I said earlier, although I am honored to have nine
cosponsors, nine other Senators who join me in this amendment--it is a
bipartisan amendment--including the two Senators from the State of
Maine, both Republican, I do not suggest it is the point of view of
anyone other than ourselves. A vote will demonstrate whether I am right
or wrong. I hope a majority sees this as a reasonable way to bring this
contentious debate to a constitutional and fairminded conclusion.
If we do not, I predict we will have another vote next year on the
unconstitutional Santorum legislation and perhaps in years in the
future. But what will we have achieved? Contentious, painful debate
with no resolution other than a political scorecard, and that for me is
a troubling outcome.
I hope we can find a better way to do it because I believe there is a
more sensible way. Let me tell you why I think there is.
[[Page S12872]]
I am going to offer an amendment which addresses not an abortion
procedure but addresses a stage in pregnancy. It is a stage which is
known as postviability, that moment in time where the decision is
reached that the fetus can sustain survival outside the womb with or
without artificial support. That is a moving target. Viability has
changed because medicine has changed. Go into any neonatal intensive
care unit in America and look at the size of the babies who are
surviving. They are smaller than your hand, tiny little babies who are
surviving.
Viability is a moving target, and it was a standard that was used in
the Roe v. Wade decision. They said until that moment in time when that
fetus is viable, could survive outside the womb, then there are certain
legal rights in this country. But once viability is reached, those
rights change, and we start acknowledging the fact that this fetus has
now become a potential human being at birth. Roe v. Wade said we will
define the laws of America based on viability.
The problem with the Santorum legislation, the reason why this bill
and versions similar to it have been found unconstitutional time and
again, is they refuse to accept this basic premise, the premise of Roe
v. Wade, the premise of existing law in this country. They will not
acknowledge that you should have a law banning a certain procedure only
after viability. Each time it is stricken because it would, in fact,
restrict the right to abortion before viability, before the fetus can
survive. Court after court after court has stricken down State laws
that have followed this Santorum model. Yet here we are again.
My amendment, the one which I will offer to the Santorum bill,
accepts the Roe v. Wade premise that any changes which we are going to
make have to be consistent with Roe v. Wade, and this is what it says:
Any late-term abortion--that is, an abortion after viability--is
disallowed or prohibited under law. We are talking usually 7th, 8th,
9th month of gestation. Those abortions are prohibited under law except
in two specific cases: where continuing the pregnancy threatens the
life of the mother or in those cases where continuing the pregnancy
poses a risk of grievous physical injury to the mother. That is it.
Grievous physical injury. There are those who disagree with me and say
it should include emotional injury as well. I have drawn this line at
physical injury.
Here is why I believe this is a reasonable standard: At this late
stage in the pregnancy, the 7th, 8th, or 9th month, I believe Roe v.
Wade tells us we have to look at the pregnancy in different terms. We
are now postviability. We are now in a position where the fetus can
survive. In those circumstances, what I have said is, the only reason
legally you could terminate the pregnancy is if continuing it could
literally kill the mother or continuing it could subject her to the
possibility of grievous physical injury, which is defined in the
amendment.
I go on. One of the objections customarily made is that if you allow
a doctor to certify that a mother's life is at stake or she runs the
risk of grievous physical injury if the pregnancy continues, you are
playing right into the hands of the people who perform the abortions.
I have heard this argument so many times on the other side of the
aisle. They argue doctors will say anything, the ones who perform these
procedures, because they just want to make the money; they don't care.
I take an additional step. I require a second doctor to certify. You
will have two doctors in those decisions, two doctors who come forward
and say: If this pregnancy continues, this mother could die, or, if
this pregnancy continues, this mother could risk grievous physical
injury.
What risks do these doctors take if they are falsifying this
information? Substantial fines and the suspension of their licenses to
practice medicine are included in this amendment. It is very serious.
When we get to this stage in the pregnancy, I do believe the rules
should be a lot stricter. That is why I am offering this as an
alternative, one which I believe deals with some very fundamental
questions.
S. 1692 is the bill offered by Senator Santorum. We have to ask
ourselves several questions:
Should just one or all postviability abortion procedures be banned?
Senator Santorum addresses one. The amendment I offer addresses all
postviability abortion procedures.
No. 2: Should a mother's health be protected throughout pregnancy?
Under the Santorum legislation that is before us, the mother's health
is not an issue; only if her life is at stake could you engage in
certain procedures. In the amendment I offer, it will protect a
mother's life and a mother's health, the health in terms of the risk of
grievous physical injury.
No. 3: Should a woman's constitutional right to choose before
viability be preserved? There are differences of opinion on this.
Perhaps the Senator from Pennsylvania has a difference of opinion. But
Roe v. Wade said--and I agree--that previability, a woman, in
consultation with her doctor, her husband, her family, and her
conscience, has the right to make this decision. They protect that
right in Roe v. Wade.
Oh, I know there are those who disagree. I respect that. I have been
in lots of debates with them. That is where I come down. The reason the
Santorum language has been rejected in court after court after court as
unconstitutional is that, I believe, those on his side just do not
accept the basic premise that, previability, this is a decision, a
choice, to be made by a mother and her doctor.
As I said, I respect their position, but as long as they fly in the
face of this basic principle, as long as they defy Roe v. Wade, with
the language in the Santorum bill or the language in the State
legislation, it will continue to fall time after time after time; we
will continue to go through these political exercises; we will debate
until our voices are gone. Then we will have a vote, and then we will
go on to the next item of business. And, unfortunately, we will have
missed an opportunity to do something that is meaningful. That is why I
offer this amendment.
My amendment--I will go to the second chart--in comparison to the
Santorum approach, can be spelled out with three specifics.
The Santorum approach bans only one procedure and allows others in
its place. Make no mistake, if the Senator from Pennsylvania is
successful someday in somehow enacting this legislation, he will not
even tell you that is going to stop abortion from occurring. He deals
with one procedure. My amendment bans all postviability abortions
regardless of procedure.
The Santorum bill violates a woman's constitutional right to have her
health protected. We preserve exceptions for life and health of the
mother--narrowly defined.
The Santorum approach violates a woman's constitutional right to
choose under Roe v. Wade before viability. My amendment specifically
protects a woman's constitutional right to choose before viability.
Let me tell you what I am talking about when I talk about grievous
injury. Grievous injury in this amendment is narrowly defined. And I
quote:
a severely debilitating disease or impairment specifically
caused or exacerbated by the pregnancy; or
an inability to provide necessary treatment for a life-
threatening condition.
What could that be? You can all understand the first part: If
continuing the pregnancy could kill the mother is clear. But what would
the second one be? What if you diagnosed a mother, during the course of
her pregnancy, with serious cancer? And what if you found continuing
the pregnancy somehow compromised your ability to treat her for that
cancer? That is what I am driving at here, to make sure it is serious
and grievous, because we are literally talking about late-term, where I
think the rules should be much stricter, as does the Court in Roe v.
Wade.
My amendment also requires the attending physician who makes the call
on these decisions to have the benefit as well--and it requires it--of
an independent physician to certify, in writing, that in their medical
judgment the continuation of the pregnancy would threaten the mother's
life or risk grievous injury to her physical health.
I make an exception. I want to make it clear for the record. The
certification requirement by the doctors can be waived in a medical
emergency. But the physician would have to subsequently certify, in
writing, what specific medical condition formed the
[[Page S12873]]
basis for determining that a medical emergency existed.
This legislation will reduce the number of late-term abortions. In
contrast, the so-called partial-birth abortion ban will not stop a
single abortion at any stage of gestation. The partial-birth abortion
ban, by prohibiting only one particular procedure, will merely induce
physicians to switch to a different procedure that is not banned by
Senator Santorum.
Other procedures, such as induction, hysterotomy, or dilation and
evacuation, can all pose a greater risk to the mother's health in
certain cases. My alternative amendment will stop abortions by any
method after a fetus is viable, except when medical necessity indicates
otherwise.
Can we or should we try to define ``viability'' in this? I did not.
And the courts have warned us: Don't even try. That is a medical
judgment and, as I mentioned earlier, is a moving target. Viability
today, in other words, fetal survivability today, is different from
what it will be tomorrow or next month because these procedures are
changing so dramatically in terms of saving the fetus and giving it an
opportunity for life.
My alternative fits clearly within the constitutional parameters set
forth by the Supreme Court for government restriction of abortion. In
Planned Parenthood v. Casey, the Supreme Court reiterated Roe's
determination that, after viability, the State may limit or ban
abortion.
In contrast, the partial birth abortion ban, by prohibiting certain
types of abortions before viability, breaches the Court's standard that
the Government does not have a compelling interest in restricting
abortions prior to viability.
Nineteen Federal courts in 19 States have enjoined, have stopped, the
enforcement of the so-called partial-birth abortion bans Senator
Santorum brings to the floor. The States include: Alaska, Arkansas,
Arizona, Florida, Georgia, Idaho, Illinois, Iowa, Kentucky, Louisiana,
Michigan, Missouri, Montana, Nebraska, New Jersey, Ohio, Rhode Island,
Wisconsin, and West Virginia.
The Santorum bill is clearly unconstitutional. It will be struck down
by the courts and have no lasting impact.
My alternative retains the abortion option for mothers facing
extraordinary medical conditions, such as breast cancer discovered
during the course of pregnancy, uterine rupture, or non-Hodgkins
lymphoma, for which termination of the pregnancy may be recommended by
the woman's physician due to the risk of grievous injury to the woman's
physical health or life.
In contrast, the partial-birth abortion ban provides no such
exception to protect the mother from grievous injury to her physical
health.
To this point, this debate has been fairly general. To this point,
with the exception of the Senator from California, in noting a few
mothers who have been through experiences which they have shared
publicly, we have talked in generalities.
The Senator from Pennsylvania has brought up a chart that is not a
human depiction; it is an effort to put forth some drawing that depicts
this procedure.
We have talked about the Constitution. But I will tell you this. My
ambivalence over this issue--I was ambivalent when I first heard of
this procedure--was put to rest because I sat down with real people,
with mothers and fathers, husbands and wives, who faced medical
emergencies. And when each of them told me their stories, I thought to
myself: How can I possibly vote for the Santorum bill which would have
endangered the life of the woman I am talking to? That is why I opposed
his legislation in the past and will continue to do so. For the record,
I will at this point tell two or three stories that have been a matter
of public record and testimony before Congress and that I think
demonstrate when you get beyond the theory of this debate and to the
reality of it, life gets complicated, very complicated. It is easy to
step back and make a moral decision involving other people, if you are
not in their shoes. Listen to some of these and you will see what I
mean.
This is the story of Coreen Costello from Agoura, CA. Coreen, her
husband Jim and their son Chad and daughter Carlyn live in Agoura, CA.
Coreen is a full-time stay-at-home wife and mom. She describes herself
as a registered Republican and very conservative. She does not believe
in abortion. In fact, she never thought she would be testifying before
Congress supporting an abortion procedure, which is exactly what she
did, on March 21, 1996, before the House Judiciary Subcommittee on the
Constitution.
In March 1995, the Costellos were joyfully expecting their third
child. However, when she was 7 months pregnant, Coreen began having
premature contractions and had to be rushed to the hospital. After
reviewing the results of the ultrasound, Coreen's doctor informed her
he did not expect the baby to live. Coreen's child, a girl she had
named ``Katherine Grace,'' was unable to absorb the amniotic fluid. As
a result, the fluid was puddling into Coreen's uterus. Katherine Grace
had a lethal neurological disorder and had been unable to move for
almost 2 months. Her chest cavity was unable to rise and fall to
stretch her lungs and prepare them for air. It was as if she had no
lungs at all. Her vital organs were atrophying. Katherine Grace was
going to die.
A perinatologist recommended terminating the pregnancy. All the
doctors agreed. The Costellos' safest option was an intact D&E, the
very procedure banned by this bill by the Senator from Pennsylvania.
For Coreen and her husband, this was not an option. They chose to wait
to go into labor naturally, which wouldn't be long. Due to the excess
amniotic fluid, a condition called polyhdramnios, premature labor, was
imminent. Despite the difficulty of knowing her baby was going to die,
Coreen continued with the pregnancy. Over the course of the next few
weeks, she saw many experts. If possible, the results were even grimmer
than those she had earlier.
Her baby's body was rigid and wedged in a transverse position in her
womb. Most babies are in a fetal position. Katherine Grace's position
was exactly the opposite. It was as if she were doing a swan dive. The
soles of her feet were touching the back of her head. Her body was in a
U-shape. Due to swelling, her head was already larger than that of a
full-term baby. Coreen, her mother, did daily exercises trying to
change Katherine Grace's position so she could be delivered naturally.
Meanwhile, the amniotic fluid continued to puddle in Coreen's uterus.
In the ensuing weeks, the condition had grown worse. Everyone started
to fear for the mother's health. The mother could no longer sit or lie
down for more than 10 minutes because the pressure on her lungs was so
great. During one of her last ultrasounds, Coreen's doctor told her she
could not deliver the baby via caesarean under the circumstances
because the risk was too great. The doctor told Coreen there was a
safer way for her to deliver. It was at this point Coreen realized this
was not a choice anymore, that it was not up to her or her husband.
There was no reason to risk leaving her children, Chad and Carlyn,
motherless, if there was no hope of saving their new baby.
The Costellos drove to Los Angeles for a D&E. They expected a cold
gray building. They found a doctor and a staff willing to help them. It
was at this point Coreen realized she had done the right thing. This
was the safest thing for her. The fact this option was open to Coreen
is important in this story. This option would be closed to her by the
Santorum bill.
After the procedure, she went on to say Katherine Grace was
beautiful. She was not missing part of her brain. She had not been
stabbed in the head with scissors. She looked peaceful and she did not
suffer. Because of the safety of this procedure, Coreen became pregnant
again with another baby, after losing Katherine Grace. Thanks to the
skill and compassion of the doctors and the procedure she was forced to
use under these extraordinary circumstances, Coreen was able to have a
healthy baby.
If you outlaw the surgical procedure, which the Santorum bill seeks
to do, women such as Coreen will be denied the safest and best medical
procedure they need under these emergency circumstances and their
ability to have more children and the happiness in life which children
bring us will be compromised severely.
The next story is about a lady who I met several times. I like her a
lot. Her
[[Page S12874]]
name is Vikki Stella. She is from my home State of Illinois, and she
came to Washington, DC, to tell her story. Vikki, her husband Archer
and their two daughters, Lindsay, age 11, and Natalie, age 7, live in
Naperville, the western suburbs of Illinois right outside Chicago.
In 1993, Vikki discovered she was pregnant with a much-wanted son.
Because she is diabetic, she had more prenatal tests than most pregnant
women--amnios, ultrasounds, the works.
After the first round of tests, her doctor brought her in and said:
Your pregnancy is disgustingly normal. Then at 32 weeks, she went in
for another ultrasound, and everything fell apart--32 weeks into the
pregnancy. Vikki's son was diagnosed, the one she was carrying, with
nine major anomalies, including a fluid-filled cranium with no brain
tissue at all. Vikki's much-wanted son would never survive outside her
womb. The only thing keeping him alive was his mother's body.
The Stellas found the only answer they could: a surgical abortion
procedure performed by a physician in Los Angeles. Because Vikki was
diabetic, the controlled gentle nature of this surgery was much safer
than induced labor or a C section. Vikki's son died peacefully and
painlessly from the combination of steps taken in preparation for the
surgery. He was brought out intact and the family was able to hold him
and say their goodbyes.
That is a sad story about a couple that dearly wanted a baby and then
found late in the pregnancy this terrible news that the baby would not
survive and continuing the pregnancy could threaten the life of the
mother. The procedure Vikki Stella used is the procedure banned by the
Santorum bill, a procedure which her doctor thought was best for her.
There is an end to this story which is much happier. The ending to
the story is that in 1995, Vikki gave birth to a little boy. They
finally got their son. She came up to Capitol Hill with the little
fellow in a stroller and a big smile on everyone's face.
It is hard for me, when I hear the intense rhetoric of this debate,
to believe we are talking about the same thing. Some people refer to
this as ``cruel'' and ``execution-like.'' This family didn't ask for
this medical emergency. They wanted to have their little boy and be
happy, as all of us. They found late in the pregnancy something
terrible happened. When they went to the doctor, the doctor said, this
is what you have to do, and they did it. As painful as it was, they did
it. This bill says, no, this will not be a decision of the Stella
family, the mother and father in a room with the doctor. This will be a
decision of the Stella family in a room with the doctor and the Federal
Government. If that doctor decides this procedure is the safest to save
this mother's life or to give her a chance to have another baby, the
Santorum law will say, no, the Government will make the decision--not a
decision by a mother and father and a physician, a decision which has
to be so painful and emotional.
The last story is about a lady who testified before the Senate
Judiciary Committee in 1995 named Viki Wilson. She is a registered
nurse, 18 years of experience, 10 in pediatrics. Her husband Bill is an
emergency room physician--a nurse and a doctor.
We have three beautiful children: Jon is 10, Katie is 8,
and Abigail is in heaven with God.
In the spring of 1994, I was pregnant and expecting my
third child on Mother's Day. The nursery was ready and we
were very excited anticipating the arrival of our baby. Bill
had delivered our other two children, and he was going to
deliver Abigail. Jon was going to cut the cord and Katie was
going to be the first to hold her. She had already become a
very important part of our family.
At 36 weeks of pregnancy all of our dreams of happy
expectations came crashing down around us. My doctor ordered
an ultrasound that detected what all my previous prenatal
testing, including a chorionic villus sampling, an alpha
fetoprotein and an earlier ultrasound had failed to
detect, an encephalocele. Approximately two-thirds of my
daughter's brain had formed on the outside of her skull.
Viki Wilson said:
I literally fell to my knees from the shock.
This is a woman who was a nurse. When she heard this news, she
literally fell to her knees from the shock.
I immediately knew that [my baby] would not be able to
survive outside my womb. My doctor sent me to a
perinatologist, a pediatric radiologist, and geneticist, all
desperately trying to find a way to save [the baby girl].
Her husband is a doctor.
My husband and I were praying that there would be some new
surgical technique to fix her brain. But all the experts
concurred. Abigail would not survive outside my womb. And she
could not survive the birthing process, because of the size
of her anomaly, her head would be crushed and she would
suffocate. Because of the size of her anomaly, the doctors
also feared that my uterus would rupture in the birthing
process, most likely rendering me sterile. It was also
discovered that what I thought were big, healthy, strong baby
movements were, in fact, seizures. They were being caused by
compression of the encephalocele that continued to increase
as she continued to grow inside my womb.
Viki Wilson asked:
``What about a C-section?'' Sadly, my doctor told me,
``Viki, we do C-sections to save babies. We can't save
[Abigail]. A C-section is dangerous for you and I can't
justify those risks.''
The biggest question for me and my husband was not ``is
[Abigail] going to die?'' A higher power had already decided
that for us. The question now was: [Am I going to die? Is the
mother going to die with the child?] ``How is she going to
die?'' We wanted to help her leave this world as painlessly
and peacefully as possible, and in a way to protect my life
and health and allow us to try again to have more children.
They used the procedure that would be banned by the Santorum
legislation, which is before us today.
Mr. President, I give these three examples because I think it is
important for all of us, despite our values and principles and the
things we hold dear, to listen to people who struggle with these
tragedies. I didn't think in any of those cases, the 5 or 6 women I
have met who ever used this procedure to save their lives or protect
their health, that I ever detected selfishness or greed. In every
single case, these were mothers and fathers who wanted their babies.
They had painted nurseries, and they had given them names. They were
prepared for this joyful home coming that never happened.
This was not some casual decision. This was a decision that would
haunt them for a lifetime. Why had they been singled out to lose that
baby? Why did they have to go through the emotion and the trauma of all
the decisions that came with that? I can't answer that. All I can do is
sympathize with them for what they had to live through and to say to
myself as a Senator, do you really want to say that you know better in
terms of that mother's life and health? That is what the Santorum
legislation says. It says we know better; we want to be the doctors
here; we want to decide which abortion procedure you can use and which
you can't use.
As I said at the outset, I am not a doctor, and I am not going to
play one in the Senate. The doctors that I have relied on and the
patients I have spoken to have led me to conclude that the Santorum
approach is the wrong approach. I know that it will be an issue in
every campaign forever. I have already faced that. I am sure I will
face it again. But I am confident in my position that I can go back not
only to my home State but even to my family where this is debated and
explain to them why I have done what I am doing today.
This amendment I am offering is a sensible approach. It is one
consistent with Roe v. Wade. It deals with late-term abortion, and it
is one that is sensitive to a mother's health. It is one that attempts
to protect that mother when she runs the risk of grievous physical
injury.
Amendment No. 2319
(Purpose: To provide a complete substitute.)
Mr. DURBIN. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Illinois [Mr. Durbin], for himself, Ms.
Snowe, Ms. Collins, Mr. Torricelli, Ms. Mikulski, Mr.
Lieberman, Ms. Landrieu, Mr. Bingaman, Mr. Akaka, and Mr.
Graham, proposes an amendment numbered 2319.
Mr. DURBIN. 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 as follows:
Strike all after the enacting clause and insert the
following:
[[Page S12875]]
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Late Term Abortion
Limitation Act of 1999''.
SEC. 2. BAN ON CERTAIN ABORTIONS.
(a) In General.--Title 18, United States Code, is amended
by inserting after chapter 73 the following:
``CHAPTER 74--BAN ON CERTAIN ABORTIONS
``Sec.
``1531. Prohibition of post-viability abortions.
``1532. Penalties.
``1533. Regulations.
``1534. State law.
``1535. Definitions
``Sec. 1531. PROHIBITION OF POST-VIABILITY ABORTIONS.
``(a) In General.--It shall be unlawful for a physician to
intentionally abort a viable fetus unless the physician prior
to performing the abortion--
``(1) certifies in writing that, in the physician's medical
judgment based on the particular facts of the case before the
physician, the continuation of the pregnancy would threaten
the mother's life or risk grievous injury to her physical
health; and
``(2) an independent physician who will not perform nor be
present at the abortion and who was not previously involved
in the treatment of the mother certifies in writing that, in
his or her medical judgment based on the particular facts of
the case, the continuation of the pregnancy would threaten
the mother's life or risk grievous injury to her physical
health.
``(b) No Conspiracy.--No woman who has had an abortion
after fetal viability may be prosecuted under this chapter
for conspiring to violate this chapter or for an offense
under section 2, 3, 4, or 1512 of title 18.
``(c) Medical Emergency Exception.--The certification
requirements contained in subsection (a) shall not apply
when, in the medical judgment of the physician performing the
abortion based on the particular facts of the case before the
physician, there exists a medical emergency. In such a case,
however, after the abortion has been completed the physician
who performed the abortion shall certify in writing the
specific medical condition which formed the basis for
determining that a medical emergency existed.
``Sec. 1532. Penalties.
``(a) Action by the Attorney General.--The Attorney
General, the Deputy Attorney General, the Associate Attorney
General, or any Assistant Attorney General or United States
Attorney specifically designated by the Attorney General may
commence a civil action under this chapter in any appropriate
United States district court to enforce the provisions of
this chapter.
``(b) First Offense.--Upon a finding by the court that the
respondent in an action commenced under subsection (a) has
knowingly violated a provision of this chapter, the court
shall notify the appropriate State medical licensing
authority in order to effect the suspension of the
respondent's medical license in accordance with the
regulations and procedures developed by the State under
section 1533(b), or shall assess a civil penalty against the
respondent in an amount not to exceed $100,000, or both.
``(c) Second Offense--Upon a finding by the court that the
respondent in an action commenced under subsection (a) has
knowingly violated a provision of this chapter and the
respondent has been found to have knowingly violated a
provision of this chapter on a prior occasion, the court
shall notify the appropriate State medical licensing
authority in order to effect the revocation of the
respondent's medical license in accordance with the
regulations and procedures developed by the State under
section 1533(b), or shall assess a civil penalty against the
respondent in an amount not to exceed $250,000, or both.
``(d) Hearing.--With respect to an action under subsection
(a), the appropriate State medical licensing authority shall
be given notification of and an opportunity to be heard at a
hearing to determine the penalty to be imposed under this
section.
``(e) Certification Requirements.--At the time of the
commencement of an action under subsection (a), the Attorney
General, the Deputy Attorney General, the Associate Attorney
General, or any Assistant Attorney General or United States
Attorney who has been specifically designated by the Attorney
General to commence a civil action under this chapter, shall
certify to the court involved that, at least 30 calendar days
prior to the filing of such action, the Attorney General, the
Deputy Attorney General, the Associate Attorney General, or
any Assistant Attorney General or United States Attorney
involved--
``(1) has provided notice of the alleged violation of this
chapter, in writing, to the Governor or Chief Executive
Officer and Attorney General or Chief Legal Officer of the
State or political subdivision involved, as well as to the
State medical licensing board or other appropriate State
agency; and
``(2) believes that such an action by the United States is
in the public interest and necessary to secure substantial
justice.
``Sec. 1533. Regulations.
``(a) Federal Regulations.--
``(1) In general.--Not later than 60 days after the date of
enactment of this chapter, the Secretary of Health and Human
Services shall publish proposed regulations for the filing of
certifications by physicians under this chapter.
``(2) Requirements.--The regulations under paragraph (1)
shall require that a certification filed under this chapter
contain--
``(A) a certification by the physician performing the
abortion, under threat of criminal prosecution under section
1746 of title 28, that, in his or her best medical judgment,
the abortion performed was medically necessary pursuant to
this chapter;
``(B) a description by the physician of the medical
indications supporting his or her judgment;
``(C) a certification by an independent physician pursuant
to section 1531(a)(2), under threat of criminal prosecution
under section 1746 of title 28, that, in his or her best
medical judgment, the abortion performed was medically
necessary pursuant to this chapter; and
``(D) a certification by the physician performing an
abortion under a medical emergency pursuant to section
1531(c), under threat of criminal prosecution under section
1746 of title 28, that, in his or her best medical judgment,
a medical emergency existed, and the specific medical
condition upon which the physician based his or her decision.
``(3) Confidentiality.--The Secretary of Health and Human
Services shall promulgate regulations to ensure that the
identity of a mother described in section 1531(a)(1) is kept
confidential, with respect to a certification filed by a
physician under this chapter.
``(b) State Regulations.--A State, and the medical
licensing authority of the State, shall develop regulations
and procedures for the revocation or suspension of the
medical license of a physician upon a finding under section
1532 that the physician has violated a provision of this
chapter. A State that fails to implement such procedures
shall be subject to loss of funding under title XIX of the
Social Security Act.
``Sec. 1534. State Law.
``(a) In General.--The requirements of this chapter shall
not apply with respect to post-viability abortions in a State
if there is a State law in effect in that State that
regulates, restricts, or prohibits such abortions to the
extent permitted by the Constitution of the United States.
``(b) Definition.--In subsection (a), the term `State law'
means all laws, decisions, rules, or regulations of any
State, or any other State action, having the effect of law.
``Sec. 1535. Definitions.
``In this chapter:
``(1) Grievous Injury.--
``(A) In general.--The term `grievous injury' means--
``(i) a severely debilitating disease or impairment
specifically caused or exacerbated by the pregnancy; or
``(ii) an inability to provide necessary treatment for a
life-threatening condition.
``(B) Limitation.--The term `grievous injury' does not
include any condition that is not medically diagnosable or
any condition for which termination of the pregnancy is not
medically indicated.
``(2) Physician.--The term `physician' means a doctor of
medicine or osteopathy legally authorized to practice
medicine and surgery by the State in which the doctor
performs such activity, or any other individual legally
authorized by the State to perform abortions, except that any
individual who is not a physician or not otherwise legally
authorized by the State to perform abortions, but who
nevertheless directly performs an abortion in violation of
section 1531 shall be subject to the provisions of this
chapter.''.
(b) Clerical Amendment.--The table of chapters for part I
of title 18, United States Code, is amended by inserting
after the item relating to chapter 73 the following new item:
``74. Ban on certain abortions.................................1531.''.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SANTORUM. Mr. President, I appreciate the remarks of the Senator,
and I appreciate his good faith in offering this amendment. I am not
going to discuss that amendment specifically right now, although I
certainly will.
I have a couple of comments. First off, it has to be noted here that
partial-birth abortions are performed--this is according to the people
who perform them--well over 90 percent of the partial-birth abortions
that are performed--and some have suggested much higher than 90
percent--on healthy babies and healthy mothers. Healthy babies, healthy
mothers. A very small percentage are the cases that you have heard
brought up here today.
The question is then posed: Well, who are we to make the decision
about these tough cases? I think even the Senator from Illinois would
say, if it is a healthy mother and baby and this procedure isn't
necessary, I have some problems. I think a lot of Members who have
voted against this bill have said, if it is that case--but there are
these cases. I am happy to address those cases, but let me do it in a
broader context.
The reason we inject ourselves is the same reason the Supreme Court
has injected itself into the debate on second-
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and third-trimester abortions. It is because we are not talking about
removing a tumor. It is not where we are going to say you should not
remove this cancerous tumor this way or that way or that appendix that
way. What we are talking about here is killing a baby--from my
perspective, particularly killing a baby in such a barbaric fashion--
which is almost born and is almost protected by the Constitution. So I
understand the concern that we should not be practicing medicine. No
one is practicing medicine here. What we are doing here is drawing a
very important line about what we will allow in our society when it
comes to killing a living human being. I don't think anybody is going
to question that the baby is living and it is a human being. So what we
are talking about here is how can you kill a living human being?
What we are saying is you should not be able to kill a living human
being that is almost born, especially in a brutal fashion. The reason
is because of how horrendous this is. It creates some real slippery
slopes when the Senator from California gets up and says, ``I want
every child to be wanted.'' So now if you are not wanted, you are not
protected by the Constitution and that is the way it works? If you are
not wanted as a child, you don't get protection. What if you're not
wanted as a Senator. Do you not get protection? I don't think we want
to go down that road.
I am concerned, particularly as we talk about this procedure, where
the baby is three inches away from protection from the Constitution,
and when you get into this area and say, people have to have all the
rights to do whatever they want. That is not what the Constitution
says. That is not what we have said here. We have drawn a line because
we think it is important for society to draw lines about what is, in
fact, legal and what is not.
Mr. DURBIN. Will the Senator yield for a question?
Mr. SANTORUM. Yes.
Mr. DURBIN. I want to explore this, because I really want to
understand what we are driving at here. I gave an example of a baby
inside a mother's womb with its brain outside of its skull. This brain
was growing in size. It was very clear that the baby was alive through
the mother that continued to detect a fetal heart beat, and there is an
obvious question as to whether this baby could ever survive. At the
moment, they had to make a decision. They knew if they went through
certain procedures, the mother could have her uterus rupture because of
the size of this abnormal growth of the baby, and they decided to use
the procedure that the Senator would ban.
Now, conceding everything you have said, does the Senator from
Pennsylvania not acknowledge the fact that the baby's life was
something that, frankly, was not going to last but a few seconds? As
soon as that baby was disconnected from the mother's umbilical cord,
the placenta, that baby was not going to survive at that point. The
doctor had to say: This baby is not going to live and if I don't use
the procedure that you are going to ban here, I can do damage to this
woman where she would never have another baby. That is the kind of
case. I understand the Senator says it is a living thing, but it is
living because of the mother's body and it cannot live on its own.
Mr. SANTORUM. I understand that very well. I just say this. What we
have been told by the overwhelming amount of medical evidence--and,
again, it gets back to the discussion we had earlier about whether this
procedure is the only appropriate procedure--what we have been told
over and over again is that this is never medically necessary. In this
circumstance, this is not the only procedure that could be used, No. 1.
Again, we have overwhelming medical evidence saying that this is, in
fact, not the safest--in fact, is the most dangerous. Even the person
who wrote the textbook on second- and third-trimester abortions, a guy
by the name of Warren Hern, who talks about this procedure--he does
more second- and third-trimester abortions than any other abortionist
in the country--says, ``I have serious reservations about this
procedure. You really can't defend it. I would dispute any statement
that says this is the safest procedure to use.''
This is an abortionist from Colorado who does more third-trimester
abortions than anybody in the country.
My point is not that we should say you can't have an abortion if that
is what the person wants at that point. But there are other options
other than an intact D&E. There are other abortion options, as the
Senator explored in his statement. There is the caesarean section,
depending on what the problem is. You have the Alan Guttmacher
Institute which looked at statistics on abortion. They say that
abortion is twice as risky to the life of the mother as is delivery in
the second- and third-trimester.
Mr. DURBIN. Will the Senator yield so I understand the Senator's
point of view?
I don't want to put words in his mouth. But what I hear him say is
you can find some other abortion procedure in that instance other than
the one you are banning. That is fine. The Senator may not personally
like abortion at all. But from his point of view, he is saying just as
long as you use a different kind of procedure, this bill is OK.
Mr. SANTORUM. That is correct.
Mr. DURBIN. This bill is going after one procedure.
Mr. SANTORUM. We are very clear. I don't think this is a problem
under Roe v. Wade. I think we are very clear, and are, frankly, working
on making it clearer in the definition dealing with the issue of
vagueness because that has been raised, as the Senator mentioned, in
the court cases across the country. Even though one case held it to be
constitutional, we are looking into ways in which we can tighten that
definition.
To make sure, what we are saying is, look, if an abortion is what the
mother chooses, or a family chooses, it is legal under certain
circumstances in the second- and third-trimester, in almost all
circumstances. But we are saying this procedure, because of the very
difficult slippery slope of having an almost born child being killed,
should not be allowed.
Mr. DURBIN. Will the Senator yield for another question?
Let me say this: The American Council of Obstetricians and
Gynecologists comes to a different conclusion. They say in some
circumstances this is the safest.
Mr. SANTORUM. But they do not identify any.
Mr. DURBIN. Having said that, there are choices where these women use
this procedure under extraordinary circumstances. In the cases the
Senator was talking about, they were literally dealing with the birth
of a fetus which was not going to survive which was so abnormally sized
that it caused a danger and the possibility that the mother would never
have another child. Why would we want to preclude any medical procedure
that might save that mother's life or give her a chance to have another
child, if the Senator from Pennsylvania concedes that he is not arguing
against all abortion procedures?
Mr. SANTORUM. Because there are safer alternatives available
according to all of the medical literature, and we have definitive
statements from obstetricians, hundreds of them, as well as people from
Northwestern--I will be happy to share the article with the Senator--
from a fairly reputable medical school; I am sure the Senator would say
one of the best medical schools. But we have overwhelming evidence that
there are safer procedures to use, that this is a rogue practice. It is
not used much. And, again, according to Warren Hern, he can't defend
this procedure. It is something that should not be used. It is not
safe.
I will show you arguments. I don't have it handy, but we will enter
into the Record an analysis of the cases that you have made by
obstetricians who will say under these circumstances there would have
been a safer course, a better course than what was done by the
physicians in this case. What we are saying is it is not the best
medicine, period. It is not medically necessary, period. And it is a
barbaric infringement on the rights of an almost born child.
I agree. This is a very narrow bill.
Mr. DURBIN. Let me ask this question, if I might. I ask this question
in good faith because I think we should have this dialogue.
Step aside from the argument about whether we should have abortion at
all, and go to the first two points; that this
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procedure is never medically necessary and is especially risky.
Before I was elected to Congress, I used to practice law as a trial
lawyer in medical malpractice cases.
I ask the Senator from Pennsylvania, why would any physician subject
themselves to a medical malpractice case if the two points that the
Senator made are so obvious; that is, this procedure is never medically
necessary, and it is more dangerous than other procedures for the
mother? Why in the world would they ever take the risk of a lawsuit by
using this procedure unless they believe they could justify that it is
medically necessary and that in effect it was the safest procedure for
the mother to use?
Mr. SANTORUM. This is not commonly practiced. It is only practiced
with a few thousand abortions a year. Given the fact there are 1.4
million abortions, a few thousand abortions, it is not something that
is practiced in every abortion clinic. I think a lot of abortion
clinics will say this is a rogue practice. That is not to say people do
not practice medicine that is somewhat strange. There are a lot of
people who do things in medicine that are not considered to be
medically sound judgments. That doesn't mean that they aren't done.
They are, in fact, done. This is a situation where we believe that is
the case. This is a rogue procedure. Someone may be sued. I don't know.
Maybe someone has. I am not aware of someone being sued. But, again,
the person most likely to sue would be the child that is dead. I am not
too sure that in the case of the mother that is necessarily a most
common thing you will see. I don't think a lot of abortionists are
sued, period.
I would like to address a couple of issues that the Senator from
California brought up, and then the Senator from Illinois.
First, to state very clearly what the Senator from California said,
talking about the murder of abortionists and snipers firing at people,
I am against murder. I think everybody who supports this legislation--
and, frankly, everybody in this Chamber agrees--believes that acts of
violence against anybody on the issue of abortion is counterproductive
to an effort that seeks to affirm life. Certainly, taking the law into
their own hands is an outrage, is offensive to me, is wrong, and should
be prosecuted to the fullest extent of the law. There is no room in a
movement that talks about nonviolence--and violence toward babies in
utero--for condoning actions of violence of any sort, whether it is
murder or attempted murder or destruction of property, et cetera. I
don't stand here condoning that, and I would join with the Senator from
California to condemn it and condemn it in the strongest words
possible. That is no service to those who are trying to get the
country's ear in defense of innocent human life.
I want to correct what the Senator from California said also about no
court has found our language in this bill constitutional. That is not
true. The court in Wisconsin has found this language to be
constitutional. It is now being appealed to the Seventh Circuit. The
law is enjoined upon appeal. But, again, we have a district court that
has found this to be constitutional.
I would like to go through again, quoting from the Journal of the
American Medical Association, an article printed in 1998, a year ago in
August, by two obstetricians from Northwestern University, and go
through again why this procedure--it keeps coming back to two issues,
as the Senator from Illinois talked about.
One, the term is too vague. The definition is too vague.
I will be addressing that. Hopefully, in the next couple of days we
will work on that, although I think, frankly, the definition is
perfectly clear. We are willing to work and to see whether we can make
it a little bit more definitive.
Second, that this may be necessary to protect the health of the
mother, again, that is the discussion in which the Senator from
Illinois and I were just engaged.
I want to restate again how overwhelming the evidence is of people
who can definitively state without question that over 400 obstetricians
around the country say it is never medically necessary.
C. Everett Koop--as the Senator from Illinois said, is never
medically necessary. It is a pretty strong term to say it is never
medically necessary.
What do we have on the other side? We have some anecdotes about cases
where it was used, but in no case do they state that was the only
option or that was the best option.
On our side we have the abortionist, Dr. Haskell from Ohio, who
probably does more of these abortions than any other person. He says it
is never--underline never--medically necessary to protect the life of
the mother and not medically necessary to protect the health of the
mother. The abortionist himself says that.
On the other side, we have the statement from the American College of
Obstetricians and Gynecologists. That is the argument on the other
side. This whole debate on health is centered around an organization
that is very pro-abortion that says they put together a select panel
that:
. . . could identify no circumstances under which this
procedure would be the only option to save the life or
preserve the health of the woman.
This is an organization that opposes this bill. This is an
organization they rely upon to hold on to the ``health exception.''
That is the cover behind not voting for this bill.
There are two arguments: Health of the mother--we need that,
otherwise we can't vote for this if we don't have that--and it is too
vague, the definition is too vague.
The organization they rely upon says they can:
. . . identify no circumstances under which this procedure
would be the only option to save the life or preserve the
health of the woman and that an intact D&X, however--
This is what they hold on to--
. . . may be the best or most appropriate procedure in a
particular circumstance to save the life or preserve the
health of the woman, and only the doctor, in consultation
with the patient, based upon the woman's particular
circumstances, can make this decision.
That is their rationale. It ``may be,'' and we should ``leave it to
the doctor and the patient.'' ``May be.'' OK, fine. It may be.
We have asked this organization to provide one circumstance--just
one. By the way, we have asked them now for 3 years to give one
circumstance where we can have peer review by obstetricians, have them
look at their circumstance where this ``may be'' the best option. Give
a hypothetical; give an example we can actually examine.
What is the answer from that organization? Nothing.
They say it ``may be.'' We can't say how, we can't give any evidence
of it, but ``it may be.'' Because it may be--which is not
substantiated--that is the health exception they need.
It is pretty lame. If they cannot come forward and give facts, we
need a health exception because it ``may be,'' but if we cannot give
circumstances where that is the case, where is the health exception?
They admit it is not the only way. The AMA has said it is not good
medicine; it is a rogue procedure, and the AMA is a pro-choice
organization. That is what their board votes.
Again, it is hard for me to argue against ``May be's,'' without
specifics. That is what we have. Members are hiding behind ``we need a
health exception because it may be.'' This is a debate about facts. We
have hundreds and hundreds of physicians who say it may be never the
best option; it will never be the best option; there are always better
alternatives.
From the point of view of someone who is on the Senate floor and
whose job it is to look at all the information, to be able to make a
judgment, don't hide behind a health exception that doesn't exist and
is not substantiated. Just because it is substantiated by anecdotes of
people who used them because it happened to save them, that doesn't
mean there weren't better options at the same time. Just because this
worked to save the health of the mother doesn't mean there weren't
better options.
Mr. President, 400 years ago we used to bleed people, and it probably
helped some people, but that doesn't mean there weren't better options.
We are saying, what is the best option? Why do we want the best option?
This is not removing a tumor. This is killing a baby that is outside
the mother. That is why we don't like this procedure.
This is not practicing medicine and telling doctors how to do their
business. If this were about an ingrown toenail, we wouldn't care. This
is about
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killing a living human being--about killing a living human being. I
don't think anybody on the floor will argue with that. We are talking
about killing a living human being. That is this far away from the
Constitution saying ``no.'' This far.
I will read from this article the rationale given by these physicians
as to why they believe this is not the best procedure for mothers from
a health perspective.
There exist no credible studies on intact D&X--
This is a rogue procedure--
. . . that evaluate or attest to its safety. The procedure
is not recognized in medical textbooks nor is it taught in
medical schools or in obstetrics and gynecology
residencies. Intact D&X poses serious medical risks to the
mother. Patients who undergo an intact D&X--
Intact D&X is a partial-birth abortion as defined in the bill--
are at risk for the potential complications with any surgical
midtrimester termination, including hemorrhage, infection,
and uterine perforation. However, intact D&X places these
patients at increased risk of two additional complications.
So a traditional late-term abortion has certain risks associated with
it, according to these doctors from Northwestern University. But this
procedure has two other complications in addition to the ones already
inherent in a late-term abortion:
First, the risk of uterine rupture may be increased. An
integral part of the D&X procedure is an internal podalic
version, during which the physician instrumentally reaches
into the uterus, grasps the fetus' feet, and pulls the feet
down into the cervix, thus converting the lie to a footling
breach. The internal version carries risk of uterine rupture,
abruption, amniotic fluid embolus, and trauma to the uterus.
The second potential complication of intact D&X is the risk
of iatrogenic laceration and secondary hemorrhage. Following
internal version and partial breech extraction, scissors are
forced into the base of the fetal skull while it is lodged in
the birth canal. This blind procedure risks maternal injury
from laceration of the uterus or cervix by the scissors and
could result in severe bleeding and the threat of shock or
even maternal death.
These risks have not been adequately quantified.
None of these risks are medically necessary because other
procedures are available to physicians who deem it necessary
to perform an abortion late in pregnancy. As ACOG policy
clearly states, intact D&X is never the only procedure
available. Some clinicians have considered intact D&X
necessary when hydrocephalus is present.
Water on the brain.
However, a hydrocephalic fetus could be aborted by first
draining the excess fluid from the fetal skull through
ultrasound-guided. . .[procedures.] Some physicians who
perform abortions have been concerned that a ban on late term
abortions would affect their ability to provide other
abortion services. Because of the proposed changes in federal
legislation, it is clear that only intact D&X would be
banned.
I can and I will, throughout the course of the next couple of days,
provide letter after letter signed by hundreds and hundreds of
obstetricians, the best in their field, perinatologists, people who
deal with maternal and fetal medicine, who say this procedure is
dangerous, more dangerous to a woman. So the issue of health is a bogus
one. It is a bogus issue.
Again I go back to Warren Hern, the author of ``Abortion Practice,''
the author who does more third-trimester abortions, I am told, than
anybody else in America. He says:
I have very serious reservations about this procedure. You
really can't defend it. I would dispute any statement that
this is the safest procedure to use.
This is not a fan of this bill. So, again, all these comments and
concerns about ``we have to protect health, we have to protect
health''--if we outlawed this procedure, we would be protecting health.
We would be protecting the health of women where doctors who do it do
it for the convenience of the abortionist.
Do you want to know why it is done? It is done for the convenience of
the abortionist, because they can do more in 1 day. That is why this
procedure was developed. That is what they will tell you. That is, the
doctor who invented this procedure, he will tell you that is why he did
it.
On the other issue--and we will get to this a little later in the
debate--the issue of vagueness, the Senator from California said every
court in the country that has ruled on this has ruled it is vague or
ruled it is unconstitutional.
First off, that is not true. Wisconsin ruled in fact it is
constitutional. But I am willing to work with those who have genuine
concerns about the issue of vagueness, to get a definition that makes
people perfectly comfortable that we are not talking about any other
form of abortion because it is not my intent, as has been ascribed to
me, that what I am trying to do is eliminate all second- and third-
trimester abortions.
What is clear about this debate and the debate that has been going on
now for three Congresses is that we are not trying to do that. I think
we have stood on the floor and said that is not our intent. Our intent
is to get rid of a dangerous procedure. Yes, it is painful to the baby.
Yes, it is dangerous to the mother. But it is also dangerous to our
society, to be able to kill a baby that is this close to being born. I
think it is something we have to stand up and draw the line on clearly,
and that is what we are asking to do.
So to me it is pretty simple. We have no evidence this jeopardizes
the health of the mother--none. We have speculation, no facts. We have
the vagueness concern. Again, I am willing to work on that issue. If
that is a genuine concern that people have, I am willing to work on it
to make sure we can make people comfortable that what we are talking
about is only this procedure.
But once you get past those two concerns, I do not know what is left.
I do not know why you defend this. I do not know why you defend killing
a baby this far away from being born who would otherwise be born alive.
I do not know how you defend it.
So I look forward to this debate over the next couple of days. I know
the Senator from California feels very passionately about this, but I
think the issue of where we draw the line constitutionally is very
important. I am sure the Senator from California agrees with me. I
think the Senator from California would say that she and I, the Senator
from Illinois, the Senators from Arkansas and Kansas, we are all
protected by the Constitution with the right to life.
Would you agree with that, Senator from California? Do you answer
that question?
Mrs. BOXER. I support the Roe v. Wade decision.
Mr. SANTORUM. Do you agree any child who is born has the right to
life, is protected by the Constitution once that child is born?
Mrs. BOXER. I agree with the Roe v. Wade decision, and what you are
doing goes against it and will harm the women of this country. And I
will address that when I get the floor.
Mr. SANTORUM. But I would like to ask you this question. You agree,
once the child is born, separated from the mother, that that child is
protected by the Constitution and cannot be killed? Do you agree with
that?
Mrs. BOXER. I would make this statement. That this Constitution as it
currently is--some want to amend it to say life begins at conception. I
think when you bring your baby home, when your baby is born--and there
is no such thing as partial-birth--the baby belongs to your family and
has the rights. But I am not willing to amend the Constitution to say
that a fetus is a person, which I know you would. But we will get to
that later. I know my colleague is engaging me in a colloquy on his
time. I appreciate it. I will answer these questions.
I think what my friend is doing, by asking me these questions, is off
point. My friend wants to tell the doctors in this country what to do.
My friend from Pennsylvania says they are rogue doctors. The AMA will
tell you they no longer support the bill. The American Nurses don't
support the bill. The obstetricians and gynecologists don't support the
bill. So my friend can ask me my philosophy all day; on my own time I
will talk about it.
Mr. SANTORUM. If I may reclaim my time, first of all, the AMA still
believes this is bad medicine. They do not support the criminal
penalties provisions in this bill, but they still believe--I think you
know that to be the case--this procedure is not medically necessary,
and they stand by that statement.
I ask the Senator from California, again, you believe--you said
``once the baby comes home.'' Obviously, you don't mean they have to
take the baby out of the hospital for it to be protected by the
Constitution. Once the
[[Page S12879]]
baby is separated from the mother, you would agree--completely
separated from the mother--you would agree that baby is entitled to
constitutional protection?
Mrs. BOXER. I will tell you why I don't want to engage in this. You
had the same conversation with a colleague of mine, and I never saw
such a twisting of his remarks.
Mr. SANTORUM. Let me be clear, then. Let's try to be clear.
Mrs. BOXER. I am going to be clear when I get the floor. What you are
trying to do is take away the rights of women and their families and
their doctors to have a procedure. And now you are trying to turn the
question into, When does life begin? I will talk about that on my own
time.
Mr. SANTORUM. If I may reclaim the time?
The PRESIDING OFFICER (Mr. Bunning). The Senator from Pennsylvania
has the floor.
Mr. SANTORUM. What I am trying to do is get an answer from the
Senator from California as to where you would draw the line because
that really is the important part of this debate.
Mrs. BOXER. I will repeat. I will repeat, the Senator has asked me a
question----
The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
Mrs. BOXER. I am answering the question I have been posed by the
Senator, and the answer to the question is, I stand by Roe v. Wade. I
stand by it. I hope we have a chance to vote on it. It is very clear,
Roe v. Wade. That is what I stand by; my friend doesn't.
Mr. SANTORUM. Are you suggesting Roe v. Wade covered the issue of a
baby in the process of being born?
Mrs. BOXER. I am saying what Roe v. Wade says is, in the early stages
of a pregnancy, a woman has the right to choose; in the later stages,
the States have the right--yes--to come in and restrict. I support
those restrictions, as long as two things happen: They respect the life
of the mother and the health of the mother.
Mr. SANTORUM. I understand that.
Mrs. BOXER. That is where I stand. No matter how you try to twist it,
that is where I stand.
Mr. SANTORUM. I say to the Senator from California, I am not twisting
anything. I am simply asking a very straightforward question. There is
no hidden question here. The question is----
Mrs. BOXER. I will answer it again.
Mr. SANTORUM. Once the baby is born, is completely separated from the
mother, you will support that that baby has, in fact, the right to life
and cannot be killed? You accept that; right?
Mrs. BOXER. I don't believe in killing any human being. That is
absolutely correct. Nor do you, I am sure.
Mr. SANTORUM. So you would accept the fact that once the baby is
separated from the mother, that baby cannot be killed?
Mrs. BOXER. I support the right--and I will repeat this, again,
because I saw you ask the same question to another Senator.
Mr. SANTORUM. All the Senator has to do is give me a straight answer.
Mrs. BOXER. Define ``separation.'' You answer that question.
Mr. SANTORUM. Let's define that. Let's say the baby is completely
separated; in other words, no part of the baby is inside the mother.
Mrs. BOXER. You mean the baby has been birthed and is now in the
mother's arms? It is a human being? It takes a second, it takes a
minute----
Mr. SANTORUM. Say it is in the obstetrician's hands.
Mrs. BOXER. I had two babies, and within seconds of them being born--
--
Mr. SANTORUM. We had six.
Mrs. BOXER. You didn't have any.
Mr. SANTORUM. My wife and I did. We do things together in my family.
Mrs. BOXER. Your wife gave birth. I gave birth. I can tell you, I
know when the baby was born.
Mr. SANTORUM. Good. All I am asking you is, once the baby leaves the
mother's birth canal and is through the vaginal orifice and is in the
hands of the obstetrician, you would agree you cannot then abort the
baby?
Mrs. BOXER. I would say when the baby is born, the baby is born and
would then have every right of every other human being living in this
country, and I don't know why this would even be a question.
Mr. SANTORUM. Because we are talking about a situation here where the
baby is almost born. So I ask the question of the Senator from
California, if the baby was born except for the baby's foot, if the
baby's foot was inside the mother but the rest of the baby was outside,
could that baby be killed?
Mrs. BOXER. The baby is born when the baby is born.
Mr. DURBIN. Will the Senator yield?
Mrs. BOXER. That is the answer to the question.
Mr. SANTORUM. I am asking for you to define for me what that is.
Mrs. BOXER. I can't believe the Senator from Pennsylvania has a
question with it. I have never been troubled by this question. You give
birth to a baby. The baby is there, and it is born, and that is my
answer to the question.
Mr. SANTORUM. What we are talking about here with partial birth, as
the Senator from California knows, is the baby is in the process of
being born----
Mrs. BOXER. In the process of being born. This is why this
conversation makes no sense, because to me it is obvious when a baby is
born; to you it isn't obvious.
Mr. SANTORUM. Maybe you can make it obvious to me. What you are
suggesting is if the baby's foot is still inside of the mother, that
baby can then still be killed.
Mrs. BOXER. I am not suggesting that.
Mr. SANTORUM. I am asking.
Mrs. BOXER. I am absolutely not suggesting that. You asked me a
question, in essence, when the baby is born.
Mr. SANTORUM. I am asking you again. Can you answer that?
Mrs. BOXER. I will answer the question when the baby is born. The
baby is born when the baby is outside the mother's body. The baby is
born.
Mr. SANTORUM. I am not going to put words in your mouth----
Mrs. BOXER. I hope not.
Mr. SANTORUM. But, again, what you are suggesting is if the baby's
toe is inside the mother, you can, in fact, kill that baby.
Mrs. BOXER. Absolutely not.
Mr. SANTORUM. OK. So if the baby's toe is in, you can't kill the
baby. How about if the baby's foot is in?
Mrs. BOXER. You are the one who is making these statements.
Mr. SANTORUM. We are trying to draw a line here.
Mrs. BOXER. I am not answering these questions.
Mr. SANTORUM. If the head is inside the mother, you can kill the
baby.
Mrs. BOXER. My friend is losing his temper. Let me say to my friend
once again--and he is laughing----
Mr. SANTORUM. I am not laughing.
Mrs. BOXER. Let me say, this woman is not laughing right now because
if this bill was the law of the land, she might either be dead or
infertile. So if the Senator wants to laugh about this, he can laugh
all he wants.
Mr. SANTORUM. Reclaiming my time, Mr. President. All I suggest is I
was not laughing about the discussions. It is a very serious
discussion.
Mrs. BOXER. Well, you were.
Mr. SANTORUM. I was smiling at your characterization of my demeanor.
I have not lost my temper. I think I am, frankly, very composed at this
point. What I will say--and the Senator is walking away--is the Senator
said, again, the baby is born when the baby is born. I said: If the
foot is still inside the mother? She said: Well, no, you can't kill the
baby. If the foot is inside, you can't, but if the head is the only
thing inside, you can.
Here is the line. See this is where it gets a little funny.
Mrs. BOXER. Parliamentary inquiry, Mr. President. Let the Record show
that I did not say what the Senator from Pennsylvania said that I did.
Thank you.
Mr. SANTORUM. Mr. President, I hate to do this, but could we have the
clerk read back what the Senator from California said with respect to
that question?
I understand it will take some time for us to do that. I will be
happy--
Mrs. BOXER. I say to my friend, I know what I said. I am saying your
characterization of what I said is incorrect. I didn't talk about the
head or the foot. That was what my colleague talked about. And I don't
appreciate it being misquoted on the floor over a subject that involves
the health and
[[Page S12880]]
life of the women of this country and the children of this country and
the families of this country.
Mr. SANTORUM. It also involves--and that is the point I think the
Senator from California is missing--it also involves when in the
process--that is why people on both sides of the abortion issue support
this bill, because it also involves what is infanticide and what is
not. A lot of people who agree with you on the issue of abortion say
this is too close to infanticide. This is a baby who is outside the
mother.
Again, I will not put words in the Senator's mouth, but what I
heard--and again I am willing to have that corrected by the Record and
the Senator can correct me right now--what I heard her say is if the
foot is inside the mother, no, you cannot kill the baby, but when the
head is, you can. That is a pretty slippery slope.
Mrs. BOXER. I say to my friend, what I said was I wasn't answering
those questions. What the Senator was trying to do was to bait me on
his terms of how he sees this issue.
We have a situation where this procedure is outlawed. It will hurt
the women and the families of this country. My friend can disagree with
that, but I never got into the issue of when is someone born. I said to
you I am very clear on that, and I understand that completely, but it
was my friend who kept on asking these questions, which to me do not
make any sense because the issue here is an emergency procedure that my
friend from Pennsylvania wants to make illegal, and it will hurt the
women and it will hurt the families of this country.
Mr. SANTORUM. If I can reclaim my time, first off, the Senator from
California said this was an emergency procedure. Name me an emergency
procedure that takes 3 days. That is what the procedure takes. That is
one of the things that was put forward early in the debate, now risen
again, that this is somehow an emergency procedure. It is not an
emergency procedure. It is a 3-day procedure.
No emergency do you present yourself in an emergency condition and
get sent home with pills for 3 days to present yourself back.
Again, I want to finalize, and then the Senator from Arkansas has
been waiting for quite sometime, and I want to allow him to speak. This
is not a clean issue. This is not a removal of a tumor. We are talking
about drawing the line between what is infanticide and what is
abortion, and that is why many of us are disturbed about this. No one
is trying to reach in and outlaw abortions.
The Senator from Illinois and I were very clear about the limited
scope of this bill. What we are saying is, this is too close to
infanticide. This is barbaric. This fuzzies the line that is dangerous
for the future of this country. And what you saw, as the Senator from
California was hesitant to get involved in that because she realizes
how slippery this slope is, that you can say the foot does, the head
doesn't, maybe the ankle--folks, we don't want to go there. It is not
necessary for the health of the mother, it is not necessary for the
life of the mother, and if you don't believe me, believe the person who
developed it because they said so.
I think we need to have a full debate, not just on narrow issues, but
on the broader issue of what this means to the rights of every one of
us born and unborn, sick and well, wanted and unwanted. I think the
line needs to be a bright one. I yield the floor.
Mr. HUTCHINSON addressed the Chair.
The PRESIDING OFFICER (Mr. Voinovich). The Senator from Arkansas.
Mr. HUTCHINSON. Mr. President, I am pleased to rise in support of
this legislation to ban the partial-birth abortion procedure. I commend
the Senator from Pennsylvania for his passionate, eloquent, and
articulate explanation in defense of this legislation.
I had the privilege of presiding during Senator Santorum's statement.
I cannot say as well, I cannot say as passionately what the Senator
from Pennsylvania said so very well in explaining the need for this
legislation and why we are taking the time on the floor of the Senate
to debate it and to vote on it. I am here so he might not stand alone,
and he does not stand alone.
There will be better than 60 percent of the Senate voting for this
legislation, and better than 80 percent of the American people support
a ban on this horrible procedure. But this is not a subject, it is not
a topic, it is not an issue about which people like to talk. It is not
something Senators feel comfortable coming down and talking about; it
is not something I feel comfortable talking about, but I do think it is
very important.
Once again, I commend my colleague for the leadership he has shown on
this issue.
Mr. President, the Nation was shaken with a sense of disbelief over 5
years ago in 1994 when we discovered that a young mother in South
Carolina, Susan Smith, had murdered her own children and then pretended
they had been kidnapped.
In my home State of Arkansas, in recent days, a young woman in her
ninth month of pregnancy was savagely attacked by three young men who
had been hired by the woman's boyfriend and the father of her unborn
child to force her to lose her baby. That was the reason he contracted
with these thugs, to, in effect, murder that unborn child. They beat
her with severe blows to her stomach and explicitly told her that their
intent was to kill her child, a child the father did not want.
As we were dealing with the shock of this gruesome tragedy, we
learned of a Memphis man who confessed to driving across the river last
summer into the Arkansas Delta with his wife and throwing the couple's
18-month-old child down into a 15-foot levee, leaving the child to die
a slow and painful death of exposure to the elements. After this
horrific event, the same couple allegedly returned 3 days later and
drowned their other child in a pond.
Last month, the Washington papers were filled with the news of a
Maryland man who stands accused of killing his two small children and
then reporting their deaths as the result of a carjacking.
Unfortunately, these kinds of incidents become all too frequent
today. The list goes on and on.
The question I raise is, Are the tragedies I have recounted, and the
scores of others that could be enumerated, related to the debate that
we are having about partial-birth abortion?
I know there are people who will howl there is no connection. There
will be people who would object strenuously to even the suggestion
being made that the all-too-frequent violence toward children could be
related to a society's permissive attitude toward a procedure that
would allow a baby to be partially born and then killed.
But I would suggest that, in fact, there is a connection; that
violence begets violence; that dehumanizing one part of mankind
contributes to the dehumanizing of all vulnerable human beings--whether
they are the disabled, whether they are the elderly, or whether they
are the newborn.
Many Americans were shocked--I was shocked--to hear of the Princeton
professor of bioethics, who was recently hired, assumed a seat on the
faculty at Princeton University, one of our most distinguished
universities--a professor of bioethics, ironically--who said:
I do not think it is always wrong to kill an innocent human
being. Simply killing an infant is never equivalent to
killing a person.
A professor of bioethics, at a major American university, who can say
that publicly and be defended.
The questions Senator Santorum posed a few moments ago to the Senator
from California--well, Professor Singer would not have had difficulty
in answering the questions that he posed. He simply says: It is not
always wrong to kill an innocent human being. Killing an infant is not
the equivalent of killing a person.
Is this where we are going?
This professor believes parents should be allowed, 28 days after the
birth of a severely disabled child, to decide whether or not they want
to kill the child or keep the child.
It was suggested earlier in the opening comments of the Senator from
Pennsylvania that the debate we are having about this kind of
procedure, 40 years ago, would have been unheard of in our society. No
one can doubt that in this so-called age of enlightenment we have moved
so far in what we view as acceptable in the area of taking the lives of
those who are innocent.
I listened very closely to the objections to this legislation as I
presided in
[[Page S12881]]
the chair during the opening statements of both sides earlier today. It
seemed to me that every issue that was raised in opposition to this
legislation was an effort to divert attention from the horror of this
procedure.
There was the issue of the timing of the vote. Whether this vote
occurs this week or whether this vote would have occurred last week or
next week does not change the horror of what we are talking about; it
does not change the terrible nature of a procedure that kills a child
that is partially born.
I think every objection that has been raised is an effort to turn our
attention away, divert our attention away from that chart that Senator
Santorum had on the floor earlier today, which was far from being a
cartoon but was very similar to medical charts.
Then there was the objection that we were practicing medicine; that
the Senate was seeking to practice medicine; that we should not make
this decision; that it is a decision that should be made within the
profession.
It was Thomas Jefferson who said--and I will say it as close to his
words as I can: The first and fundamental purpose of Government is the
protection of innocent human life.
There is no more fundamental goal and object of Government than the
protection of its citizens, the protection of human life. We could not
find a subject more relevant to what Government ought to be doing than
this subject.
To say we should not be involved in it because it is a medical issue
is simply an effort to divert us from what really is the issue; that
is, whether human life should be protected by law or not.
It is always ironic to me that those who say Government should not be
involved in this issue are the first to say Government should pay for
this procedure, or at least abortions in general.
Then there was the argument that the courts may rule this
unconstitutional; therefore we should not even be voting on this
because the courts, and the Supreme Court eventually, might rule this
legislation unconstitutional.
Isn't that ironic? Because I just listened to 4 days of debate in
which the constitutionality of campaign finance reform proposals were
argued on the floor of this Senate. No one said, well, we shouldn't
even debate this proposal because the courts--in fact, the evidence is
the courts have and will rule many portions of the so-called Shays-
Meehan legislation unconstitutional as a violation of the first
amendment--but it did not prevent us from having a healthy, prolonged
debate about the need for campaign finance reform.
I think it is an absolute red herring to say: Well, ultimately when
the Supreme Court makes a definitive ruling on this subject, they may
or may not rule that it is constitutional. That, in no way, abrogates
our responsibility to debate it and to pass legislation that we believe
is not only constitutional but in the best interests of this country.
Then it was said: Well, we have had repeated votes on this before. We
have had repeated votes on a lot of issues. The fact is, we have new
Senators now. We are going to have some different votes. We voted
repeatedly on campaign finance reform. It is a debate, I suspect, that
will go on year after year.
Because we have voted on this legislation before is no reason that we
should not, once again, raise what many believe is the fundamental
moral issue facing our culture today; that is, the issue of life.
Senator Santorum so eloquently demonstrated the folly of where this
ultimately leads. If killing an unborn child, who is partially
delivered, with only his or her head still within the body of the
mother, is legal, where then do we draw the line? Could we have a more
basic, fundamental issue of gravity before this body than that? So time
and time again we will hear, during the debate, the effort to take our
attention away from where the focus should be, and that is unborn child
and this horrible procedure.
Every effort will be made to bring up the timing of the vote, the
issue of whether or not this is in our purview, the practicing of
medicine, which, of course, is very much within our purview, this issue
of human life; the fact of what the courts have ruled or may yet rule
on this or similar legislation--all of these are efforts to take the
Nation's eyes off what this legislation is all about, and that is
eliminating a barbaric, uncivilized procedure that no right-minded
person can surely defend.
It is a Federal crime to harm a spotted owl or a bald eagle or even
its egg, but a helpless infant, completely dependent on its mother, is
not accorded the same protections we afford the spotted owl or the bald
eagle.
In this body--I say to my colleagues who say we shouldn't take the
time of the Senate to debate this issue--in this body, we debated an
amendment to the Interior appropriations bill that would have
prohibited the use of steel leg hold traps. Perhaps that was a debate
we should have had, but I believe it pales in comparison to the gravity
and the seriousness of the issue we are now debating. We would protect
the spotted owl, the bald eagle, or the inhuman practice of steel leg
hold traps, but we have trouble protecting infants who are pulled from
their mother's womb by the legs and killed.
One of the finest writers in this Nation, I believe, hails from the
State of Arkansas. He is a Pulitzer Prize-winning journalist whose name
is Paul Greenberg. He is one of the most brilliant and, I think,
articulate defenders of human life I have ever had the opportunity to
read. I want to read for the record a couple of short paragraphs from
the many columns this Pulitzer Prize winner has written:
As always, verbal engineering has preceded social
engineering. The least of these must be aborted in words
before it becomes permissible to abort them in deed. Those
whom we want out of the way must first be dehumanized or
something within might hold us back.
I wonder why there was such objection to even the term ``partial-
birth abortion.'' Clearly, it describes what this procedure is. I think
the author, Mr. Greenberg, has said it right: We have to do the verbal
engineering before we do the social engineering, because to use the
term ``partial-birth abortion'' suggests the humanity of that child.
Then Greenberg wrote:
What once would have inspired horror is now the mundane,
even the scientific, the advanced, the enlightened. What once
might have inspired dread is now sanctioned in the elastic
name of constitutional right and individual freedom.
That is what we are hearing today. We are hearing the defense of an
indefensible procedure, sanctioned in the elastic name of
constitutional right and individual freedom. When a question is raised,
it is simply: I support Roe v. Wade; that is our right. What an elastic
right it has become, to defend under Roe v. Wade a procedure that no
one, no civilized person, could suggest is either good medicine or
humane practice.
I ask my colleagues to not be diverted from the issue but to think
about the baby, think about the procedure, this horrible procedure,
think about the pain that little baby feels, think about what kind of
country we want to be.
I yield the floor.
Mrs. BOXER addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, I will make a unanimous consent request. I
hope it is OK with my colleague from Pennsylvania. I would like to
speak for 2 minutes. I would like to ask unanimous consent that
following that, Senator Wellstone take 10 minutes and, following that,
Senator Lieberman be recognized.
The PRESIDING OFFICER. Is there objection?
Mr. SANTORUM. If I may amend that to say, following that, Senator
Brownback would be recognized after Senator Lieberman.
Mrs. BOXER. Absolutely.
The PRESIDING OFFICER. If the Senator will repeat the understanding.
Mrs. BOXER. I will repeat it, as amended by my friend from
Pennsylvania. It would be Boxer for 2 minutes, Wellstone for 10
minutes.
How much time would Senator Lieberman like to have?
Mr. LIEBERMAN. Ten minutes is fine.
Mrs. BOXER. Ten minutes for Senator Lieberman, at which time we would
go to Senator Brownback for 10 minutes. That is my unanimous consent
request.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mrs. BOXER. I thank the Chair.
[[Page S12882]]
Let me say, the Senator from Arkansas said the charge of government
is to protect innocent life. We all want to protect every life. But
when it comes to pregnancy, we do have a law that prevails in this
country, which my friend may not agree with --I have a hunch he
doesn't--called Roe v. Wade. It was decided in 1973. In that decision,
the Court said when it comes to abortion, in the first trimester a
woman has the right to choose, without any interference by the
Government; and after that time, the States can regulate and restrict,
but always the life of the woman and the health of the woman must be
protected. That is Roe. That is, it seems to me, a very sound decision.
What we have in the Santorum bill is an out-and-out attack on that
philosophy because there is no exception for health.
My friend from Illinois, Senator Durbin, is trying to deal with that
issue. I say to him, my compliments for working on his bill.
The bottom line for this Senator: I want to make sure if my daughter
or anybody else's daughter is in an emergency situation, that the
doctor or doctors do not have to open up the law books and decide
whether or not they can do what is necessary to save the health and
life of my daughter.
When one talks about innocent life, one must look at the faces
involved. Here is a face of a beautiful young woman who wanted
desperately to have children. I will tell her story later. She is an
innocent person. Roe protects her; the Santorum bill leaves her out in
the cold.
So the Senator from Pennsylvania can engage me in debates all he
wants as to when I believe life begins and when I think a baby is born.
To me, it is very obvious when a baby is born. When it leaves the
mother, it is born. That is pretty straightforward.
I would prefer to leave the medical emergencies to the physicians. I
think they know. This isn't a Roe procedure we are talking about. This
is a procedure that the American College of Gynecologists and
Obstetricians supports. They say they need it in their arsenal when
they work to protect a woman's life and her health. The American Nurses
Association--I could go on and on.
At this time, I yield the floor and will come back to this as often
as we have to until this debate concludes.
I know Senator Wellstone has something to offer to the debate.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, I thank the Senator from California. I
shall be brief. First, I ask unanimous consent that I be included as an
original cosponsor of the Durbin amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WELLSTONE. Mr. President, I will describe the amendment one more
time for those who are following this debate. I think it is important
what the amendment says. It would ban all postviability abortions,
except in cases where both the attending physician and an independent
nontreating physician both certify in writing, in their medical
judgment, the continuation of the pregnancy would threaten the mother's
life or risk grievous injury to her physical health, with then a very
strict and very clear definition of ``grievous injury.'' That is what
the amendment says.
It would actually reduce the number of late-term abortions. This
legislation fits in with the constitutional parameters set forth by the
Supreme Court for government restriction of abortion. This legislation
retains the abortion option for mothers facing extraordinary medical
conditions such as breast cancer or non-Hodgkin's lymphoma. At the same
time, this amendment clearly limits the medical circumstances where
postviability abortions are permitted. By doing that, this legislation
protects fetal life in cases where the mother's health is not at high
risk.
I came to the floor to speak about this amendment because I believe
the Durbin amendment is, if you will, where I am kind of within me.
This is what I believe. I think it makes sense to move in this
direction. I think it makes sense to set up a strict standard. I think
it is terribly important, when we look at postviability abortions, to
have this test, to have this standard that has to be met. I am
certainly not going to vote for an amendment or a piece of legislation
which is so open-ended that where there clearly are the medical
circumstances, the life of a mother is threatened, she can't go forward
with this procedure.
Here is why I come to the floor. I don't understand why those who
want to see some change would not support this compromise. If you are
interested, I say to my colleagues, in trying to make a difference, if
you are concerned about some of these late-term abortions, if you think
there ought to be a more stringent standard, then that is what this
Durbin amendment says. If you are interested in passing legislation, if
you are interested in making a change, if you are interested in passing
a bill that isn't going to be vetoed by the President, if you are
interested in passing legislation, as opposed to one more time going
through this political war and making this a big political issue, then
you ought to support this amendment.
There are some people from the other side who think this amendment is
a mistake. They don't want to see this amendment pass. I think this
amendment is reasonable. I think it is a compromise that makes sense. I
think it deserves our support.
I actually will make this not at all personal in terms of what other
Senators have said. It is simply not true that there aren't many people
in the Senate who are not concerned, that don't share some of the
concerns that have been reflected by speeches given on the floor.
Sheila and I have three children, and we also were confronted with two
miscarriages--6 weeks and over 4 months. Anybody who goes through that
knows what this debate is all about. I also know it is about a woman, a
mother, a family having their right to choose. I am very nervous about
a State coming in and telling a family they are going to make this
decision. But I also understand the concerns, especially the concerns--
again, I go to the language about postviability abortions. But here we
have an amendment that says it will ban this except in the cases where
the attending physician and an independent, nontreating physician
certify that, in their medical judgment, if you don't do this, then you
are going to see a threat to the mother's life or she is going to risk
grievous injury to her physical health.
Isn't that reasonable? I am so tired of the sharp drawing of the line
and the polarization and the accusations and the emotion and the
bitterness. Why don't we pass this amendment? It is a reasonable
compromise.
For those who want to overturn Roe v. Wade, that is never going to
happen. That is the law of the land. But if we want to make a
difference and we have this concern, I think we should support this
Durbin amendment. I come to the floor of the Senate to thank him for
his effort. I am comfortable with this amendment. I think it would make
a difference. I think it would meet some of the agonizing concerns that
I and other Senators have. I am not about to support legislation that
is so open ended that it makes no allowance at all for the health of a
mother. That is my position.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the Senator from
Connecticut is recognized for 10 minutes.
Mr. LIEBERMAN. Mr. President, I rise to support the amendment offered
by my colleague from Illinois, Senator Durbin. The underlying bill and
this amendment bring us back to these morally perplexing questions. We
heard it in the sincerity of the speech by the Senator from Minnesota
and the sincerity of all of my colleagues speaking on either side, for
either of these approaches.
This problem, more than any I have confronted in my public life,
seems to me to join our personal value systems, our personal
understanding about profound philosophical medical questions, such as
``When does life begin?'' with our role as legislators, with our role
as lawmakers, with the limits of what our capacities are in making law
and, ultimately, of course, also with what the reality is that the
courts have stated as they have applied our Constitution, as the
ultimate arbiter of our values and our rights in this country.
[[Page S12883]]
I support this proposal of Senator Durbin's because, once again, I
think it actually will do what I believe most everybody--I would say
everybody--in this Chamber would like the law to do, and that is to
reduce the number of abortions that are performed. I support it also
because I think it can be upheld as constitutional, and I sincerely and
respectfully doubt the underlying proposal, the so-called Partial-Birth
Abortion Act, will be upheld as constitutional.
I remember I first dealt with these issues when I was a State senator
in Connecticut in the 1970s, after the Roe v. Wade decision was first
passed down by the Supreme Court, and the swelter of conflicting
questions: What is the appropriate place for my convictions about
abortion, my personal conviction that potential life begins at
conception and, therefore, my personal conviction that all abortions
are unacceptable? How do I relate that to my role as a lawmaker, to the
limits of the law, to the right of privacy that the Supreme Court found
in Roe v. Wade?
This proposal that deals with partial-birth abortion, or intact
dilation and extraction, brings us back once again to all of those
questions. I have received letters from constituents in support of
Senator Santorum's proposal. I have had calls and conversations with
constituents and friends--people I not only respect and trust but
love--who have urged me to support Senator Santorum's proposal.
When you hear the description of this procedure, it is horrific; it
is abominable. There is a temptation, of course, to want to respond and
do what the underlying proposal asks us to do in the law by adopting
this law. And then I come back to my own personal opinion, which is
every abortion, no matter when performed during pregnancy--this is my
personal view--is unacceptable and is, in its way, a termination of
potential life.
So as I step back and reach that conclusion, I have to place the
proposal Senator Santorum puts before us and the one Senator Durbin
puts before us now in the context, one might say, of some humility of
what the appropriate role for each of us is as lawmakers, what the
appropriate role for this institution is as a lawmaking body, and what
does the Court tell us is appropriate under the Constitution. I cannot
reach any other conclusion, personally, than that Senator Santorum's
proposal is not constitutional, that Senator Durbin's is, and will, in
fact, reduce the number of postviability abortions and, therefore, the
number of abortions that are performed in our country.
That is why I have added my name as a cosponsor to Senator Durbin's
proposal.
The courts have created well-defined boundaries for legislative
action. Under Planned Parenthood versus Casey, the Supreme Court held
that ``subsequent to viability, the State in promoting its interest in
the potentiality of human life may, if it chooses, regulate, and even
proscribe, abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of the
mother.'' Partial birth legislation has been challenged 22 times in the
courts resulting in 19 injunctions. The court-imposed constraints must
be reflected in legislative efforts if we are going to achieve our goal
of reducing late-term abortions. Enacting legislation that courts have
struck down time and again is unlikely to reduce abortions.
Most recently, of course, that conclusion was reached by the Eighth
Circuit Court on September 24, little less than a month ago, when the
court said:
Several states have enacted statutes seeking to ban
``partial-birth abortion.'' The precise wording of the
statutes, and how far the statutes go in their attempts to
regulate pre-viability abortions, differ from state to state.
The results from constitutional challenges to the statutes,
however, have been almost unvarying. In most of the cases
that reached the federal courts, the courts have held the
statutes unconstitutional.
So the constitutional impediment to the proposal Senator Santorum
makes is that, notwithstanding the horrific nature of the so-called
partial-birth abortion, the intact dilation and extraction method of
abortion, you cannot prohibit by law, according to the Supreme Court of
the United States, any particular form of terminating a pregnancy at
all stages of the pregnancy. You can prohibit almost all forms of
terminating a pregnancy after viability. That is what the Durbin
amendment will do.
Incidentally, viability as medical science has advanced, has become
an earlier and earlier time in the pregnancy.
There are exceptions.
Incidentally, the language in the Durbin proposal is not full of
loopholes. It is very strict and demanding. It requires a certification
by a physician that the continuation of the pregnancy would threaten
the mother's life or risk grievous injury to her physical health. Those
are serious requirements not meant to create a series of loopholes
through which people intending to violate the law can go.
As has been said, a new provision has been added to this amendment
which requires that an independent physician who will not perform nor
be present at the abortion, who was not previously involved in the
treatment of the mother, can affirm the first physician's opinion by a
certification in writing.
A physician who knowingly violates the act may be subject to
suspension of license and penalties as high as $250,000.
The limitations are specific. They are narrow. And they are, if I may
say so, inflexible. In that sense, they respond in the most narrow way
to the health exception required by the Supreme Court.
This is such a good proposal which Senator Durbin has offered that I
hope we may come back to it at some other time when it is not seen by
the proponents of Senator Santorum's legislation as a negation of that
legislation because this amendment in that sense never gets a fair vote
or a clear vote. I think if we brought it up on its own, perhaps it
could allow us the common ground on this difficult moral question
toward which I think so many Members of the Chamber on both sides
aspire. I hope we can find the occasion to do that.
I thank the Chair. I thank my friend from Illinois for the work he
has done in preparing this amendment and bringing it before us.
I yield the floor.
Mrs. BOXER. Mr. President, I know Senator Brownback is going to
speak.
The PRESIDING OFFICER. Senator Brownback is recognized.
Mrs. BOXER. Will the Senator yield for a unanimous-consent request so
that Senator Mikulski could follow the Senator?
Mr. BROWNBACK. I have no objection.
Mrs. BOXER. Mr. President, I ask unanimous consent that Senator
Mikulski follow Senator Brownback and be recognized for 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from Nebraska.
Mr. BROWNBACK. Thank you very much. I thank my colleague, Senator
Santorum, for once again bringing this important issue in front of this
body and to this floor.
Once again, I join Senator Santorum as an original cosponsor of this
legislation to end partial-birth abortion in this country. Last year,
the Senate failed to override the President's veto by three votes.
President Clinton has twice vetoed similar measures in 1996 and 1997.
We will continue, however, to raise this issue until the President
signs this into law, or until this procedure is banned for forever.
I follow my colleague from Connecticut, who I rarely disagree with on
matters of this nature. But this happens to be one of those which I do.
I view this as an abhorrent procedure, as my colleague from Connecticut
does as well. I also view it as a constitutional issue that we can
raise, that we can deal with, and this body should deal with.
This goes to one of the most fundamental issues for us as a country,
for us as a people, and that is when life begins and when it should be
protected. These lives should be protected.
As I sat and listened to much of this discussion, I have to say I am
sad as I listened to this discussion because it is so difficult, and it
is such an awful thing--the birth of a child, and then it is killed by
a blunt instrument.
I think some medical facts bear mentioning at this point in time.
Brain wave activity is detectable in human beings at 41 days after
conception--just 41 days. A heartbeat is detectable 24 days after
conception.
Consistently, State statutory or case law establishes a criteria of
dead as the
[[Page S12884]]
irreversible cessation of brain wave activity or spontaneous cardiac
arrest.
In short, these are lives of individuals that are ended by this
process. It is death. These are heartbeats and brain waves. They are
stopped. They are denied life by this abhorrent procedure.
I would like to share some thoughts with you from a writer, a Jewish
writer, Sandi Merl, when he was asked about this procedure of partial-
birth abortion. He said this:
When I think of Partial-Birth Abortion, I hear only the
first two words--``partial birth.'' To me, this procedure is
not abortion. It is pre-term delivery followed by an act of
destruction leading to a painful death . . . This is
infanticide, clearly and simply, and must be stopped . . .
This is about leaving no fingerprints when committing a
murder of convenience.
That is why I will once again vote to end partial-birth abortion when
it comes to the Senate floor. It is a cruel and shameless procedure
which robs us of our humanity with every operation performed. It is not
true that the anesthesia kills the child before removal from the womb.
Instead, it is the fact that the baby is actually alive and experiences
extraordinary pain when undergoing the operation.
Nor is this brutality only reserved for the most extreme
circumstances. According to the executive director of the National
Coalition of Abortion Providers, the ``vast majority'' of partial-birth
abortions are performed in the fifth and sixth months of pregnancy on
healthy babies of healthy mothers.
The facts speak for themselves. Bluntly put, this involves the death
of a child in a brutal fashion, and all of it legally condoned by the
current President of the United States.
Our institutionalized indifference to this extraordinary suffering
makes me wonder, what has happened to our collective conscience as a
nation? Are we really so callous that we knowingly condone this form of
death for our very weakest, which we would never force on any adult, no
matter how bad the crime? Even murderers on death row are given more
consideration when executed. Yet our babies are painfully killed while
conscious. This extraordinary cruelty should cause us to bow our heads
in shame.
In a Wall Street Journal article, Peggy Noonan rightly labeled events
such as that at Columbine High School as evidence of a much deeper
problem, one she identified as the ``culture of death.'' Quoting Pope
John Paul II from his recent visit to Mexico City, he urged a rejection
of this increasingly influential culture of death, instead embracing
the dignity and principles of life for everyone.
It is obvious, especially after the Columbine tragedy, that a culture
of death is playing in our land. Lately, the volume has been turned up
very loudly. The words to this song include the extremes we know now by
heart: Excessively high murder rates, the repeated rampages of violence
by schoolchildren against schoolchildren, the unending tawdriness of
television programming and other media, to name only a few cultural
malfunctions.
As Noonan went on to observe:
No longer say, if you don't like it, change the channel.
[People] now realize something they didn't realize ten years
ago: There is no channel to change to.
Perhaps our increasingly violent culture has dulled our consciences
and worn us down to this place where it no longer is politically
expedient to protest the obscene suffering of infants. This explains
why we continue to tolerate such a brutal practice as partial-birth
abortion--what a dreadful name. I hope it isn't so. It is to this
conscience that I appeal. I appeal to those who recognize the suffering
and do not turn their heads, who take personal responsibility to
correct this course of destruction, no matter the political
consequences.
Please, please, open your hearts and listen. Hear that voice in
there, the cries of thousands of little children, saying: Hear me, let
me live.
Every once in a while, something happens which shakes us from our
dullness. I want to share an event reported in the Washington Times
that described an incident in April of this year in Cincinnati where a
botched partial-birth abortion resulted in the birth of a little girl
who lived for 3 hours. It is reported that the emergency room
technician rocked and sang to her. After the inevitable death of the
baby, the staff members grieved so badly that hours were spent in
counseling and venting to get over the emotional trauma of the
incident. One person observed that the real tragedy is that no laws
were broken.
I hope we will continue to let ourselves be troubled by this event
and by this practice and instead of turning a cold heart to it or
saying, ``I'm tied into a certain political position I can't change.''
I hope we will prayerfully consider and at night go and search
ourselves and ask: Is this something we want to continue in America? Is
this something I want to be a part of allowing to continue in America?
People of great tradition serve in this body who seek to protect and
to serve the poorest of the poor and the weakest of the weak in our
culture and society. They serve so admirably, and they speak glowingly
about the need to protect those who are weakest. Yet, is it not this
child in the womb who is the weakest of all in our society and in our
culture? And that child cries right now. If we will just for a moment
listen, we will hear the cry of that child. Can't we just for a moment
turn from our locked in, dug in positions and say, OK, just for a
moment I will listen, I will see if I can hear that small voice that is
crying out to me: Just let me live. Let me have that God-given life
that has been promised to me. Let me have that God-given life of which
we speak so eloquently in our Declaration of Independence and our
Constitution.
We hold these Truths to be self-evident, that all Men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life. . . .
Let's live. Let's stop this culture of death from going forward.
Let's appeal to that inner voice that says let that life live.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Ms. MIKULSKI. Mr. President, I rise to speak against the Santorum
amendment and on behalf of the Durbin amendment of which I am a
cosponsor. I wish to speak on the merits of the amendment, but I will
say a few words before I debate the amendment about an issue the
Senator from Kansas has raised. I have had the opportunity to get to
know and so respect the position of the Senator from Kansas.
The Senator spoke about the culture of death. I believe we should
have a debate on the culture of death here in the Senate. I believe it
should occur among Members privately, when we are having conversations
in the lunchroom. I believe one of the things we should do as we end
this century, which has been such a ghoulish, grim, violent century, is
think about how we can affirm a life-giving culture.
I speak to my colleague from Kansas with all due respect and a desire
to work with him on those issues. The Pope, the leader of my own faith,
and the Catholic bishops of America have spoken about the culture of
death. They say when we choose life, it is ending all forms of
violence--the violence of poverty, hunger, armed conflict, weapons of
war, the violence of drug trafficking, the violence of racism, and the
violence of mindless damage to our environment.
In other statements from both the Pope and the bishops, they speak
out on famine, starvation, the spread of drugs, domestic violence, and
the denial of health care.
I say to my colleagues in the Senate, when we think about a defense
against the culture of death, we need a broader view. We are need to
talk not only about one amendment or one procedure--which I say is
quite grim--but also to talk about what we are going to do to address
these other critical issues.
We rejected a judicial nomination last week because of the nominee's
position on the death penalty. I don't know how we can be against the
culture of death and yet vote against a distinguished man who makes
serious, prudent, judicial decisions on certain death penalty cases.
We defeated an arms control treaty, with no real serious opportunity
for full debate and development of side agreements. There were
legitimate ``yellow flashing lights'' about the agreement that deserved
thorough debate. But we rushed to a vote with only hasty, last minute
hearings and no opportunity for complete investigation of the treaty.
[[Page S12885]]
I say to my colleagues, let's look at what we are going to do to
protect our own families and how we can look at promoting a culture of
life. I say that with sincerity. I say it with the utmost respect for
people whose position I will disagree with on this amendment. We need
to reach out to each other, think these issues through, and put aside
message amendments, put aside tactical advantages, put aside partisan
lines.
I say to my colleague from Kansas, I know he is deeply concerned
about the issues of culture in our own country. Many of those issues I
do share. I reach out and say to my colleagues, let's think through
what we are doing.
Having said that, I rise to support the Durbin amendment. In this
debate, I say to my colleagues, the first question is: Who really
should decide whether someone should have an abortion or not? I believe
that decision should not be made by government. I believe when
government interferes in decisionmaking, we have ghoulish, grim
policies.
Look at China, with their one child/one family official practice. The
government of China mandated abortions.
Look at Romania under the vile leadership of Ceausescu, who said any
woman of childbearing age had to prove she was not on any form of birth
control or natural method. They were mandated to have as many children
as they could.
I don't want government interfering. I think government should be
silent. We have a Supreme Court decision in Roe v. Wade. We should
respect that decision. I think it is in the interests of our country
that government now be silent on this. We should move forward. Medical
practitioners should make decisions on medical matters. It should not
be left up to politicians with very little scientific or theological
training.
There is a substantial difference on when life begins. Science and
theologians disagree on this. Some say at the moment of conception. St.
Thomas Aquinas, in my own faith, said the soul comes into a male in 6
weeks, but it takes 10 weeks for the soul to enter the body of a woman.
We would take issue with Thomas Aquinas on that. Our Supreme Court said
that given conflicting scientific viewpoints, fetal viability should
determine to what extent a state may limit access to abortion.
The Durbin amendment is consistent with the Court's framework. It
would ban all post-viability abortions except when the life or health
of the woman is at risk. The Durbin amendment provides clear
guidelines, which are narrowly but compassionately drawn, to allow
doctors to use a variety of procedures, based on medical necessity in a
particular woman's situation. It must be medically necessary in the
opinion of not one but two doctors. Both the doctor who recommends this
as a procedure and then an independent physician must certify that this
is the medically necessary and appropriate course for a particular
woman facing a health crisis.
This is why I think the Durbin amendment is a superior amendment. It
acknowledges the grave seriousness of the possibility of a medical
crisis in a late-term pregnancy that can only be resolved with the
family and the physician. To single out only one procedure means other
procedures could be used, equally as grim. What we want to do is
preserve the integrity of the doctor-patient relationship, and make
sure there is no loophole, by requiring two physicians to independently
evaluate the woman's medical needs.
So I believe the Durbin amendment is a superior way to address this
most serious issue, and I intend to support the Durbin amendment. I
recommend to my colleagues that they, too, give the Durbin amendment
serious consideration.
Let me say again what I think this debate is about. I believe it is
about the right of women facing the most tragic and rare set of
complications affecting her pregnancy to make medically appropriate or
necessary choices.
This is not a debate that should take place in the U.S. Senate. This
is a discussion that should remain for women, their health care
providers, their families and their clergy. The Senate has no standing,
no competency and no business interfering in this most private and
anguishing of decisions a woman and her family can possibly face.
That is why I so strongly oppose the Santorum bill. It would violate
to an alarming degree the right of women and their physicians to make
major medical decisions.
And that is why I rise in strong support of the Durbin amendment. I
support the Durbin alternative for four reasons.
First, it respects the constitutional underpinnings of Roe v. Wade.
Second, it prohibits all post-viability abortions.
Third, it provides an exception for the life and health of a woman
which is both intellectually rigorous and compassionate.
Finally, it leaves medical decisions in the hands of physicians--not
politicians.
The Durbin alternative addresses this difficult issue with the
intellectual rigor and seriousness of purpose it deserves. We are not
being casual. We are not angling for political advantage. We are not
looking for cover.
We are offering the Senate a sensible alternative--one that will stop
post-viability abortions, while respecting the Constitution. We believe
that it is an alternative that reflects the views of the American
people.
The Durbin amendment respects the Supreme Court's ruling in the Roe
v. Wade decision. When the Court decided Roe, it was faced with the
task of defining ``When does life begin?'' Theologians and scientists
differ on this. People of good will and good conscience differ on this.
So the Supreme Court used viability as its standard. Once a fetus is
viable, it is presumed to have not only a body, but a mind and spirit.
Therefore it has standing under the law as a person.
The Roe decision is quite clear. States can prohibit abortion after
viability, so long as they permit exceptions in cases involving the
woman's life or health. Let me be clear. Under Roe, states can prohibit
most late term abortions. And many states have done so.
In my own state of Maryland, we have a law that does just that. It
was adopted by the Maryland General Assembly and approved by the people
of Maryland by referendum. It prohibits post viability abortions. As
the Constitution requires, it provides an exception to protect the life
or health of the woman.
Like the Maryland law, the Durbin alternative respects that key
holding of Roe. It says that after the point of viability, no woman
should be able to abort a viable fetus. The only exception can be when
the woman faces a threat to her life or serious and debilitating risk
to her health.
The bill before us--the Santorum bill--only bans one particular
abortion procedure at any point in a pregnancy. By violating the
Supreme Court's standard on viability, this language would in all
probability be struck down by the courts.
In fact, this language has already been struck down in many states
because of this very reason. The proponents of the legislation know
this.
The Durbin alternative, though, bans all post viability abortions. It
doesn't create loopholes by allowing other procedures to be used.
I believe there is no Senator who thinks a woman should abort a
viable fetus for a frivolous, non-medical reason. It does not matter
what procedure is used. It is wrong, and we know it.
The Durbin alternative bans those abortions. It is a real solution.
On the other hand, S. 1692, proposed by Senator Santorum and others,
does not stop a single abortion. For those who think they support this
approach, know that it is both hollow and ineffective.
S. 1692 attempts to ban one particular abortion procedure. All it
does, though, is divert doctors to other procedures. Those procedures
may pose greater risks to the woman's health. But let me be clear--late
term abortions would still be allowed to happen. And for that reason,
the Santorum approach is ineffective.
The Durbin amendment provides a tough and narrow health exception
that is intellectually rigorous, but it is compassionate as well. It
will ensure that women who confront a grave health crisis late in a
pregnancy can receive the treatment they need.
The Amendment defines such a crisis as a ``severely debilitating
disease or
[[Page S12886]]
impairment caused or exacerbated by pregnancy.'' And we don't leave it
up to her doctor alone. We require that a second, independent physician
also certify that the procedure is the most appropriate for the unique
circumstances of the woman's life.
But I want to be very clear in this. The Durbin amendment does not
create a loophole with its health exception. We are not loophole
shopping when we insist that an exception be made in the case of
serious and debilitating threats to a woman's physical health. This is
what the Constitution requires and the reality of women's lives
demands.
Let's face it, women do sometimes face profound medical crises during
pregnancy. Some of these traumas are caused or aggravated by the
pregnancy itself. I'm referring to conditions like severe hypertension
or heart conditions.
I'm referring to pre-existing conditions--like diabetes or breast
cancer--that require treatments which are incompatible with continuing
pregnancy. Would anyone argue that these are not profound health
crises?
The Durbin amendment recognizes that to deny these women access to
the abortion that could save their lives and physical health would be
unconscionable. When the continuation of the pregnancy is causing
profound health problems, a woman's doctor must have every tool
available to respond.
I readily acknowledge that the procedure described by my colleagues
on the other side is a grim one. I do not deny that. But there are
times when the realities of women's lives and health dictates that this
medical tool be available.
I support the Durbin alternative because it is leaves medical
decisions up to doctors--not legislators. It relies on medical
judgement--not political judgement--about what is best for a patient.
Not only does the Santorum bill not let doctors be doctors, it
criminalizes them for making the best choice for their patients. Under
this bill a doctor could be sent to prison for up to two years for
doing what he or she thinks is necessary to save a woman's life or
health. I say that's wrong.
In fact, those who oppose the Durbin amendment say it is flawed
precisely because it leaves medical judgements up to physicians.
Well, who else should decide? Would the other side prefer to have the
government make medical decisions? I disagree with that. I believe we
should not substitute political judgement for medical judgement.
We need to let doctors be doctors. This is my principle whether we
are talking about reproductive choice or any health care matter.
Physicians have the training and expertise to make medical decisions.
They are in the best position to recommend what is necessary or
appropriate for their patients. Not bureaucrats. Not managed care
accountants. And certainly not legislators.
The Durbin alternative provides sound public policy, not a political
soundbite. It is our best chance to address the concerns many of us
have about late term abortions. The President has already vetoed the
Santorum bill and other similar legislation in earlier Congresses. I
believe he will veto it again.
But today we have a chance to do something real. We have an
opportunity to let logic and common sense win the day. We can do
something which I know reflects the views of the American people.
Today we can pass the Durbin amendment. We can say that we value life
and that we value our Constitution. We can make clear that a viable
fetus should not be aborted. We can say that we want to save women's
lives and women's health. The only way to do all this, Mr. President,
is to vote for the Durbin amendment.
I urge my colleagues to support the Durbin amendment.
Mrs. BOXER addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Amendment No. 2320 To The Text Intended To Be Stricken By Amendment
2319
Mrs. BOXER. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from California [Mrs. Boxer] proposes an
amendment numbered 2320 to the text intended to be stricken
by amendment 2319.
Mr. HARKIN. 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 as follows:
At the end of the bill, add the following:
SEC. . SENSE OF CONGRESS.
It is the Sense of the Congress that, consistent with the
rulings of the Supreme Court, a woman's life and health must
always be protected in any reproductive health legislation
passed by Congress.
Amendment No. 2321 to Amendment No. 2320
(Purpose: To express the sense of the Congress in support of the
Supreme Court's decision in Roe v. Wade)
Mr. HARKIN. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Iowa [Mr. Harkin] proposes amendment
numbered 2321 to amendment No. 2320.
At the appropriate place, insert the following:
SEC. __. SENSE OF CONGRESS CONCERNING ROE V. WADE.
(a) Findings.--Congress finds that--
(1) reproductive rights are central to the ability of women
to exercise their full rights under Federal and State law;
(2) abortion has been a legal and constitutionally
protected medical procedure throughout the United States
since the Supreme Court decision in Roe v. Wade (410 U.S. 113
(1973));
(3) the 1973 Supreme Court decision in Roe v. Wade
established constitutionally based limits on the power of
States to restrict the right of a woman to choose to
terminate a pregnancy; and
(4) women should not be forced into illegal and dangerous
abortions as they often were prior to the Roe v. Wade
decision.
(b) Sense of Congress.--It is the sense of the Congress
that--
(1) Roe v. Wade was an appropriate decision and secures an
important constitutional right; and
(2) such decision should not be overturned.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
Mr. HARKIN. I will ask it again, Mr. President.
Mr. SANTORUM. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
Mr. HARKIN. Mr. President, I believe I had the floor. I had the
floor.
The PRESIDING OFFICER. The Chair will note the Senator lost the floor
when he asked for the yeas and nays.
The legislative clerk proceeded to call the roll.
Mr. HARKIN. Mr. President, I ask unanimous consent that the order for
the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HARKIN. Mr. President, I withdraw my request for the yeas and
nays.
The PRESIDING OFFICER. The question is on the amendment.
Mr. HARKIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, the amendment I have offered will
basically express the sense of the Congress in support of the Supreme
Court's decision in Roe v. Wade. With all of the amendments that keep
coming up and trying to chip away at Roe v. Wade, Senator Boxer and I
decided that it was important for us to see if there was support in the
Congress for Roe v. Wade.
I know there are some groups around the United States that believe
Roe v. Wade should be overturned. I do not believe that. I think it was
an eminently wise decision. As time goes on, and as we reflect back,
the decision enunciated by Justice Blackmun becomes more and more
profound and more elegant in its simplicity and its
straightforwardness.
However, it seems as we get wrapped up in these emotionally charged
debates on partial birth abortion, we lose sight of what it is that
gave women their full rights under the laws of our Nation and our
States.
I was interested a couple of minutes ago in what Senator Mikulski
pointed out; that the eminent theologian, St. Thomas Aquinas, had
basically stipulated that in soul man--that is the putting of the soul
in the human body--occurred 6 weeks after conception for a
[[Page S12887]]
man but 10 weeks after conception for a woman. That was a theology that
held for a long time.
I studied Saint Thomas Aquinas when I was in Catholic school. He was
an eminent theologian, as I said. We look back and we say: That is
ridiculous. The very division of 6 weeks for a man and 10 weeks for a
woman is kind of ridiculous. Medical science has progressed. We know a
lot of things they did not know at that time. What will we know 50
years from now that we do not know today?
Women, through the centuries, as we have developed more and more the
concept of the rights of man--and I use man in the terms of mankind,
all humans, the human race--that as we enlarge the concept of human
rights--those rights we have that cannot legitimately be interfered
with or trespassed upon by the power of any government--as we
progressed in our thinking about those human rights, all too often
women were left out of the equation.
It was not until recent times, even in our own country, that women
had the right to own property. It was not until recent times that women
even had the right to vote in this country, not to say what rights are
still denied women in other countries around the globe.
As we progressed in our thinking of human rights, we have come a long
way from Thomas Aquinas who said that for some reason a man gets a soul
a lot earlier than a woman gets a soul. Yes, we've come a long way.
I believe our concept of human rights now is basically that human
rights applies to all of us, regardless of gender, regardless of
position at birth, regardless of nationality or station in life, race,
religion, nationality; that human rights inure to the person.
One of the expansions of those human rights was for women to have the
right to choose. After all, it is the female who bears children. That
particular right inures to a woman. It was the particular genius of Roe
v. Wade that Justice Blackmun laid out an approach to reproductive
rights that basically guarantees to the woman in the first trimester a
total restriction on the State's power to interfere with that decision.
In the second trimester, the State may, under certain inscriptions,
interfere. And in the third trimester, after the further decision of
the Casey case, the States may interfere to save the life or health of
the mother.
We have a situation now where women in our country are given--I
should not use the word ``given''--but have attained their equal rights
and their full human rights under law.
That was Roe v. Wade. Since that time, many in the legislatures of
our States and many in this legislature, the Congress of the United
States--the House and the Senate--have sought repeatedly to overturn
Roe v. Wade; if not totally to overturn it, but to chip away at it--a
little bit here, a little bit there, with the final goal to overturn
Roe v. Wade.
According to CRS, only 10 pieces of legislation were introduced in
either the House or Senate before the Roe decision. Since 1973, more
than 1,000 separate legislative proposals have been introduced. The
majority of these bills have sought to restrict abortions.
Unfortunately, what is often lost in the rhetoric and in some of this
legislation--is the real significance of the Roe decision.
The Roe decision recognized the right of women to make their own
decisions about their reproductive health. The decision whether to bear
a child is profoundly private and life altering. As the Roe Court
understood, without the right to make autonomous decisions about
pregnancy, a woman could not participate freely and equally in society.
I do not believe that any abortion is desirable--nobody does. As
Catholic and a father, I've struggled with it myself. However, I do not
believe that it is appropriate to insist that my personal views be the
law of the land.
I think there are some things that Congress can do to prevent
unintended pregnancy and reduce abortion by increasing funding for
family planning, mandating insurance coverage for contraception and
supporting contraception research.
Mr. President, I strongly urge my colleagues to support this
resolution. I believe it would establish the one important principle
that we can agree on--that despite the difference in our views, we will
not strip away a woman's fundamental right to choose.
So I think we need to make it clear, we need to make it clear that we
have no business--especially we in the Congress of the United States--
have no business interfering with a woman's fundamental right to
choose.
Mrs. BOXER. Would my friend yield for a question?
Mr. HARKIN. Without losing my right to the floor, I would be
delighted to yield for a question.
Mrs. BOXER. I am very grateful to the Senator from Iowa for this
amendment. It is interesting to me; in all the years I have been in the
Senate, we have never had a straight up-or-down vote on whether this
Senate agrees with the Supreme Court decision that gave women the right
to choose.
Mr. HARKIN. Yes.
Mrs. BOXER. So I am very grateful to my friend for giving us a chance
to talk about that because I wonder if my friend was aware that prior
to the legalization of abortion, which is what Roe did in 1973, the
leading cause of maternal death in this Nation was illegal abortion.
Was my friend aware of that?
Mr. HARKIN. Yes, I was. I didn't know the exact figure, but I knew
many women died or were permanently injured and disabled because of
illegal abortions performed in this country--because they had no other
option.
Mrs. BOXER. Exactly.
Mr. HARKIN. I say to my colleague from California, I want to thank
her for her stalwart support and defense of Roe v. Wade through all
these years. I follow in her footsteps, I can assure you. But I
remember as a kid growing up in a small town in rural Iowa, that it was
commonplace knowledge, if you had the money, and you were a young woman
who became pregnant, you could go out of State; you could go someplace
and have an abortion. But if you were poor and had nowhere else to go,
you went down to sought out someone who would do an illegal abortion.
Those are the women who suffered and died and were permanently
disfigured.
Mrs. BOXER. I say to my friend, I remember those days. Further, even
when women who did have the wherewithal, sometimes they resorted to a
back-alley abortion and paid the money----
Mr. HARKIN. Sure.
Mrs. BOXER. Under the table and risked their lives and their ability
to have children later and were scarred for life.
Mr. HARKIN. Sure
Mrs. BOXER. So the Roe v. Wade decision, as my friend has pointed
out, in his words, was an ``elegant decision.'' And why does he say
that? Because it did balance the mother's rights with the rights of the
fetus. Because it said, previability, the woman had the unfettered
right to choose and in the late-term the State could regulate.
Roe v. Wade was a ``Solomon-like'' decision in that sense. I again
want to say to my friend, I greatly appreciate him offering this
second-degree amendment to my amendment. I think it is important for us
to support Roe v. Wade in this Congress. I think if we do, it will be a
relief to many women and families in this country who are concerned
that that basic right might be taken away because there are many people
running for the highest office in the land who do not support Roe, who
want to see it overturned, who might well appoint Judges to the Court
who would take away this right to choose, which is hanging by a thread
in Court as it is. So I, most of all, thank my friend for offering this
amendment.
Mr. HARKIN. I thank the Senator from California. I thank her for the
question. I will elaborate on that in just a minute.
Again, I say to the Senator from California, we do need to send a
strong message that the freedom to choose is no more negotiable than
the freedom to speak or the freedom to worship. It is nonnegotiable.
This ruling of Roe v. Wade has touched all of us in very different
ways. As the Senator from California just pointed out, it is estimated
that as many as 5,000 women died yearly from illegal abortions before
Roe.
In the 25 years since Roe, the variety and level of women's
achievements have reached unprecedented levels. The Supreme Court
recently observed:
The ability of women to participate equally in the economic
and social life of the Nation has been facilitated by their
ability to control their reproductive lives.
[[Page S12888]]
I will also quote Justices O'Connor, Kennedy, and Souter in the Casey
case:
At the heart of liberty is the right to define one's own
concept of existence, of meaning, of the universe, and of the
mystery of human life. Beliefs about these matters could not
define the attributes of personhood were they formed under
compulsion of the State.
I think that is what this is all about--whether we will use the heavy
hand of the State to enforce certain individuals' concepts of when life
begins, how life begins, when can a person have an abortion, when can a
person not. People are divided on this issue. Some people are uncertain
about it. I quarrel with myself all the time about it because it is as
multifaceted as there are individual humans on the face of the Earth.
I would not sit in judgment on any person who would choose to have an
abortion, especially a woman who went through the terrifying,
agonizing, soul-wrenching procedure of having a late-term abortion
because her health and her life was in danger. That must be one of the
most soul-wrenching experiences a person can go through.
And you want me to sit in judgment on that? The Senator from
Pennsylvania wants to be able to say: Here it is. You can't deviate
from that. I am sorry; that is not our role; that is not the role of
the Government or the State.
That is why, again, I believe it is particularly important that we
cut through the fog that surrounds this issue and get to the heart of
it, which is Roe v. Wade.
I used the word ``elegant.'' It means simplistic, simplicity.
Elegant: Not convoluted, not hard to understand, not shrouded and
complex, but elegant, straightforward, simple in its definition. That
is Roe v. Wade.
There are now those who want to come along and change it and make it
complex, indecipherable, benefiting maybe one person one way, adding to
the detriment of another person another way, so that we are right back
where we were before Roe v. Wade.
So I believe very strongly that we need to express ourselves on this
sense-of-the-Senate resolution. That is why I will be asking for a
rollcall vote at the appropriate time because it is going to be
important for us to send a message on how important it is to preserve a
woman's fundamental right to choose under Roe v. Wade.
Mr. DURBIN. Will the Senator yield for a question?
Mr. HARKIN. I am delighted to yield for a question.
Mr. DURBIN. I want to make sure it is clear, for those who may be
following this debate, that the underlying bill is the Santorum bill,
which would ban a particular procedure at any point in the stage of
pregnancy.
Mr. HARKIN. Right.
Mr. DURBIN. This type of approach has been stricken, I believe, in 19
different States as unconstitutional.
I offered a substitute which related strictly to late-term abortions,
those occurring after viability, after a fetus could survive, and said
that we would only allow an abortion in an emergency circumstance where
the life of the mother was at stake or the situation where continuing
the pregnancy ran the risk of grievous physical injury to the mother. I
believe, of course, the Court will, if it comes to that, ultimately
decide what I have offered, being postviability, is consistent with Roe
v. Wade which drew that line. Before that fetus is viable and can
survive outside the womb, the woman has certain rights. When the
viability occurs, then those rights change, according to Roe v. Wade.
To make sure I understand, the Senator from Iowa is offering an
amendment that is not antagonistic to my amendment but, rather, wants
to put the Senate on record on the most basic question about Roe v.
Wade as to whether or not the Senate supports it.
My question to the Senator is this: Is the Senator saying in his
amendment, in the conclusion of the amendment, Roe v. Wade was an
appropriate decision and secures an important constitutional right, and
such decision should not be overturned--that is the conclusion of his
amendment--is he saying that if we are to keep abortion legal in this
country and safe under Roe v. Wade, we vote for his amendment and those
who believe abortion should be outlawed or prohibited or illegal would
vote against his amendment? Is that the choice?
Mr. HARKIN. The Senator from Illinois has stated it elegantly, very
simply and straightforward. That is the essence of the amendment, and
the Senator is correct. Voting on the amendment, which I offered, a
vote in favor of my amendment would be a vote to uphold Roe v. Wade and
a woman's right to choose. A vote against it would be a vote to
overturn Roe v. Wade and to take away a woman's right to choose.
The amendment I have offered would be consistent with the amendment
offered by the Senator from Illinois.
Mr. DURBIN. I thank the Senator from Iowa.
A further question to the Senator from Iowa, if he will yield. The
Senator is from a neighboring State. There are many parts of Iowa that
look similar to my State, particularly in downstate Illinois. On this
controversial issue--there are those who have heartfelt strong feelings
against abortion, Roe v. Wade; those who have heartfelt strong feelings
on the other side in support of a woman's right to choose and Roe v.
Wade--I have found the vast majority of people I meet somewhere in
between. It is my impression most people in America have concluded
abortion should be safe and legal, but it should have some
restrictions. I ask the Senator from Iowa, has the Senator from Iowa
had that same experience in his State of Iowa?
Mr. HARKIN. I answer the Senator affirmatively. I have had that same
experience, yes.
Mr. DURBIN. If I might further ask the Senator from Iowa a question,
what he is saying is this vote on the Harkin amendment tries to answer
the first and most basic question: Should abortion procedures in
America remain safe and legal, consistent with Roe v. Wade, should we
acknowledge a woman's right of privacy and her right to choose with her
physician and her family and her conscience as to the future of her
pregnancy within the confines of Roe v. Wade? That is the bottom line,
is it not, of his amendment?
Mr. HARKIN. The Senator is absolutely correct.
Mr. DURBIN. I say to the Senator, in closing, I think this is an
important vote. I think we have walked around this issue in 15
different directions in the time I have served on Capitol Hill. I
commend the Senator from Iowa for offering this amendment. I think it
gets to the heart of the question as to those who would basically
outlaw abortion in America and those who believe Roe v. Wade should be
continued.
Mr. HARKIN. I thank my colleague and friend from Illinois for
enlightening this issue and for clearly drawing what this amendment is
all about.
Again, a vote in favor of the amendment which I have offered states
we will support Roe v. Wade, that Roe v. Wade should be the law, that a
woman's right to choose should be kept under the provisions of Roe v.
Wade, as further elaborated in the Casey case. A vote against my
amendment would say you would be in favor of overturning Roe v. Wade
and taking away a woman's fundamental right to choose.
I agree with the Senator from Illinois.
In closing my remarks, knowing others want to speak, the Roe decision
recognized the right of women to make their own decisions about their
reproductive health. The decision is a profoundly private, life-
altering decision. As the Roe Court understood, without the right to
make autonomous decisions about pregnancy, a woman could not
participate freely and equally in our society.
I think there are some things we ought to be doing to prevent
unintended pregnancies and reduce abortions. We could, for example,
increase funding for family planning. Every time we try to do that,
there are those who are opposed to increasing funding for family
planning. We could mandate insurance coverage for contraception. That
could help. But, no, there are those who say we shouldn't do that
either. We could have more support for contraception research. There
are those who say, no, we shouldn't do that either. And those who are
opposed, by and large, to increasing funding for family planning and
insurance coverage for contraception and contraception research are the
same ones who want to overturn Roe v. Wade or take
[[Page S12889]]
away a woman's right to have a late-term abortion in the case of
grievous health or life-threatening situations.
A little bit off the subject of Roe v. Wade, but which I think is
particularly important to point out, is that Saturday, October 23, 3
days from today, will mark the 1-year anniversary of the assassination
of Dr. Barnett Slepian, who was murdered in his home in Amherst, NY, 1
year ago this Saturday. As most are aware, there have been five sniper
attacks on U.S. and Canadian physicians who perform abortions since
1994. Each of these attacks has occurred on or close to Canada's
Remembrance Day, November 11.
All of the victims in these attacks were shot in their homes by a
hidden sniper who used a long-range rifle. Dr. Slepian tragically was
killed. Three other physicians were seriously wounded in these attacks.
I am reading a letter sent to the majority leader, Senator Lott,
dated October 18, signed by the executive director of the National
Abortion Federation, the president of Planned Parenthood Federation of
America, the executive director of the American Medical Women's
Association, the executive director of Medical Students for Choice, the
president and CEO of the Association of Reproductive Health
Professionals, and the executive director of Physicians for
Reproductive Choice and Health. All of these signed the letter to
Senator Lott spelling out what I said. The letter goes on:
Federal law enforcement officials are urging all women's
health care providers, regardless of their geographic
location, to be on a high state of alert and to take
appropriate protective precautions during the next several
weeks. Security directives have been issued to all physicians
who perform abortions for clinics or in their private
practices, and to all individuals who have been prominent on
the abortion issue.
Senator Lott, on behalf of our physician members, and in
the interest of the public safety of the citizens of the US
and Canada, we urge you to reconsider the scheduling of a
floor debate on S-1692 at this time. As you are aware, each
time this legislation has been considered, extremely
explicit, emotional and impassioned debate has been aroused.
We have grave fears that the movement of this bill during
this particularly dangerous period has the potential to
inflame anti-abortion violence that might result in tragic
consequences.
We sincerely hope that you will take the threats of this
October-November period as seriously as we do, and that you
will use your considerable influence to ensure that the
Senate does not inadvertently play into the hands of
extremists who might well be inspired to violence during this
time. We urge you to halt the movement of S. 1692. Please
work with us to ensure that the senseless acts of violence
against U.S. citizens are not repeated in 1999.
I ask unanimous consent that the full text of this letter be printed
in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
October 18, 1999.
Hon. Trent Lott,
United States Senate,
Washington, DC.
Dear Senator Lott: Saturday, October 23, will mark the one-
year anniversary of the assassination of Dr. Barnett Slepian,
who was murdered in his home in Amherst, New York. As you are
undoubtedly aware, there have been five sniper attacks on
U.S. and Canadian physicians who perform abortions since
1994. Each of these attacks has occurred on or close to
Canada's Remembrance Day, November 11. All of the victims in
these attacks were shot in their homes by a hidden sniper who
used a long-range rifle. Dr. Slepian was killed. Three other
physicians were seriously wounded in these attacks.
Federal law enforcement officials are urging all women's
health care providers, regardless of their geographic
location, to be on a high state of alert and to take
appropriate protective precautions during the next several
weeks. Security directives have been issued to all physicians
who perform abortions for clinics or in their private
practices, and to all individuals who have been prominent on
the abortion issue.
Senator Lott, on behalf our physician members, and in the
interest of the public safety of the citizens of the US and
Canada, we urge you to reconsider the scheduling of a floor
debate on S-1692 at this time. As you are aware, each time
this legislation has been considered, extremely explicit,
emotional, and impassioned debate has been aroused. We have
grave fears that the movement of this bill during this
particularly dangerous period has the potential to inflame
anti-abortion violence that might result in tragic
consequences.
We sincerely hope that you will take the threats of this
October--November period as seriously as we do, and that you
will use your considerable influence to ensure that the
Senate does not inadvertently play into the hands of
extremists who might well be inspired to violence during this
time. We urge you to halt the movement of S. 1692. Please
work with us to ensure that the senseless acts of violence
against US citizens are not repeated in 1999.
Vicki Saporta,
Executive Director, National Abortion Federation.
Eileen McGrath, JD, CAE,
Executive Director, American Medical Women's Association.
Wayne Shields,
President and CEO, Association of Reproductive Health
Professionals.
Gloria Feldt,
President, Planned Parenthood Federation of America.
Patricia Anderson,
Executive Director, Medical Students for Choice.
Jodi Magee,
Execuvite Director, Physicians for Reproductive Choice and
Health.
Mr. HARKIN. Mr. President, there is one other thing I want to
mention. I am going to read a letter because this person is a personal
friend of mine, someone I have gotten to know over the years. I believe
the Senator from California has a picture of Kim Koster. I ask a page
to bring me the picture back here, if I may have that.
This photo is Kim Koster and her husband, Dr. Barrett Koster. They
are both friends of mine, whom I have known for I guess about 3 or 4
years. I am going to read her letter in its entirety:
My name is Kim Koster. My husband, Dr. Barrett Koster, and
I have been married for more than seven years. We have known
since before we were married that we wanted very much to have
children.
To our joy, in November of 1996 we discovered that we were
expecting. The news was a thrill, to us and to our family and
friends. We were showered with gifts and hand-me-downs, new
toys, books and love. Barry's family gave us a 19th-century
cradle which had rocked his family to sleep since before his
grandmother Sophie was born more than 100 years ago.
Our first ultrasound was scheduled a little more than four
months into the pregnancy. On Thursday, February 20, we saw
our baby and spent five short minutes rejoicing in the new
life, and then the blow fell. The radiologist informed us
that he had ``significant concerns'' about the size of the
baby's head. His diagnosis was the fatal neural tube defect
known as anencephaly, or the lack of a brain. After four
months of excitement and joy, our world came crashing down
around us.
Once the diagnosis was made, there was no further medical
treatment available for me in our hometown, and we were
referred to the University of Iowa Hospitals and Clinics in
Iowa City. Our first OB appointment there was set for Monday
morning. My husband and I spent that long weekend, the
longest of our lives, doing research on anencephaly, talking
with family and friends, and hearing personal stories about
the fate of anencephalic babies.
In Iowa City, a genetics OB specialist examined a new
ultrasound and immediately confirmed the diagnosis. An alpha-
feto-protein blood test and amniotic fluid sample only drove
the truth harder home. Our fetus had only a rudimentary
brain. There were blood vessels, which enabled the heart to
beat, and ganglion, which enabled basic motor function. There
was no cerebellum and no cerebral cortext. There was no skull
above the eyes.
I had been preparing for pregnancy for more than a year
with diet, exercise and prenatal vitamins, including the dose
of folic recommended to prevent neural tube defects. Yet we
still lost our child to one of the most severe and lethal
birth defects known. Our baby had no brain--would never hear
the Mozart and Bach I played for it every day on our great-
grandmother's piano, would never look up into our eyes or
snuggle close to our hearts, would never even have an
awareness of its own life.
On Tuesday, February 25, 1997, my husband and I chose to
end my pregnancy with a common abortion procedure known as
``D and E.'' As difficult as it was, I literally thank God
that I had that option. As long as there are families who
face the devastating diagnosis we received, abortions must
remain a safe and legal alternative.
In 1998, Barry and I discovered to our delight that I was
pregnant again. Although we were overjoyed, our happiness was
tempered by the knowledge that we had a 1-in-25 chance of a
second anencephalic pregnancy. This time, we asked our loved
ones to hold off on the baby gifts, we played no Bach, and
every week was a mix of excitement and unavoidable worry. And
on July 17, 1998, an ultrasound revealed the worst. We had a
second anencephalic pregnancy--a second daughter lost to this
lethal birth defect.
[[Page S12890]]
Fortunately for my medical care, the so-called ``partial
birth abortion'' bans have been vetoed by President Clinton,
and my doctors were able to provide me with a safe,
compassionate procedure that brought this second tragic
pregnancy to an end. And thanks to those doctors and their
ability to give me that care, my recovery has been rapid--
enabling Barry and I to plan to try again.
But if this bill becomes law, we would not be able to do
so. For the chances of our having a third anencephalic
pregnancy are all the way up to 1 in 4, and this bill would
ban any procedures that would help us. It would force me to
carry another doomed child through all nine months. That idea
is far more horrifying than all the unreal anti-choice
rhetoric that can be manufactured, for the reality is that
this is a terrible law, a grievous interference between
doctor and patient, and would only compound the tragedy and
heartache faced by families like us.
Please protect the health of women and families like mine,
and reject S. 1692.
There is nothing one can add to that. S. 1692 would say that the Kim
Kosters in families across the country that we legislators--I am not a
doctor, I am not a theologian, I am not a psychiatrist or a
psychologist; but the bill proposed by the Senator from Pennsylvania
would say that we know more than all of them, that we stand in the
judgment seat of the Mrs. Kosters: We are going to decide for you.
Attorneys? I am an attorney. Maybe some of us are teachers, I don't
know. Maybe some are social workers or business people. There are a
variety of different people here on the floor of the Senate. But
somehow we get to tell you: Mrs. Koster, you and your husband have no
right to decide. We are going to do it for you. Our decision is, no
matter what--even under these terrible circumstances--you are going to
have to carry that to term and bear the consequences of that. Maybe
there are some in this body who want to sit in that kind of judgment
seat. Count me out. Count me out. I leave these decisions to Kim and
her husband, to her doctor, to her own faith, to her own religion to
make those very profound, anxiety-producing, soul-wrenching decisions.
That is why I have fought for this amendment--to state loudly and
clearly that Roe v. Wade gave women that right and we don't want it
overturned.
I yield the floor.
Mrs. BOXER. Mr. President, will my friend hold the floor for a moment
so I may ask him a question?
The PRESIDING OFFICER. Does the Senator from Iowa yield the floor?
Mr. HARKIN. I yield for a question. I didn't realize. I apologize.
Mrs. BOXER. Thank you very much.
I say to my friend that I thank him for sharing the story on the
floor of the Senate. He has the photo of Kim and her husband up there.
He read the story into the Record. I think it is very appropriate that
the Senator from Iowa do so because this is a couple whom he knows.
I am, in a way, happy that my friend was not on the floor when the
Senator from Pennsylvania used some very tough words in talking about
this procedure and calling doctors who perform it executioners.
I say to my friend, in light of the poignant story he read to us,
when he thinks of the doctor who helped this couple through a
traumatic, horrific experience twice, what are his feelings about the
doctor who performed that particular procedure?
Mr. HARKIN. I am sorry if someone referred to them as executioners.
That, I think, is totally inappropriate and inflammatory and could lead
to tragic consequences in our country.
I don't know the doctors who helped Kim Koster. But from talking to
her, they were sensitive. They are doctors who wanted Kim and her
husband to know every facet of what was happening and wanted them to
make their own decision. They are doctors who have a lot of compassion
and professionalism and, under the legal framework, were able to help
this couple get through a very bad time and enabled them to move on
with their lives and to plan on another child.
If that had not been there--if we had taken Roe v. Wade away or if we
had adopted S. 1692--I don't know what would have happened to Kim
Koster and her husband or whether they would be here today planning to
try again to raise a family.
I say to my colleague from California that I believe Kim Koster is an
extremely brave individual. In fact, I would say to anyone who wants to
talk to her about what happened to her, she is out in the reception
room right now. She would be glad to tell them why it is important to
not only adhere to Roe v. Wade but to defeat S. 1692 that would have
taken away her reproductive rights and under very tragic circumstances.
Mrs. BOXER. Mr. President, I ask my friend a final question. Will my
friend be willing to read one more time, if he can find it, the
statement that was made by Justices O'Connor, Kennedy, and Souter, all
Justices appointed under a Republican President, when they made their
statement on Casey because I really hope colleagues will listen to
this. I think if they listen to it, they will vote for my friend's
amendment to reaffirm Roe v. Wade and will also be against the Santorum
underlying bill.
If my friend would repeat that, I would greatly appreciate it.
Mr. HARKIN. I thank my friend from California because I believe this
statement by Justices O'Connor, Kennedy, and Souter is really aimed at
us. They are aiming it at legislators who somehow sit in judgment--
legislators who would put themselves in the position of defining for
women what their reproductive rights are. Here is the quote:
At the heart of liberty--
At the heart of liberty--
is the right to define one's own concept of existence, of
meaning, of the universe, and of the mystery of human life.
Beliefs about these matters could not define the attributes
of personhood were they formed under the compulsion of the
state.
That is the quote. I believe it is directed at us.
Mr. President, I don't know how long people want to talk on this. I
know the day is getting late. I ask unanimous consent that we have 30
minutes equally divided before we have an up-or-down vote on this
amendment.
The PRESIDING OFFICER. Is there objection?
Mr. SANTORUM. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. HARKIN. Mr. President, I ask unanimous consent that we have 60
minutes equally divided before a vote.
Mr. SANTORUM. I will be happy to work out--reserving the right to
object--a time arrangement once people on our side want to proceed. But
at this point I have to object. We would be happy to work something
out. Right now, I just can't do that.
Mr. HARKIN. I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Thank you, Mr. President.
I am not going to debate the Harkin amendment. The Harkin amendment
has nothing to do with the bill that is before us. The bill that is
before us, as I have said over and over again, and I will say it again,
is not about Roe v. Wade. One of the reasons we believe this bill is
getting bipartisan support, as well as supporters on both sides of the
abortion issue, is that it is outside the realm of Roe v. Wade.
I remind everyone that this is a baby in the process of being born.
This is a baby who is almost outside of the mother except for 3 inches.
Again, I repeat that in Roe v. Wade, the original decision, which the
Senator from Iowa was referring to, the Court let stand a Texas law
that said you cannot kill a baby in the process of being born.
Again, we can have a vote on this. But we might as well be having a
vote or another vote on the chemical weapons treaty. It is as related.
This is not the subject. It is a completely different subject. If they
want to have a vote on it, obviously the Senator has the right to offer
an amendment. That is within the rights here in the Senate, and I
certainly will stand by his right to offer that.
But to suggest somehow that the underlying bill is an assault on Roe
v. Wade is again proof positive that when it comes to the real factual
debate on what this procedure does, the response is: Well, let's change
the subject.
I don't want to change the subject. Let's focus in on the facts. The
facts are not anecdotes from people who aren't physicians about what
happened to them. What happened in these cases you see and the pictures
you see--I always believe, if you argue the facts, argue the facts; if
you can't argue the facts, argue the law; if you can't argue the law,
then appeal to the sentimentality or emotion of the situation.
[[Page S12891]]
That is what this is. These are horrible situations, tragic
situations, of pregnancies that have gone awry late in pregnancy. I
sympathize with these people more than you know, to have something such
as this happen for a child that you want desperately. I know the
difficult decisions they have to make. I know what doctors tell you and
how they influence your decision.
But the fact of the matter is, we can't in a legislative forum
dealing with such an important issue deal with emotional stories as
powerful as they are unless we look at the facts underlying those
stories. The facts underlying those stories are very clear.
I ask unanimous consent to have printed in the Record letters from
the Physicians' Ad Hoc Coalition for Truth--fact--about two cases
discussed by the Senator from Illinois where they talk about how this
was the only option available, or this saved our life, or our future
fertility, et cetera. Again, letters from this Physicians' Ad Hoc
Coalition for Truth. One is from Pamela Smith, a director of medical
education of the Department of Obstetrics and Gynecology at Mount Sinai
Medical Center in Chicago, about the case of Vicki Stella and the case
of Coreen Costello, another letter from the Physicians' Ad Hoc
Coalition for Truth.
I ask unanimous consent to have those printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Physicians' Ad Hoc
Coalition for Truth,
Alexandria, VA, September 23, 1996.
Dear Member of Congress: My name is Dr. Pamela E. Smith. I
am a founding member of PHACT (Physicians' Ad-hoc Coalition
for Truth). This coalition of over three hundred medical
providers nationwide (which is open to everyone, irrespective
of their political stance on abortion) was specifically
formed to educate the public, as well as those involved in
government, in regards to disseminating medical facts as they
relate to the Partial-Birth Abortion procedure.
In this regard, it has come to my attention that an
individual (Ms. Vicki Stella, a diabetic) who underwent this
procedure, who is not medically trained, has appeared on
television and in Roll Call proclaiming that it was necessary
for her to have this particular form of abortion to enable
her to bear children in the future. In response to these
claims I would invite you to note the following:
1. Although Ms. Stella proclaims this procedure was the
only thing that could be done to preserve her fertility,the
fact of the matter is that the standard of care that is used
by medical personnel to terminate a pregnancy in its later
stages does not include partial-birth abortion. Cesarean
section, inducing labor with pitocin or protoglandins, or (if
the baby has excess fluid in the head as I believe was the
case with Ms. Stella) draining the fluid from the baby's head
to allow a normal delivery are all techniques taught and used
by obstetrical providers throughout this country. These are
techniques for which we have safety statistics in regards to
their impact on the health of both the woman and the child.
In contrast, there are no safety statistics on partial-birth
abortion, no reference of this technique on the national
library of medicine database, and no long term studies
published that prove it does not negatively affect a woman's
capability of successfully carrying a pregnancy to term in
the future. Ms. Stella may have been told this procedure was
necessary and safe, but she was sorely misinformed.
2. Diabetes is a chronic medical condition that tends to
get worse over time and that predisposes individuals to
infections that can be harder to treat. If Ms. Stella was
advised to have an abortion most likely this was secondary to
the fact that her child was diagnosed with conditions that
were incompatible with life. The fact that Ms. Stella is a
diabetic, coupled with the fact that diabetics are prone to
infection and the partial-birth abortion procedure requires
manipulating a normally contaminated vagina over a course of
three days (a technique that invites infection) medically I
would contend of all the abortion techniques currently
available to her this was the worse one that could have been
recommended for her. The others are quicker, cheaper and do
not place a diabetic at such extreme risks for life-
threatening infections.
3. Partial-birth abortion is, in fact, a public health
hazard in regards to women's health in that one employs
techniques that have been demonstrated in the scientific
literature to place women at increased risks for uterine
rupture, infection, hemorrhage, inability to carry
pregnancies to term in the future and material death. Such
risks have even been acknowledged by abortion providers such
as Dr. Warren Hern.
4. Dr. C. Everett Koop, the former Surgeon General,
recently stated in the AMA News that he believes that people,
including the President, have been misled as to ``fact and
fiction'' in regards to third trimester pregnancy
terminations. He said, and I quote, ``in no way can I twist
my mind to see that the late term abortion described . . . is
a medical necessity for the mother . . . I am opposed to
partial-birth abortions.'' He later went on to describe a
baby that he operated on who had some of the anomalies that
babies of women who have partial-birth abortions had. His
particular patient, however, went on to become the head nurse
in his intensive care unit years later!
I realize that abortion continues to be an extremely
divisive issue in our society. However, when considering
public policy on such a matter that indeed has medical
dimensions, it is of the utmost importance that decisions are
based on facts as well as emotions and feelings. Banning this
dangerous technique will not infringe on a woman's ability to
obtain an abortion in the early stage of pregnancy or if a
pregnancy truly needs to be ended to preserve the life or
health of the mother. What a ban will do is insure that women
will not have their lives jeopardized when they seek an
abortion procedure.
Thank you for your time and consideration.
Sincerely,
Pamela Smith, M.D.,
Director of Medical Education, Department of Obstetrics
and Gynecology, Mt. Sinai Medical Center, Chicago, IL,
Member, Association of Professors of Obstetrics and
Gynecology.
____
the case of coreen costello--partial-birth abortion was not a medical
necessity for the most visible ``personal case'' proponent of procedure
Coreen Costello is one of five women who appeared with
President Clinton when he vetoed the Partial-Birth Abortion
Ban Act (4/10/96). She has probably been the most active and
the most visible of those women who have chosen to share with
the public the very tragic circumstances of their pregnancies
which, they say, made the partial-birth abortion procedure
their only medical option to protect their health and future
fertility.
But based on what Ms. Costello has publicly said so far,
her abortion was not, in fact, medically necessary.
In addition to appearing with the President at the veto
ceremony, Ms. Costello has twice recounted her story in
testimony before both the House and Senate; the New York
Times published an op-ed by Ms. Costello based on this
testimony; she was featured in a full page ad in the
Washington Post sponsored by several abortion advocacy
groups; and, most recently (7/9/96) she has recounted her
story for a ``Dear Colleague'' letter being circulated to
House members by Rep. Peter Deutsch (FL).
Unless she were to decide otherwise, Ms. Costello's full
medical records remain, of course, unavailable to the public,
being a matter between her and her doctors. However, Ms.
Costello has voluntarily chosen to share significant parts of
her very tragic story with the general public and in very
highly visible venues. Based on what Ms. Costello has
revealed of the medical history--of her own record and for
the stated purpose of defeating the Partial-Birth Abortion
Ban Act--doctors with PHACT can only conclude that Ms.
Costello and others who have publicly acknowledged undergoing
this procedure ``are honest women who were sadly misinformed
and whose decision to have a partial-birth abortion was based
on a great deal of misinformation'' (Dr. Joseph DeCook, Ob/
Gyn, PHACT Congressional Briefing, 7/4/96). Ms. Costello's
experience does not change the reality that a partial birth
abortion is never medically indicated--in fact, there are
available several alternative, standard medical procedures to
treat women confronting unfortunate situations like Ms.
Costello had to face.
The following analysis is based on Ms. Costello's public
statements regarding events leading up to her abortion
performed by the late Dr. James McMahon. This analysis was
done by Dr. Curtis Cook, a perinatologist with the Michigan
State College of Human Medicine and member of PHACT.
``Ms. Costello's child suffered from at least two
conditions: `polyhydramnios secondary to abnormal fetal
swallowing,' and `hydrocephalus'. In the first, the child
could not swallow the amniotic fluid, and an excess of the
fluid therefore collected in the mother's uterus. The second
condition, hydrocephalus, is one that causes an excessive
amount of fluid to accumulate in the fetal head. Because of
the swallowing defect, the child's lungs were not properly
stimulated, and an underdevelopment of the lungs would likely
be the cause of death if abortion had not intervened. The
child had no significant chance of survival, but also would
not likely die as soon as the umbilical cord was cut.
The usual treatment for removing the large amount of fluid
in the uterus is a procedure called amniocentesis. The usual
treatment for draining excess fluid from the fetal head is a
procedure called cephalocentesis. In both cases the excess
fluid is drained by using a thin needle that can be placed
inside the womb through the abdomen (``transabdominally''--
the preferred route) or through the vagina
(``transvaginally.'') The transvaginal approach however, as
performed by Dr. McMahon on Ms. Costello, puts the woman at
an increased risk of infection because of the non-sterile
environment of the vagina. Dr. McMahon used this approach
most likely because he had no significant expertise in
obstetrics and gynecology. In other words, he may not have
been able to do it well
[[Page S12892]]
transabdominally--the standard method used by ob/gyns--
because that takes a degree of expertise he did not possess.
After the fluid has been drained, and the head decreased in
size, labor would be induced and attempts made to deliver the
child vaginally.
Ms. Costello's statement that she was unable to have a
vaginal delivery, or, as she called it, `natural birth or an
induced labor,' is contradicted by the fact that she did
indeed have a vaginal delivery, conducted by Dr. McMahon.
What Ms. Costello had was a breech vaginal delivery for
purposes of aborting the child, however, as opposed to a
vaginal delivery intended to result in a live birth. A
cesarean section in this case would not be medically
indicated--not because of any inherent danger--but because
the baby could be safely delivered vaginally.''
Given these medical realities, the partial-birth abortion
procedure can in no way be considered the standard, medically
necessary or appropriate procedure appropriate to address the
medical complications described by Ms. Costello or any of the
other women who were tragically misled into believing they
had no other options.''
Mr. SANTORUM. They clearly state this was not medically necessary;
this, in fact, was not in the best interests of the patient in this
case; and this was, in fact, not good medicine.
Did it have a good result? Yes, it did in the sense the health of the
women was not jeopardized. That does not mean there is a good result.
It was the best practice. A lot of things are done that turn out OK
that may not have been the best thing to do. I think that is what we
are saying. More importantly, it is not medically necessary. In fact,
it is medically more dangerous.
A group that said it ``may be'' necessary, the American College of
Obstetricians and Gynecologists, 3 years ago said: Clearly, it is not
the only option. The proponents of partial-birth abortion are saying it
is medically necessary. They want to keep this option open. If they
don't, it is a violation of Roe v. Wade.
They stand behind anecdotes. In some cases, including the Viki Wilson
case that Senator Durbin brought up, it is clear from her testimony she
did not have a partial-birth abortion. She says in her testimony the
baby was dead inside of her womb and then the baby was delivered. If
the baby dies inside the womb, it is outside the definition of the
bill. The definition of the bill says a living baby is born. The baby
was not living.
I don't want to pick apart the very tragic stories and make a very
difficult situation even more difficult for these people because I
understand the pain they have gone through. Our job is to not be
clouded by personal anguish and tragic circumstances. Ours is to look
at the underlying facts of what happened and what can happen in the
future.
Again, we have over 600 obstetricians and gynecologists, specialists
in perinatology, who say this is never medically necessary. The AMA
says it is never medically necessary and is bad medicine. It is not a
peer review procedure. It is not in the medical textbook. It is not
taught in medical schools. It is not performed in hospitals. It is only
performed at abortion clinics. Again, this is a rogue procedure.
They present case after case, as if this is some wonderful creation
of medical science by some genius in obstetrics. I remind Members the
person who created this procedure is not an obstetrician, much less a
specialist in perinatology or difficult pregnancies. It is a family
practitioner who only does abortions.
Again, I stress over and over again what seems to be the
compassionate argument is a smokescreen. It is a smokescreen. It is not
true. There is no compassion in allowing a procedure that is dangerous
to the health of the woman to be continued any more than it is
compassionate to prescribe any kind of medical treatment that is
inappropriate. We have an overwhelming body of evidence saying it is
bad medicine; it is inappropriate.
On the other side we have two things: One, stories, stories that
turned out OK. In other words, the procedure was used--not in all
cases; sometimes some of the people brought up in stories actually
didn't have the procedure, and even those who did may have resulted in
a good outcome--but it wasn't the proper course according to the
overwhelming body of evidence.
The only thing counter, as far as factual comments by physicians, is
the American College of Obstetricians and Gynecologists. The pillar
upon which they rest the health-of-the-mother exception, the select
panel they put together says they:
. . . could identify no circumstances under which this
procedure would be the only option to save the life or
preserve the health of the woman.
It is not the only option. It is not the only option.
From the Wisconsin case that upheld the Wisconsin statute, quoting
the judges:
Haskell, who invented the procedure, admitted that the D&X procedure
is never medically necessary to save the life or preserve the health of
the woman.
We have the person who invented it saying it is not medically
necessary.
ACOG goes further and talks about whether it is preferable in some
cases. Here is what they say:
An intact D&X [partial-birth abortion] however, may be the
best or most appropriate procedure in a particular
circumstance to save the life or preserve the health of a
woman, and only the doctor, in consultation with the patient,
based upon the woman's particular circumstances, can make
this decision.
We have asked them to identify one of these circumstances. Give an
example. They cannot say this may be the best thing for the health and
life of the mother, may be preferable, and yet give no situation which
can be reviewed by the medical community. That is what we have to base
the judgment on. The medical community is saying it is necessary to
protect the health of the mother. Yet they give no example, give no
example as to when this, in fact, would be preferable.
We have a thorough smokescreen, anecdotes with many of the cases
having nothing to do with partial-birth abortions; those that did,
argued by hundreds of physicians as being bad practice of medicine,
were an improper course of conduct. Then we have the only scientific
group that says it is never medically necessary, never the only option,
only that it ``may be'' the best thing. Yet they give no example and
after repeated inquiry are still giving no examples.
Again, we come back to the health question. There is a dearth of
evidence to support the position.
I am hopeful the Senator from Iowa can debate his amendment, saying
somehow this is important vis-a-vis Roe v. Wade. I argue the opposite.
This legislation has nothing to do with Roe v. Wade. I think when we
are looking at specific amendments to deal with that issue, the
constitutional issue of vagueness--again, that is not necessarily a Roe
v. Wade issue, although it gets into the issue of undue burden. From my
point of view, if we can tailor that definition narrowly to make sure
we are talking about partial-birth abortion, it leaves open other
methods of abortion to be used. It gets to the counterargument some
have suggested, that all we are doing is trying to outlaw abortion,
trying to restrict a woman's right.
No. All we are doing is, for gosh sakes, drawing a line about who is
protected. When a baby is 3 inches from being completely born, that is
too close. That is too close. We are going to get into a whole lot of
issues when we start drawing lines. In fact, we have gotten into a lot
of issues with respect to drawing the line. Now we are talking about
assisted suicide. We talk about quality of life instead of life itself.
As the Senator from California said, we want everyone to be wanted.
What if everyone isn't wanted? Is that license to get rid of them? It
certainly is if you are in the womb. Now we are suggesting it certainly
is if you are just outside the womb; it certainly is if you are within
3 inches of being born. If you are not wanted, too bad. If we draw the
line that close, it is not a very long way to go to get where our new
theologian at Princeton University, Dr. Singer, is coming from. He
suggested that it is, in fact, the moral thing to do; that once the
baby is born, if we don't like it, to kill it.
One might suggest this is outrageous; this could never happen in
America. This is a professor at Princeton, whose works, unfortunately,
have been published in the popular press and hundreds of thousands of
copies of this radical--I would consider it radical but on this floor
maybe it is not radical. Maybe killing a baby after it is born, if it
is not a healthy baby, is not a radical thing anymore. Certainly
killing a
[[Page S12893]]
baby who is 3 inches from being born is not a radical thing anymore, so
I don't know where 3 inches--maybe that does not make any difference.
If you do not like what you have, then you can sort of exchange it.
But that is where we are. Someone suggests: Senator, this is
outrageous. How can you make the comment that once a baby is born you
can kill it?
I am not making that argument. But Dr. Singer is, and there are those
who follow him. There will be judges who follow him. There will be
judges who say the mother was distraught and she killed her baby, but
it is sort of normal. If the baby was not perfect, it is probably
better--we are probably all better off.
But what is the rationale given for partial-birth abortion, as
extreme as that sounds, that Dr. Singer is proposing? What is the
rationale for partial-birth abortion? Why do we need to keep it legal?
Because we have pregnancies that have gone awry and these babies, they
are not perfect. They might not live long. They may have cleft palate--
in fact, yes, many partial-birth abortions were performed because the
babies had cleft palate and mom and dad just didn't want the baby
because it was not perfect.
So we have gotten to the point where the defenders of partial-birth
abortion are defending it on the basis that things go bad in pregnancy
and these children just do not deserve our protection because they are
not normal like you and me. They should be given less rights. Because
of their imperfections, they should be allowed--why would you bring a
baby into this world who is going to die? Kill it first before it has a
chance to die. That is the argument. It sounds rough. Let's cut to the
chase. That is exactly what they are saying.
All we are suggesting is, first off, we do not stop you from doing
that. This bill does not stop anyone who wants to have a late-term
abortion from having it. If you want to have a late-term abortion, you
can have a late-term abortion if this bill we propose passes. All we
say is, don't have the baby outside the mother, don't have the baby 3
inches away from the protection of the Constitution, and then brutally
execute the baby. That is just too close. That creates this nebulous
area that the Dr. Singers of this world will gladly fill in. Because if
we say 3 inches, then why not 3 inches later? What is the big deal? If
the baby is not wanted, the baby is not wanted.
Many listening to this will say that is a ridiculous argument. There
is no such slippery slope. Although, by the way, the people who oppose
these often themselves provide a slippery slope argument. Certainly
they do here. They say, if you restrict this right in abortion, it is a
slippery slope; we are going to get rid of Roe v. Wade completely. That
is why we have this amendment, to get at the Roe v. Wade amendment, to
make sure we are not providing the slippery slope. Fine. Let's have a
Roe v. Wade amendment to show we don't have a slippery slope. No
problem. Let's have a vote.
But allowing a baby who is almost born to be killed, that is not a
slippery slope? The Senator from California--we were talking about what
if the foot or the leg were the part not born, would it be OK to kill
the baby? I have the transcript, by the way. I asked that question. I
will read it:
What you are suggesting--
This is me talking.
What you are suggesting is if the baby's toe is inside the
mother you can, in fact, kill that baby.
Mrs. Boxer. Absolutely not.
So she said if the toe or foot is inside the baby, you can't kill the
baby. But if the head is, you can. No slippery slope there, is there?
No problems with a bright line there, is there?
We are headed down a very dangerous path if we start differentiating
between what body part is outside the mother and what is inside the
mother, as to whether an abortion is legal or not. The reason we have
trouble differentiating is because this is not about abortion. This is
about killing a baby. It is in the process of being born that under Roe
v. Wade was protected. The Texas law was not stricken under Roe v. Wade
that said you couldn't kill a baby in the process of being born.
Under Roe v. Wade, the seminal decision of the right of privacy, even
that Court understood that once the baby is in the process of being
born you should not be able to kill it. That is what we are saying. We
are not restricting the right of Roe v. Wade. Roe v. Wade ruled on this
by not striking that law down.
So fine, we are going to have a vote on Roe v. Wade. Fine, have a
vote on Roe v. Wade. But this is not about Roe v. Wade. This is about
infanticide. A lot of folks want to try to change the subject. They
want to talk about these difficult cases.
Again, there is no one in this Chamber who sympathizes as much with
these men and women, mothers and fathers, who dealt with a pregnancy
gone awry. It is incredibly painful to have that hit your family. I
hesitate to talk about it because I know how painful it is to revisit
them. But they have brought their situation into the public square to
prove a point. The problem is, it does not prove the point.
Again and again there is no medical reason. It is never medically
necessary to do this procedure. So I hope we can get to the facts, that
we can stay away from anecdotes that are inapplicable or not relevant;
and we can get to, hopefully, from the other side, a factual discussion
as to when this is medically necessary. Once I would like to see a
peer-reviewed document where everyone examined the case and someone
will say: You know what, there is a situation where this is medically
necessary, where no other option is as safe or safer.
To date, that has not occurred. Let me underline that. To date, no
such evidence has ever been put before the Senate.
Yet there are people who will stand here and say, ``We need it, we
need it to protect the health of the mother,'' when there is not a
shred of evidence, not a shred of evidence before the Senate, these
stories aside. There is not a shred of evidence that suggests these
stories, or all the other instances that have been brought up, were the
most safe or there were not things as safe that could be used in place
of a procedure that is infanticide. What we are hoping is we can get to
that discussion.
I understand the process now; we want to play some games on Roe v.
Wade. But that is not the issue before us. I cannot reiterate that
enough. The issue before us is should this procedure remain legal. And
it should be overturned. It should not remain legal.
It does not surprise me we are seeing smokescreens. This is the Roe
v. Wade smokescreen. We have the anecdote smokescreen. We can get the
charts up about the previous attempts by supporters of this procedure.
They have tried case after case to misinform the Senate. The advocates
of this legislation, the abortion rights groups, have deliberately--and
this is according to their own people now who have come clean--
deliberately misled the Congress, deliberately lied, as Ron
Fitzsimmons, who is a lobbyist for a great number, if not all, of the
abortion clinics in America, said that he lied through his teeth and
that the industry lied through their teeth.
Now after lie after lie--and I will go through all the lies--after
lie after lie, they now are going to come up with new stories and say:
Well, no, believe us now; OK, yes, we may have lied to you before, but
believe us, health is really an issue.
There is not one shred of substantive evidence to support that
claim--not one shred of substantive evidence. And yet, a group of
people that has come to the Congress in opposition to this bill, they
have lied in at least six cases, and, after those, we are now supposed
to believe them when they have no evidence to support what they are
asserting.
What are they? The National Abortion Federation called illustrations
of the partial-birth abortion procedure ``highly imaginative and
artistically designed, but with little relationship to the truth or to
medicine.''
You heard the Senator from California talk about the cartoons that
showed how a partial-birth abortion is done, and proponents of the
procedure argued early on: These are cartoons; they are not factual;
they have nothing to do with how the procedure actually works, until
Dr. Haskell publicly described this procedure at the National Abortion
Federation meeting on September 1992. Dr. Haskell told the AMA News the
drawings depicting partial-birth abortion were accurate ``from a
technical point of view.'' Strike 1.
Argument 1: This does not occur; this thing is not factually correct;
this is
[[Page S12894]]
not how partial-birth abortions are done; you are wrong. Strike 1.
By the way, they went even farther than that. Many of them argued
this did not exist. First they said this is just a cartoon, these
things do not happen at all, much less the drawings, but Dr. Haskell
straightened them out.
Believe it or not, people actually came to committee meetings in the
Capitol and suggested the anesthesia that is given to the woman during
this procedure ensures the fetus feels no pain; in other words, it
passes through and assures us the fetus does not feel any pain during
this procedure.
Again, this is Dr. James McMahon, who is one of the originators of
this procedure:
The fetus feels no pain through the entire series of the
procedures. This is because the mother is given narcotic
analgesia at a dose based upon her weight. The narcotic is
passed, via the placenta, directly into the fetal
bloodstream. Due to the enormous weight difference, a medical
coma is induced in the fetus. There is a neurological fetal
demise. There is never a live birth.
That was testimony before Congress under oath. When this happened,
the American Society of Anesthesiologists went bananas. Why? Again,
having gone through six births, one of the options available to women
during childbirth is to receive a narcotic to help with the pain. Women
were justifiably very nervous about receiving a narcotic for pain that
would kill their baby. One of the pain management procedures during
childbirth is, in fact, the giving of a pain killer, a narcotic.
Immediately we got response from them and this letter later on:
In my medical judgment, it would be necessary in order to
achieve neurological demise of the fetus in a partial-birth
abortion to anesthetize the mother to such a degree as to
place her own health in serious jeopardy.
The community of experts responded saying this is not true; you would
have to give so much in the way of narcotics, you could jeopardize the
life of the mother, which is certainly something I am sure no one on
either side would like to do.
Lie No. 2: The baby does not feel any pain. The fact is that after 20
weeks, babies have developed nervous systems; they feel pain. In fact,
some have suggested because their nervous system is, in fact, not in a
full developmental state, they feel increased pain as a result of this
procedure. As described by Nurse Brenda Shafer when she witnessed a
partial-birth abortion, when that scissor was plunged into the base of
the skull, when those scissors were rammed into the base of that skull,
the baby's arms and legs shot out, similar to if you held a little baby
and the baby thought it was going to fall; it would spasm out, and then
the baby's arms fell limp and legs fell limp.
Again, in October of 1995, during this period of time after McMahon's
testimony, ``the fetus dies of an overdose of anesthesia given to the
mother intravenously.''
Again we have Dr. Haskell, who is another one of these abortion
providers--Dr. McMahon is one and Dr. Haskell; they are the two who do
the most in the country--who says: Let's talk about whether or not the
fetus is dead beforehand.
Haskell says: No, it's not. No, it's really not.
That is pretty clear. Again, people fighting this bill are putting
information out that is not true. Why? To try to get support for this
position.
Fourth: Partial-birth abortion is a rare procedure.
We had this debate the first time. We are in a very difficult
situation because we have to rely upon the information of the abortion
industry. When Senator Smith, who is here, argued this debate 4 years
ago, he had to deal with a deck that was stacked against him. He did
not have the information we have today.
The organizations out there were saying--there were just a couple
hundred of these--it was very rare, only done on babies who were sick
and mothers whose health was in jeopardy or life was in jeopardy, but
this was a very rare procedure.
This is the Alan Guttmacher Institute, Planned Parenthood, National
Organization of Women, Zero Population Growth, Population Action
International, National Abortion Federation, and a whole list of other
organizations that wrote to Congress saying:
This surgical procedure is used only in rare cases, fewer
than 500 per year. It is most often performed in the cases of
wanted pregnancies gone tragically wrong, when a family
learns late in the pregnancy of severe fetal anomalies or a
medical condition that threatens the pregnant woman's life or
health.
Lie. What is the truth? We have two sources outside of the industry.
By the way, we still do not know the truth. We do not know the truth
because the folks who provide us with the statistics on partial-birth
abortions are the very organizations that oppose the bill. How would
you like to go into a courtroom and argue with a set of facts that is
given to you by your opponents? That is what we have to do here right
now.
Most of what we have to deal with certainly on this issue--the
numbers--we have to take from people who vehemently oppose this bill.
We have one source of independent judgment. Our crack news staff on
the Hill of which--let me look up in the news gallery: Gee, nobody is
up there. Our crack news staff on the Hill, whom we have challenged
time and time again to get the facts, why don't you ask a few abortion
clinics how many of these they do. A couple of people have. I know a
reporter for the Baltimore Sun did. Do you know what the abortion
clinics said in Baltimore? ``None of your business; none of your
business. We don't have to tell you.''
Maybe some other crack staff, who really, I am sure, in their heart
of hearts, want to get down to the bottom of this because I know they
care deeply about this issue, will call around some of their
communities and find out what the Bergen County Record did in New
Jersey.
What did they find out? That at least 1,500 partial-birth abortions
are performed each year, three times the national rate at one clinic in
northern New Jersey.
Mr. SMITH of New Hampshire. Would the Senator yield for a question?
Mr. SANTORUM. I am happy to yield to the Senator from New Hampshire.
Mr. SMITH of New Hampshire. I ask the Senator if he is aware, during
the time a few years ago when I stood on the floor and debated this
issue, as well, that there were a number of people who said this was
only happening a few times a year; some said as few as 15 or 20 times a
year; some said, well, maybe it happened a couple hundred times a year,
that it was the exception rather than the rule; it was usually when
there was an anomaly?
Is the Senator also aware, we began to receive testimony from inside
the abortion industry itself, which indicated--from those who had
performed them--that this, indeed, was not the case, that we found that
in about 80 percent of the cases, if not more, the child was perfectly
healthy? So the idea that these were performed in only a few cases,
when the child was in a so-called anomaly, if you will, is clearly
untrue.
I would also ask the Senator from Pennsylvania, is he aware that
there is numerous medical testimony, much medical testimony to the
effect of how one partially delivers a child, and then restrains the
child from exiting the birth canal? And how does that, in fact, help
the safety, the health, or even to promote the life of the mother? Is
the Senator also aware that on numerous occasions doctors have said, it
doesn't?
As a matter of fact, I wondered if the Senator was aware that when
President Clinton had several women down at the White House a short
time ago after one of these override votes that he is so good at, he
also indicated that these were people who had ``needed'' these for
their own health. Then we found one particular case of a woman by the
name of Claudia Ades, who appeared by telephone on a radio show in
which she said during the course of the show: ``This procedure was not
performed in order to save my life. This procedure was totally
elective. This is considered an elective procedure, as were the
procedures of all the other women who were at the White House veto
ceremony.''
So I think the Senator would probably agree with me that this was
orchestrated and used to promote this terrible procedure which, as the
Senator has so eloquently described, is infanticide, is the killing of
children.
And to think that somehow you are basically coming to the conclusion
that this is OK, based on the part of the child that is outside of the
birth
[[Page S12895]]
canal. I did not hear whether the Senator pointed this out, but is the
Senator aware that if you were to turn the child around, and the head
would exit first, that would be illegal under the law? That child could
not be killed in this way. Yet 90 percent of the child is still inside
the mother's body.
So it is an outrageous procedure. I want to compliment him for his
leadership and look forward to joining him a little later on in the
debate.
Mr. SANTORUM. I thank the Senator from New Hampshire. The Senator
from New Hampshire is someone who deserves a tremendous amount of
credit for his courage in coming to the floor 4 years ago, offering
this bill, fighting for this, and beginning the battle in the Senate.
And he continues to be a stalwart supporter and someone who deserves a
lot of credit for the movement that has occurred already.
I will finish my charts, and that is, again, getting back to where
this abortion procedure is ``rare.'' Ron Fitzsimmons on ``Nightline,''
in 1997, said that between 3,000 and 5,000 partial-birth abortions
could be performed annually. They say they didn't even know because,
again, they do not get reports--at least we are told they do not get
reports as to how many of these late-term abortions are done in this
manner.
The Centers for Disease Control does not track the method of
abortion. So we know 1,500 are done in one clinic. And the people at
that clinic said they have trained others to do it in New York City. So
I hesitate to guess of the thousands upon thousands of living human
beings--living human beings--who are brutalized in this fashion, 3
inches away.
As the Senator from New Hampshire just said, if that baby was born
head first, even though a smaller portion of the baby's body is out, I
think most people in this body would say: Well, you couldn't kill the
baby then.
Isn't that funny? Isn't that funny in the sense that we draw these
artificial lines that don't exist? We would say, it depends on which
way the baby exited the mother as to whether you could kill the baby or
not. Think about that. This is the bright line. This is the bright line
that we will never cross in our society as to who deserves the
protection of our Constitution or not. That is the issue, folks. That
is the issue.
Who in this Senate Chamber, who within the sound of my voice is safe
if that is the bright line? Who is safe from a group of Senators who
think they are being compassionate, who decide that maybe we are better
off drawing the line somewhere else, maybe drawing the line that after
the baby is born, if the baby isn't what we want. As, again, Dr.
Singer, a noted professor at Princeton University, now suggests, why
don't we draw the line afterwards?
There is not much difference, folks, is there? There really isn't.
Let's get honest about this. What is the difference? It is just a
couple of inches. We will be back someday. If we keep this procedure
legal, we will be back someday. We will be back someday arguing whether
that 3 inches really means anything. It is an artificial line. That
will be the argument. Come on. ``What is the difference because it is 3
inches if the baby is really deformed? Let it die. Kill it. Put it out
of its misery. This baby is going to die anyway.''
The arguments you are hearing this very day about children who are
not wanted because they are not perfect, in our eyes--I know whose eyes
they are very perfect in. In the eyes that matter most in this; they
are perfect little children. But to those on the Senate floor who argue
that because of their imperfection we have to keep this legal, so we
can dispose of unwanted, imperfect children--3 inches from legal
protection--folks, when the issue is 3 inches, it might as well be 1
inch or half an inch and eventually it is no inches because the 3-inch
line is the Maginot Line. It will be blown through at some point when
it suits the majority of Americans that they do not want to be bothered
with this burden--with this burden. ``It would be better off for this
child,'' I am sure the argument will be, ``that we let this baby die or
we kill this baby. Why let it suffer?'' That is the argument now--3
inches from protection.
Oh, how those 3 inches will shrink; mark my word. This is not a far-
out debate. It is the mainstream of political debate right now that we
can kill children 3 inches from birth because they are not perfect.
That is the argument. That is the mainstream of thought in America
right now.
On the horizon, the Dr. Singers of this world will say: Why quibble
over 3 inches? I remind you, step back in your mind, those of you who
were here on this Earth 40 years ago, and imagine--close your eyes and
imagine--the Senate Chamber without television cameras, without the
bright lights, without the microphones, and people on the Senate floor
debating whether it is OK to kill a child who is almost born. It would
be beyond anyone's possible comprehension that that could have occurred
in Manhattan, much less Washington, DC, here in the Senate Chamber. But
here we are. Where will we go from here? The Senate can take a stand on
that. So far it hasn't in the numbers necessary, but we are working on
it.
Lie No. 5: Partial birth abortion is used only to save the woman's
life and health and when the fetus is deformed.
Again, Ron Fitzsimmons said:
The procedure was used rarely and only on women whose lives
were in danger or whose fetuses were damaged.
That was 1995. Fast forward to 2 years later. Ron Fitzsimmons
admitted he lied through his teeth when he said the procedure was used
rarely and only on women whose lives were in danger or whose fetuses
were damaged. Yet that is the debate you continue to hear on the floor
of the Senate, case after case after case after case of this.
But what did Ron Fitzsimmons say:
What the abortion rights supporters failed to acknowledge
[the people on this floor] is that the vast majority of these
abortions are performed in the 20-plus week range on healthy
fetuses and healthy mothers. The abortion rights folks know
it, the anti-abortion folks know it, and so, probably does
everyone else.
Would you please inform the rest of the Senate, Mr. Fitzsimmons, so
they can begin to discuss the facts of this case, not the smoke and the
mirrors of this legislation. I guarantee my colleagues, we will have
clouds and clouds of smoke hovering over this Chamber over the next 2
days in an attempt to obfuscate what really is going on.
Lie No. 6: Partial-birth abortion protects a woman's health.
I understand the desire to eliminate the use of a procedure
that appears inhumane but to eliminate it without taking into
consideration the rare and tragic circumstances in which its
use may be necessary would be even more inhumane.
The argument that this protects a woman's health.
President Clinton, again, veto message of 1997:
H.R. 1122 does not contain an exception to the measure's
ban that will adequately protect the lives and health of a
small group of women in tragic circumstances who need an
abortion performed at a late stage of pregnancy to avert
death or serious injury.
A, there is a provision in the bill that says life of the mother is
an exception to the ban. Factually incorrect. There is a life of the
mother exception. I think it is agreed on all sides that that is not
necessary because it would never be used, but we have a prohibition
there anyway.
Going to the truth:
The American Medical Association endorsed the Partial-Birth
Abortion Ban Act. The AMA stated that partial-birth abortion
is not medically indicated.
I have talked about hundreds of physicians, over 600 obstetricians,
not medically necessary.
The partial-birth abortion procedure, as described by
Martin Haskell [the nation's leading practitioner of the
procedure] and defined in the Partial-Birth Abortion Ban Act,
is never medically indicated and can itself pose serious
risks to the health and future fertility of women.
Over 600 obstetricians signed this, over 600, pro-life, pro-choice,
signed this.
Those are the facts. This attempt by those who oppose this bill to
change the subject to get to Roe v. Wade doesn't obscure those facts.
I will get back to that.
Motion To Commit
Mr. SANTORUM. Mr. President, I move to commit the bill, and I send a
motion to the desk.
The PRESIDING OFFICER (Mr. Sessions). The clerk will report.
The legislative clerk read as follows:
The Senator from Pennsylvania [Mr. Santorum] moves to
commit the bill to the HELP Committee with instructions to
report back forthwith.
[[Page S12896]]
Mr. SANTORUM. I ask for the yeas and nays on the motion.
The PRESIDING OFFICER. Is there a sufficient second?
There is not.
Mr. SANTORUM. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative assistant proceeded to call the roll.
Mr. SANTORUM. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 2322 To The Instructions Of The Motion To Commit
Mr. SANTORUM. Mr. President, I send an amendment to the desk to the
motion to commit with instructions.
The PRESIDING OFFICER. Until the Senator has the yeas and nays on the
motion, the amendment is not in order.
Mr. SANTORUM. I ask for the yeas and nays on the motion.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Pennsylvania [Mr. Santorum] proposes an
amendment numbered 2322.
Mr. SANTORUM. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of the instructions, insert the following:
SEC. . SENSE OF CONGRESS CONCERNING ROE V. WADE AND
PARTIAL-BIRTH ABORTION BANS.
Findings.--Congress finds that--
(1) abortion has been a legal and constitutionally
protected medical procedure throughout the United States
since the Supreme Court decision in Roe v. Wae (410 U.S. 113
(1973));
(2) no partial birth abortion ban shall apply to a partial-
birth abortion that is necessary to save the life of a mother
whose life is endangered by a physical disorder, illness, or
injury.
Sense of Congress.--It is the sense of the Congress that--
Partial birth abortions are horrific and gruesome
procedures that should be banned.
Mr. SANTORUM. I ask for the yeas and nays on the amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. SANTORUM. Mr. President, I ask unanimous consent that a vote
occur on or in relation to the Santorum amendment No. 2322 and the
Durbin amendment No. 2319 in 10 minutes, with the time between now and
then to be equally divided, and if the amendment is agreed to, it be
considered as an amendment to the bill and the motion to commit be
immediately withdrawn.
I further ask consent that there be 2 hours total for debate equally
divided prior to a motion to table amendment No. 2321, with the
minority time under the control of Senator Boxer, and the vote to occur
on or in relation to the amendment no later than 11 a.m. on Thursday,
and the Boxer amendment, as amended, if amended, be agreed to without
any intervening action.
Mr. DURBIN. Reserving the right to object, may I inquire of the
Senator from Pennsylvania on my amendment whether or not it is a
straight up-or-down vote on the amendment or a motion to table.
Mr. SANTORUM. I will move to table the amendment.
Mr. DURBIN. Is that the same situation in terms of the amendment
offered by the Senator from Pennsylvania and the Senator from Iowa?
Mr. SANTORUM. They could be tabled under this unanimous consent
agreement.
Mrs. BOXER. If I may ask my friend to yield for a question, it
appears to me that everyone is going to wind up tabling someone else's
amendment. So if he can make that clear, it would be helpful.
Mr. SANTORUM. It does say ``on or in relation to'' the amendment, so
that means on the amendment or in relation, which is a tabling motion.
It is clear under the UC.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. DURBIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Illinois.
Amendment No. 2319
Mr. DURBIN. Mr. President, I ask unanimous consent to add two
additional cosponsors to my amendment No. 2319: Senator Blanche Lambert
Lincoln and Senator Chris Dodd.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS addressed the Chair.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I rise in support of the amendment
offered by my friend and colleague from Illinois, Senator Durbin, and
the senior Senator from Maine to ban all late-term abortions, including
partial-birth abortions that are not necessary to save the mother's
life or to protect her health from grievous physical harm.
Let me be clear from the outset. I am strongly opposed to all late-
term abortions, including partial-birth abortions. I agree they should
be banned. However, I also believe that an exception must be made for
those rare cases when it is necessary to save the life of the mother or
to protect her physical health from grievous harm. Fortunately, late-
term abortions are extremely rare in my State where, according to the
Maine Department of Human Services, just two late-term abortions have
been performed in the last 16 years.
This debate should not be about one particular method of abortion
but, rather, about the larger question of under what circumstances
should late-term or postviability abortions be legally available. The
sponsors of this amendment--and I am pleased to be a cosponsor--believe
that all late-term abortions, regardless of the procedure used, should
be banned except in those rare cases where the life or the physical
health of the mother is at serious risk.
In my view, Congress is ill equipped to make judgments on specific
medical procedures. As the American College of Obstetricians and
Gynecologists, which represents over 90 percent of OB/GYNs and which
opposes the legislation introduced by the Senator from Pennsylvania,
has said:
The intervention of legislative bodies into medical
decisionmaking is inappropriate, ill advised, and dangerous.
Most of us have neither the training nor the experience to decide
which procedure is most appropriate in a given case. These medically
difficult and highly personal decisions should be left for families to
make in consultation with their physicians and their clergy. The Maine
Medical Association agrees with this assessment. I ask unanimous
consent that an April 1999 statement from the Maine Medical Association
be printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER (Mr. Roberts). Without objection, it is so
ordered.
(See Exhibit 1.)
Ms. COLLINS. Mr. President, in its statement, the Maine Medical
Association states that ``such a ban would deny a patient and her
physician the right to make medically appropriate decisions about the
best course for that patient's care. . . . The intervention of
legislative bodies into medical decisionmaking is inappropriate, ill
advised and dangerous.''
The MMA statement goes on to say:
. . . when serious fetal anomalies are discovered or a
pregnant woman develops a life or health-threatening medical
condition that makes continuation of the pregnancy dangerous,
abortion--
Unfortunately, I add--
may be medically necessary. In these cases, intact dilation
and evacuation procedures may provide substantial medical
benefits or, in fact, may be the only option. This procedure
may be safer than the alternatives . . . [may] reduce blood
loss, and reduce the potential for other complications.
That is what the experts are telling us. That is what the doctors are
telling us.
Our amendment goes far beyond, in many ways, what the Senator from
Pennsylvania is attempting to accomplish. His legislation would only
prohibit one specific medical procedure. It will not prevent a single
late-term abortion. Let me emphasize that point. The partial-birth
legislation before us would not prevent a single late-term abortion. A
physician could simply use
[[Page S12897]]
another, perhaps more dangerous, method to end the pregnancy.
By contrast, the Durbin-Snowe proposal would prohibit the abortion of
any viable fetus by any method unless the abortion is necessary to
preserve the life of the mother or to prevent grievous injury to her
physical health.
We have taken great care to tightly limit the health exception in our
bill to grievous injury to the mother's physical health. It would not
allow late-term abortions to be performed simply because a woman is
depressed or feeling stressed or has some minor physical health problem
because of pregnancy.
Moreover, we have included a very important second safeguard. The
initial opinion of the treating physician that the continuation of
pregnancy would threaten the mother's life or risk grievous injury to
her physical health must be confirmed by a second opinion from an
independent physician.
This second opinion must come from an independent physician who will
not be involved in the abortion procedure and who has not been involved
in the treatment of the mother. This second physician must also
certify--in writing--that, in his or her medical judgment, the
continuation of the pregnancy would threaten the mother's life or risk
grievous injury to her physical health.
What we are talking about are the severe, medically diagnosable
threats to a woman's physical health that are sometimes brought on or
aggravated by pregnancy.
Let me give you a few examples: Primary pulmonary hypertension, which
can cause sudden death or intractable congestive heart failure; severe
pregnancy-aggravated hypertension with accompanying kidney or liver
failure; complications from aggravated diabetes such as amputation or
blindness; or an inability to treat aggressive cancers such as
leukemia, breast cancer, or non-Hodgkins lymphoma.
These are all obstetric conditions that are cited in the medical
literature as possible indications for pregnancy terminations. In these
extremely rare cases--where the mother has been certified by two
physicians to be at risk of losing her life or suffering grievous
physical harm--I believe that we should leave the very difficult
decisions about what should be done to the best judgment of the women,
families, and physicians involved.
The Durbin-Snowe-Collins amendment is a fair and compassionate
compromise on this extremely difficult issue. It would ensure that all
late-term abortions--including partial-birth abortions--are strictly
limited to those rare and tragic cases where the life or the physical
health of the mother is in serious jeopardy. This amendment presents an
unusual opportunity for both ``pro-choice'' and ``pro-life'' advocates
to work together on a reasonable approach, and I urge our colleagues to
join us in supporting it.
Exhibit 1
The Maine Medical Association takes no position on the
moral or ethical issue of abortion. Our membership includes
individuals who are ``pro-choice'' and ``pro-life.''
Still, abortion currently is a legal medical procedure in
the United States. Accordingly, the Maine Medical Association
opposes any legislation proposed to ban any legal medical
procedure whether that be abortion, ``intact dilation and
extraction'' (partial birth abortion), or another medical
procedure. Such a ban would deny a patient and her physician
the right to make medical-appropriate decisions about the
best course for that patient's care. The determination of the
medical need for and effectiveness of a particular medical
procedure must be left to the patient and her physician
acting in conformity with standards of good medical care.
In addition, imposing civil or criminal sanctions on
physicians who perform abortions would have a chilling effect
on physicians' willingness to perform legal abortions. Doing
so would limit patients' access to safe abortions. The Maine
Medical Association opposes such efforts to ``criminialize''
the practice of medicine.
An abortion performed in the second or third trimester or
after viability is extremely difficult for everyone involved.
The Maine Medical Association does not support elective
abortions in the last stage of pregnancy. However, when
serious fetal anomalies are discovered or the pregnant woman
develops a life or health-threatening medical condition that
makes continuation of the pregnancy dangerous, abortion may
be medically necessary. In these cases, intact dilation and
evacuation procedures may provide substantial medical
benefits or, in fact, may be the only option. This procedure
may be safer than the alternatives, maintain uterine
integrity, reduce blood loss, and reduce the potential for
other complications. Also, this procedure permits the
performance of a careful autopsy and, therefore, a more
accurate diagnosis of a fetal anomaly. This would permit
women who wish to have additional children to receive
appropriate genetic counseling and better prenatal care and
testing in future pregnancies. The intact dilation and
extraction procedure may be the most medically appropriate
procedure for a woman in a particular case.
The intervention of legislative bodies into medical
decision-making is inappropriate, ill-advised, and dangerous.
The Maine Medical Association urges the Maine Legislature and
the People of Maine to allow the patient and her doctor to
determine the most appropriate method of care based upon
accepted standards of care in the medical profession and upon
the patient's individual circumstances.
The PRESIDING OFFICER. The 5 minutes on the majority side has
expired. The Senator from Illinois has 5 minutes.
Mr. DURBIN. May I inquire of the Chair, pursuant to the unanimous
consent request, I understood 10 minutes would be allotted for
discussion on my pending amendment, and if the Presiding Officer can
please clarify what is the current status of that time request.
The PRESIDING OFFICER. The 10 minutes allotted to Senators was for
two amendments.
Mr. SANTORUM. I ask unanimous consent that I be given 5 minutes
against the Durbin amendment and the Senator from Illinois be given 5
minutes for the Durbin amendment. It will be 5 minutes. I was not aware
the Senator was using our time.
The PRESIDING OFFICER. Is there objection?
Mrs. BOXER. Reserving the right to object, since we are adding some
time here--and I think we should--I want to have about 2 minutes to
speak before we vote on the Santorum amendment.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. DURBIN. Mr. President, one last inquiry, so I understand it. As
it presently stands, there will be 12 minutes of debate before two
votes: First on the Santorum amendment, then the Durbin amendment; then
in that 12-minute period, 5 minutes allotted to me, 5 minutes to the
Senator from Pennsylvania, and 2 minutes to the Senator from
California?
The PRESIDING OFFICER. The Senator is correct.
Mr. DURBIN. I thank the Chair.
I want to say something to my colleagues who are following this
debate in their offices. There are not that many on the floor, but many
do watch these debates in their offices.
We are coming perilously close to reaching a consensus opinion on one
of the most divisive topics that this Congress has ever faced. The
Senator from Maine, Ms. Collins, and my colleague, Senator Snowe, on
the Republican side of the aisle, and about 10 Members on the
Democratic side, finally have said: Let us try to get down to the
bottom line and see if we can come out with some commonsense answer to
such a divisive issue as late-term abortions.
I respect the Senator from Pennsylvania and his heartfelt views on
this. I have said it repeatedly on the floor. But I think if we are
going to finally be able to say to the American people, we have
followed what we think are your feelings; first, keep abortion safe and
legal for women across America; but second, restrict abortions so that
they are in situations which are necessary, postviability in
particular, that is what the Durbin amendment strives to do. And I
thank the Senator from Maine for her kind words.
Here is what it says, very basically: All late-term abortions,
regardless of the type of procedure, are prohibited after the fetus is
viable; that is, after the moment when it can survive outside the womb,
except for two specific exceptions: One, if continuing the pregnancy
threatens the life of the mother, or if continuing the pregnancy means
the mother runs the risk of grievous physical injury.
We then go on to say--we are serious about this--not only the
treating doctor but an independent physician has to certify, in
writing, that one of those two conditions are met for any late-term
abortion postviability. If the doctor misleads or states something that
is not truthful in that certification, he is subject to a civil fine,
and with repeated offenses the fine grows and his license to practice
medicine can be suspended.
The reason I think we should take care--and I hope my colleagues will
[[Page S12898]]
look carefully at this amendment--is that we would finally emerge from
this tangled debate with something that many of us can agree on.
I am characterized as a pro-choice Senator. I am offering an
amendment which some pro-choice groups do not support. I would hope
that some on the pro-life side would look at this as a reasonable way
to restrict late-term abortions.
If Senator Santorum's amendment passes, and restricts one rare
procedure, it will reduce the number of abortions that are involved in
that procedure, and they are very small relative to the total number.
In all honesty, if my amendment passes, the bipartisan amendment, even
more abortions will be restricted after viability. So for those on the
pro-life side, it is a situation they should accept, too.
I urge my colleagues to seize this opportunity. It has come along so
seldom in the time that I have been up here on this contentious issue.
I hope they will understand that ours is an attempt to strike a good-
faith compromise, consistent with Roe v. Wade, consistent with the
Constitution, that protects a woman's health, as well as her life, in
medical emergency circumstances.
I think if we pass this amendment that I have offered, with the help
of so many of my colleagues on both sides of the aisle, we will finally
say to the American people: Yes, we did come together on the issue of
late-term abortion, and we think this is a reasonable way to deal with
it.
I will readily concede there are differences of opinion and those on
both sides of the aisle who see it differently. But I think I can go
before my voters in Illinois, and my family because we talk about this,
and explain to them the case histories that I presented on the Senate
floor--where mothers, anxious for the birth of their babies, having
painted the nursery and named the baby, found, at the last minute in
the pregnancy that some terrible complication had occurred, and the
doctor said: If you continue the pregnancy, you could die. And if you
don't die, you might lose your chance to ever have another baby. Think
about that, what the families face; and the doctors said, in that
circumstance: We have to go forward with an abortion procedure.
Some of the women involved said: I've been conservative, antiabortion
my whole life, and it struck me that it was going to hit me right in
the face. I had to deal with it. And they did.
Frankly, any of our families faced with that would want to have every
available medical option to save the life of the mother or to protect
her from grievous physical injury.
I urge my colleagues to please look carefully at this amendment. We
are perilously close to doing something by way of consensus that is a
commonsense answer to a very contentious issue.
The PRESIDING OFFICER. The time of the distinguished Senator has
expired.
Mr. DURBIN. I yield back my time.
Mr. SANTORUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Privilege Of The Floor
Mr. SANTORUM. Mr. President, first, I ask unanimous consent that
Heather MacLean and Adam Pallotto from my staff have access to the
floor during the consideration of this bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SANTORUM. I thank the Chair.
Mr. President, the Durbin amendment purports to ban certain kinds of
abortion, and I wish that were true because I think that would be
constructive. But it does not.
I do not question the motives of Senator Durbin, Senator Collins, and
many others, who, I think, are trying to find some ground where we
might be able to meet. But the problem with this amendment is the
problem with all these amendments that deal with the issue of health of
the mother.
The courts have defined ``health'' so broadly that it includes
everything. This definition in the amendment talks about serious,
grievous physical injury, and it requires a second opinion.
Here is the second opinion. If I put the phone number on here, and if
this bill were to become law, you could call Dr. Warren Hern, who
performs many second- and third-trimester abortions, and he will say
this: ``I will certify that any pregnancy is a threat to a woman's life
and could cause grievous injury to her physical health.''
See, the problem is there are lots of people in this country who
would argue that pregnancy itself, following through with a pregnancy,
can cause grievous physical injury. And in fact, it could.
So signing a document that says if we did not do this abortion,
grievous physical injury would occur, is, by definition, something any
doctor--or at least any doctor, Dr. Hern would say--could sign in good
faith.
So what you have is a loophole, a loophole that would make this
prohibition void. So as good as it sounds--and I do not question the
intentions. Senator Daschle had offered this amendment in the past, and
I certainly did not question his intention. I think there is an honest
attempt to say, and I take the speakers at their word, that they do not
want to see these kinds of abortions performed. However, when you
provide a health exception, in reality the health exception becomes the
operation of the bill, which is: There is no limitation.
So as much as I would like to see what the Senator from Illinois
purports to have happen with his amendment, his language does not
accomplish what he purports to accomplish. So voting for something
that, frankly, is hollow, is not effective.
Our bill would, in fact, ban a particular procedure, period, and that
is with the life of the mother exception.
If the Durbin amendment was amended to just provide for the life-of-
the-mother exception, it would be a different story. But it does not do
that.
So as much as I, again, commend those who have signed on to this as
an attempt on their part to try to search for some sort of middle
ground, I do not think they have found it yet. I am hopeful that good
faith and openmindedness will continue and that they will understand
where I am coming from.
This is not a limitation at all, and to put forward such as a
limitation would be misleading and I think not particularly
constructive to getting at the real problem.
Again, I say--and my amendment that we will be voting on, which is a
sense of the Senate, alludes to this--this is a debate about a
procedure. And the reason we are debating this procedure is because it
is the line in our society that we have drawn about who is covered by
our Constitution and who isn't.
I think everyone will agree, once the baby is born, you have
constitutional protections. When the baby is inside the womb, the Court
has been very clear: you don't. The point is, when the baby is in the
process of being born, it is almost completely outside of the mother.
How can one suggest that that baby does not have some additional
protection or full protection?
We heard the Senator from California say, if the foot was in the
mother, they wouldn't be entitled to protection. What is the difference
between the foot being inside the mother and the head being inside the
mother? Why does one give protection and the other one doesn't? We are
going to get into that very kind of fuzzy line. I am not too sure that
is a line we want to say is our line of demarcation as to when rights
begin or not.
I think we want to be very clear: Once the baby is in the process of
being born, that is where the right to abortion ends and that is where
infanticide begins. I am hopeful the Senate will make that choice
today.
The PRESIDING OFFICER. The time requested by the distinguished
Senator has expired.
The Senator from California is recognized for 2 minutes.
Mrs. BOXER. Mr. President, I urge Senators to read the text. It was
the Senator from Pennsylvania who talked about the feet. I talked about
a baby and when a baby is born.
The Santorum amendment, just as his bill, is a direct overturning of
Roe v. Wade, which gave women the right to choose in 1973. Before Roe,
5,000 women a year died because of illegal abortion. Now abortion is
safe, and it is legal. Why don't we keep it that way? It is working. It
is working for women and their families. It balances the rights of the
woman with the rights of the fetus. That is why it says in Roe, in the
beginning of a pregnancy, a woman has an unfettered right to choose,
and later there can be restrictions. But this is where the Santorum
bill steps over
[[Page S12899]]
the line. It makes no exception for the health of the woman. Senator
Durbin reaches to that issue. I commend him for his effort.
The fact is, if you make no exception for the health of the woman,
you are overturning Roe; there is no question about it. And by using
the term ``partial-birth abortion,'' which has never been in any
medical directory in the history of medicine--it is a political term--
it is so ill-defined that the courts have ruled it would in fact make
most abortion illegal.
Listen to what some of the judges have said. In the State of Alaska:
It would restrict abortion in general; in the State of Florida: This
statute may endanger the health of women who might seek abortion; in
Idaho: The act bans the safest and most common method of abortion used
in Idaho and, therefore, imposes an undue burden on a woman. It goes on
and on.
Nineteen States have said this Santorum language goes against Roe,
endangers the life, the health--in particular, the health--of a woman.
I hope we will table the Santorum amendment.
The PRESIDING OFFICER. All time has expired.
Mrs. LINCOLN. Mr. President, I ask unanimous consent to speak for 2
minutes on the Durbin amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Arkansas is recognized.
Mrs. LINCOLN. Mr. President, I rise today to support the Late Term
Abortion Limitation Act of 1999.
I would like to thank Senator Durbin for working with me and others
who oppose later term abortions like the procedure being discussed
today, which some have called partial-birth abortion.
Let me start by saying that this is a difficult issue for anyone to
discuss. And it is an emotional issue. It is not easy for any of us in
this Chamber to discuss terminating a pregnancy.
As a mother who has gotten infinite joy from twin 3-year-old boys and
was blessed with a safe and healthy natural delivery, it is an
especially sensitive topic for me.
Like many of the people that I represent in Arkansas, I do not
believe the so-called partial-birth abortion should be an elective
procedure.
We should put an end to all forms of abortion after viability except
in cases where a late term abortion is medically necessary to save the
life of the mother or when ``grievous injury'' could harm the mother.
Congress has attempted to eliminate what some people call partial-
birth abortions in the past. And 30 states have enacted similar
legislation. But most efforts to end this horrific procedure have been
unsuccessful thus far because the courts have overturned them.
As I have shown during debate on HMO reform and tax reform, I am
result-oriented. I believe we're here to get things done, to effect
change, instead of scoring political points.
For that reason, I have chosen to support Senator Durbin's approach
to eliminating late term abortions because Senator Durbin has taken
care of the concerns raised by courts and because this legislation will
actually reduce the number of late term abortions.
I should point out that, while serving in the House of
Representatives, I twice voted in favor of a ban on partial-birth
abortions, expressing my concern that the life and serious health of
the mother be considered.
Much has happened since then. Nineteen courts have overturned laws
very similar to the one I supported. Some rule that the term ``partial-
birth abortion'' is too vague.
While I am not a lawyer, I understand the courts' point because all
of the doctors I have discussed this issue with tell me that there is
no such procedure as partial birth abortion.
In addition, the courts have noted that states cannot regulate or
prohibit abortion prior to viability. So it is very important, if we
want results from this debate, to specify that we are talking about
post-viability.
Senator Durbin has corrected these prior legislative flaws by
referring to abortions after viability rather than partial-birth
abortions.
In addition, the Durbin late term abortion ban would eliminate
elective late term abortions by requiring not one but two doctors to
certify the need for a late term abortion to save the life or serious
health of the mother.
I support the Durbin amendment because if Senators really want to
ensure that we stop late term abortions, then we should pass
legislation that can stand the test of the courts.
The Durbin amendment could stand the test and become law. It has the
best chance of producing results.
So if results are what we're looking, if stopping late term
abortions--including the so-called partial-birth abortions--is our
goal, then this is the right option.
If we vote for other vague measures, we will be right back here next
year, and the next year, still debating this issue--without results.
Let's do the right thing and ban unnecessary late term abortions by
voting for the Durbin amendment which can stand up to federal court
tests.
Mrs. BOXER. Mr. President, I move to table the Santorum amendment and
ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to
table amendment No. 2322. The yeas and nays have been ordered. The
clerk will call the roll.
The legislative assistant called the roll.
Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain) is
necessarily absent.
The result was announced--yeas 36, nays 63, as follows:
[Rollcall Vote No. 334 Leg.]
YEAS--36
Akaka
Baucus
Bingaman
Boxer
Bryan
Chafee
Cleland
Collins
Dodd
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Inouye
Jeffords
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Levin
Lieberman
Lincoln
Mikulski
Murray
Reed
Robb
Rockefeller
Sarbanes
Schumer
Snowe
Torricelli
Wellstone
Wyden
NAYS--63
Abraham
Allard
Ashcroft
Bayh
Bennett
Biden
Bond
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cochran
Conrad
Coverdell
Craig
Crapo
Daschle
DeWine
Domenici
Dorgan
Enzi
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Johnson
Kyl
Landrieu
Leahy
Lott
Lugar
Mack
McConnell
Moynihan
Murkowski
Nickles
Reid
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NOT VOTING--1
McCain
The motion was rejected.
The PRESIDING OFFICER. Without objection, the yeas and nays are
vitiated.
The question now is on agreeing to the Santorum amendment, as
modified.
The amendment (No. 2322) was agreed to, as follows:
At the appropriate place in the bill, insert the following:
SEC. . SENSE OF CONGRESS CONCERNING ROE V. WADE, AND
PARTIAL BIRTH ABORTION BANS.
Findings.--Congress finds that--
(1) abortion has been a legal and constitutionally
protected medical procedure throughout the United States
since the Supreme Court decision in Roe v. Wade (410 U.S. 113
(1973)):
(2) No partial birth abortion ban shall apply to a partial-
birth abortion that is necessary to save the life of a mother
whose life is endangered by a physical disorder, illness, or
injury.
Sense of Congress.--It is the sense of the Congress that--
partial birth abortions are horrific and gruesome procedures
that should be banned.
____________________