[Congressional Record Volume 149, Number 41 (Thursday, March 13, 2003)]
[Senate]
[Pages S3653-S3662]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PARTIAL-BIRTH ABORTION BAN ACT OF 2003
The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of S. 3, which the clerk will report.
The legislative clerk read as follows:
A bill (S. 3) to prohibit the procedure commonly known as
partial-birth abortion.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I ask unanimous consent to have printed
in the Record prior to the vote on S. 3, four letters from specialists
in maternal fetal medicine in response to the letter the Senator from
California had printed in the Record yesterday.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Rockford Health System, Division of Maternal-Fetal
Medicine,
Rockford, IL, March 12, 2003.
Hon. Rick Santorum,
U.S. Senate Office Building,
Washington, DC.
Dear Senator Santorum: I am writing to contest the letter
submitted to Senator Feinstein by Philip D. Darney, MD
supporting the ``medical exemption''; to the proposed
restriction of the partial birth abortion (or as abortionists
call it ``intact D&E'').
I am a diplomate board certified by the American Board of
Obstetrics and Gynecology in general Obstetrics and
Gynecology and in the sub-specialty of Maternal-Fetal
Medicine. I serve as a Visiting Clinical Professor in
Obstetrics and Gynecology, University of Illinois at Chicago,
Department of Obstetrics and Gynecology, College of Medicine
at Rockford, Rockford, Illinois; as an Adjunct Professor of
Obstetrics and Gynecology, at Midwestern University, Chicago
College of Osteopathic Medicine, Department of Obstetrics and
Gynecology; and as an Adjunct Associate Professor of
Obstetrics and Gynecology Uniformed Services University of
Health Sciences, F. Edward Herbert School of Medicine,
Washington, D.C. I have authored over 50 peer review articles
in the obstetrics and gynecologic literature, presented over
100 scientific papers, and have participated in over 40
research projects,
In my over 14 years as a Maternal-Fetal Medicine specialist
I have never used or needed the partial birth abortion
technique to care for my complicated or life threatening
conditions that require the termination of pregnancy. Babies
may need to be delivered early and die from prematurity, but
there is never a medical need to perform this heinous act.
I have reviewed both cases presented by Dr. Darney, and
quite frankly, do not understand why he was performing the
abortions he indicates, yet alone the procedure he is using.
If the young 25 year old woman has a placenta previa with a
clotting disorder, the safest thing to do would be to place
her in the hospital, transfuse her to a reasonable
hematocrit, adjust her clotting parameters, watch her closely
at bed rest, and deliver a live baby. If the patient had a
placenta previa, pushing laminaria (sterile sea weed) up into
her cervix, and potentially through the previa, is
contraindicated. It is no surprise to anyone that the patient
went, from stable without bleeding, to heavy bleeding as they
forcibly dilated her cervix to 3 centimeters with laminaria.
The use of the dangerous procedure of blinding pushing
scissors into the baby's skull (as part of the partial birth
abortion) with significant bleeding from a previa just
appears reckless and totally unnecessary.
Regarding the second case of the 38 year old woman with
three cesarean sections with a possible accreta and the risk
of massive hemorrhage and hysterectomy due to a placenta
previa, it seems puzzling why the physician would recommend
doing an abortion with a possible accreta as the indication.
Many times, a placenta previa at 22 weeks will move away from
the cervix so that there is no placenta previa present and no
risk for accreta as the placenta moves away from the old
cesarean scar. (virtually 99.5% of time this is the case with
early previas). Why the physicians did not simply take the
woman to term, do a repeat cesarean section with preparations
as noted for a possible hysterectomy, remains a conundrum.
Dr. Darney actually increased the woman's risk for bleeding,
with a horrible outcome, by tearing through a placenta
previa, pulling the baby down, blindly instrumenting the
baby's skull, placing the lower uterine segment at risk, and
then scraping a metal instrument over an area of placenta
accreta. No one I know would do such a foolish procedure in
the mistaken belief they would prevent an accreta with a D&E.
Therefore, neither of these cases presented convincing
arguments that the partial birth abortion procedure has any
legitimate role in the practice of maternal-fetal medicine or
obstetrics and gynecology. Rather, they demonstrate how
cavalierly abortion practices are used to treat women instead
of the second medical practices that result in a live baby
and an unharmed mother.
Sincerely,
Byron C. Calhoun, MD.
____
March 13, 2003.
Hon. Rick Santorum,
U.S. Senate Office Building,
Washington, DC.
Dear Senator Santorum: I have reviewed the letter from Dr.
Darney describing two examples of what he believes are high
risk pregnancy cases that show the need for an additional
``medical exemption'' for partial birth abortion (also
referred to as intact D&E). I am a specialist in maternal-
fetal medicine with 23 years of experience in obstetrics. I
teach and do research at the University of Minnesota. I am
also co-chair of the Program in Human Rights in Medicine at
the University. My opinion in this matter is my own.
In the rare circumstances when continuation of pregnancy is
life-threatening to a mother I will end the pregnancy. If the
fetus is viable (greater than 23 weeks) I will recommend a
delivery method that will maximize the chance for survival of
the infant, explaining all of the maternal implications of
such a course. If an emergent life-threatening situation
requires emptying the uterus before fetal viability then I
will utilize a medically appropriate method of delivery,
including intact D&E.
Though they are certainly complicated, the two cases
described by Dr. Darney describe situations that were not
initially emergent. This is demonstrated by the use of
measures such as dilation of the cervix that required a
significant period of time. In addition, the attempt to
dilate the cervix with placenta previa and placenta accreta
is itself risky and can lead to life-threatening hemorrhage.
There may be extenuating circumstances in Dr. Darney's
patients but most obstetrical physicians would not attempt
dilation of the cervix in the presence of these
complications. It is my understanding that the proposed
partial birth abortion ban already has an exemption for
situations that are a threat to the life of the mother. This
would certainly allow all measures to be taken if heavy
bleeding, infection, or severe preeclampsia required
evacuation of the uterus.
The argument for an additional medical exemption is
redundant; furthermore, its inclusion in the legislation
would make the ban virtually meaningless. Most physicians and
citizens recognize that in rare life-threatening situations
this gruesome procedure might be necessary. But it is
certainly not a procedure that should be used to accomplish
abortion in any other situation.
Passage of a ban on partial birth abortion with an
exemption only for life-threatening situations is reasonable
and just. It is in keeping with long-standing codes of
medical ethics and it is also in keeping with the provision
of excellent medical care to pregnant women and their unborn
children.
Sincerely,
Steve Calvin, MD.
____
Redmond, WA,
March 12, 2003.
Hon. Rick Santorum:
U.S. Senate Office Building,
Washington, DC.
Dear Senator Santorum: The purpose of this letter is to
counter the letter of Dr. Philip Darney, M.D. to Senator
Diane Feinstein and to refute claims of a need for an
exemption based on the health of the mother in the bill to
restrict ``partial birth abortion.''
I am board certified in Maternal-Fetal Medicine as well as
Obstetrics and Gynecology and have over 20 years of
experience, 17 of which have been in maternal-fetal medicine.
Those of us in maternal-fetal medicine are asked to provide
care for complicated, high-risk pregnancies and often take
care of women with medical complications and/or fetal
abnormalities.
The procedure under discussion (D&X, or intact dilation and
extraction) is similar to a destructive vaginal delivery.
Historically such were performed due to the risk of caesarean
delivery (also called hysterotomy) prior to the availability
of safe anesthetic, antiseptic and antibiotic measures and
frequently on a presumably dead baby. Modern medicine has
progressed and now provides better medical and surgical
options for the obstetrical patient.
The presence of placenta previa (placenta covering the
opening of the cervix) in the two cases cited by Dr. Darney
placed those mothers at extremely high risk for catastrophic
life-threatening hemorrhage with any attempt at vaginal
delivery. Bleeding from placenta previa is primarily
maternal, not fetal. The physicians are lucky that their
interventions in both these cases resulted in living healthy
women. I do not
[[Page S3654]]
agree that D&X was a necessary option. In fact, a bad outcome
would have been indefensible in court. A hysterotomy
(caesarean delivery) under controlled non-emergent
circumstances with modern anesthesia care would be more
certain to avoid disaster when placenta previa occurs in the
latter second trimester.
Lastly, but most importantly, there is no excuse for
performing the D&X procedure on living fetal patients. Given
the time that these physicians spent preparing for their
procedures, there is no reason not to have performed a lethal
fetal injection which is quickly and easily performed under
ultrasound guidance, similar to amniocentesis, and carries
minimal maternal risk.
I understand the desire of physicians to keep all
therapeutic surgical options open, particularly in life-
threatening emergencies. We prefer to discuss the
alternatives with our patients and jointly with them develop
a plan of care, individualizing techniques, and referring
them as necessary to those who will serve the patient with
the most skill. Nonetheless I know of no circumstance in my
experience and know of no colleague who will state that it is
necessary to perform a destructive procedure on a living
second trimester fetus when the alternative of intrauterine
feticide by injection is available.
Obviously none of this is pleasant. Senator Santorum, I
encourage you strongly to work for passage of the bill
limiting this barbaric medical procedure, performance of D&X
on living fetuses.
Sincerely,
Susan E. Rutherford, MD.
____
University of Southern California, Department of
Obstetrics and Gynecology,
Los Angeles, CA, March 12, 2003.
Hon. Rick Santorum,
U.S. Senate Office Building,
Washington, DC.
Dear Senator Santorum, I am writing in support of the
proposed restrictions on the procedure referred to as
``partial birth abortion,'' which the Senate is now
considering.
I am chief of the Division of Maternal-Fetal Medicine in
the Department of Obstetrics and Gynecology at the University
of Southern California in Los Angeles. I have published more
than 100 scientific papers and book chapters regarding
complications of pregnancy. I direct the obstetrics service
at Los Angeles County Women's and Children's Hospital, the
major referral center for complicated obstetric cases among
indigent and under-served women in Los Angeles.
I have had occasion to review the cases described by Dr.
Philip Darney, offered in support of the position that
partial birth abortion, or intact D&E, was the best care for
the patient in those situations. Mindful of Dr. Darney's
broad experience with surgical abortion, I nevertheless
disagree strongly that the approach he describes for these
two cases was best under the circumstances. Such cases are
infrequent, and there is no single standard for management.
However, it would certainly be considered atypical, in my
experience, to wait 12 hours to dilate the cervix with
laminaria while the patient was actively hemorrhaging, as was
described in his first case. Similarly, the approach to
presumed placenta acreta, described in the second case, is
highly unusual. Although the mother survived with significant
morbidity, it is not clear that the novel approach to
management of these difficult cases is the safest approach.
It is my opinion that the vast majority of physicians
confronting either of these cases would opt for careful
hysterotomy as the safest means to evacuate the uterus.
Although I do not perform abortions, I have been involved
in counseling many women who have considered abortion because
of a medical complication of pregnancy. I have not
encountered a case in which what has been described as
partial birth abortion is the only choice, or even the better
choice among alternatives, for managing a given complication
of pregnancy.
Thank you for your consideration of this opinion.
Sincerely,
T. Murphy Goodwin, M.D,
Chief, Division of Maternal-Fetal Medicine.
Mr. SANTORUM. Madam President, I ask unanimous consent that a letter
from Dr. Daniel J. Wechter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
SynergyMedical
Education Alliance,
Saginaw, MI, March 13, 2003.
Hon. Rick Santorum,
U.S. Senate Office Building,
Washington, DC.
Dear Senator Santorum, I am writing in response to the
letter from Dr. Phillip Darney which was introduced by
Senator Feinstein.
I have cared for pregnant patient patients for almost 29
years, and have worked exclusively in the field of Maternal-
Fetal Medicine (high risk pregnancy) for over 15 years. I am
board certified in Obstetrics & Gynecology, and also in the
subspecialty of Maternal-Fetal Medicine. I am an assistant
professor in Obstetrics & Gynecology for the Michigan State
College of Human Medicine, and co-director of Maternal-Fetal
Medicine in Saginaw Michigan.
I have never seen a situation in which a partial birth
abortion was needed to save a mother's life. I have never had
a maternal death, not ever.
I am familiar with Dr. Darney's letter describing two of
his cases. My comments are not meant as a criticism of Dr.
Darney as a person or as a physician. I have great respect
for anyone in our field of medicine, which is a very
rewarding specialty but which requires difficult decisions on
a daily basis. We are all working to help mothers and their
children make it through difficult pregnancies. Still, I do
disagree with his stand that the legal freedom to do partial
birth abortions is necessary for us to take good care of our
patients. For example, in the second case he describes, I
believe that patient could have carried the pregnancy much
further, and eventually delivered a healthy child by repeat
caesarean section followed by hysterectomy. Hemorrhage is
always a concern with such patients, but we have many
effective ways to handle this problem, which Dr. Darney knows
as well as I. Blood vessels can be tied off at surgery, blood
vessels can be occluded using small vascular catheters, cell-
savers can be used to return the patients own blood to them,
blood may be given from donors, pelvic pressure packs can be
used for bleeding following hysterectomy, and other blood
products (platelets, fresh frozen plasma, etc) can be given
to treat coagulation abnormalities (DIC). His approach of
placing laminaria to dilate the cervix in a patient with a
placenta praevia is not without it's own risk.
If Dr. Darney performed the partial birth abortion on this
patient to keep from doing another c-section, or even to
preserve her uterus, I'm hopeful he counseled the patient
that if she becomes pregnant again, she will once again have
a very high risk of having a placenta praevia and placenta
accreta.
Lastly, I believe that for some abortionists, the real
reason they wish to preserve their ``right'' to do partial
birth abortions is that at the end of the procedure they have
only a dead child to deal with. If they were to abort these
women by either inducing their labor (when there is no
placenta praevia present), or by doing a hysterotomy (c-
section), they then need to deal with a small, living,
struggling child--an uncomfortable situation for someone
who's intent was to end the child's life.
Sincerely,
Daniel J. Wechter, M.D.,
Co-Director of Maternal-Fetal Medicine,
Synergy Medical Education Alliance.
Mr. BURNS. Mr. President, the Partial-Birth Abortion Ban Act of 2003
is not about a woman's right to choose to have an abortion. Regardless
of one's views on abortion in general, the partial-birth abortion
procedure should have no place in a civilized society such as ours.
Partial-birth abortion is an undeniably abhorrent procedure, and most
physicians believe it is never medically necessary. The American
Medical Association, the largest association of doctors in the United
States, and the medical community at large, has endorsed banning this
late-term abortion procedure. It is time for the Congress to follow
suit.
Since 1995, at least 31 States have enacted laws banning partial-
birth abortion. On June 28, 2000, the U.S. Supreme Court invalidated a
Nebraska statute that prohibited the performance of partial-birth
abortions. The Supreme Court determined that the Nebraska statute was
unconstitutional because it failed to include an exception to protect
the health of the mother, and because the language defining the
prohibited procedure was too vague. We must not allow the Partial-Birth
Abortion Ban Act to be diluted by amendments that would limit the
application of this bill to a time after a child is determined to be
viable. Such language would allow this procedure to continue being
performed as late as the sixth month of pregnancy. Additionally, such
amendments would create loopholes allowing this cruel procedure to be
used even as late as the third trimester of pregnancy, a time at which
many babies can sustain life outside the womb.
Passing the Partial-Birth Abortion Ban Act would prohibit any
physician or other individual from knowingly performing a partial-birth
abortion, except when necessary to save the life of a mother who is
endangered by a physical disorder, illness, or injury. Experts have
estimated that the partial-birth abortion procedure is used 3,000-5,000
times annually, and that the vast majority of these procedures are
performed on a healthy mother and a healthy fetus. The Physicians' Ad
Hoc Coalition on Truth--PHACT--a group of over 600 physicians-
specialists--has spoken out to dispute the claims that some women need
partial-birth abortions to avoid serious physical injury. In September
1996, former Surgeon General C. Everett Koop and other PHACT members
said:
Partial-birth abortion is never medically necessary to
protect a mother's health or her
[[Page S3655]]
future fertility. On the contrary, this procedure can pose a
significant threat to both.
Banning partial-birth abortion has been addressed in every Congress
since the 104th session, and banned in both the 104th and 105th
sessions. We now have a President in office who has vowed to sign this
Partial-Birth Ban Act when it comes before him without hostile
amendments that would allow the continuance of this procedure. It is
our moral duty to ban this repulsive practice once and for all, and it
is my sincere hope that Congress will be able to finally pass the
Partial-Birth Abortion Ban Act of 2003.
Mr. GRASSLEY. Mr. President, I rise today in support for the Partial-
Birth Abortion Ban Act of 2003.
As a father of five, a grandfather of nine, and a proud great-
grandfather, I regard life as a precious gift. During my tenure in the
Congress--that is, since 1974--I have long supported policies that
stand up for life and protect the unborn.
We made great strides in the 104th, 105th, and 106th Congresses on
banning partial-birth abortions. It was unfortunate that President
Clinton vetoed the ban. Not once, but twice.
Then, in 2000, the Supreme Court considered and struck down as
unconstitutional the Nebraska State law making partial-birth abortion
illegal. In Stenberg v. Carhart, the Court believed that the Nebraska
law (1) did not contain an exception for the health of a mother, and
(2) was too broad and could be construed to cover other types of
procedures. The bill before us specifically addresses the Supreme
Court's concerns.
I am disappointed and sickened that these abortion procedures are
legal in the United States of America. I'm not alone. According to a
recent Gallup poll, 70 percent of Americans want a ban.
My constituents want a ban on partial-birth abortions:
A woman from Tabor, IA, wrote, ``I'm horrified that under current
law, thousands of partial-birth abortions are committed in America
every year.''
A man from Atlantic, IA wrote, ``I believe that when women would see
that they would be terminating a life then they would opt `no' to
abortion.''
A woman from Nora Springs wrote, ``Abortions are actually murder
because even though the child may not be out of the womb, it's still
developing into a person.''
A woman from Waverly, IA, wrote, ``Partial-birth abortions are never
medically necessary.''
A young man in the 6th grade from West Union, IA, wrote, ``A child
might die, and in the future that small child could grow up to create a
cure for a disease, or be a fireman and save many lives. Just think,
you could have been aborted.''
It's time for us to stand up against such an extreme medical practice
that stops the beating heart of an unborn child.
Most medical professionals would agree that this specific abortion
procedure is outrageous. In fact, the American Medical Association
supported a ban in 1999.
You will hear many on the other side argue about a woman's health and
reproductive rights. As the bill states, the physician credited with
developing the partial-birth abortion procedure has testified that he
has never encountered a situation where a partial-birth abortion was
medically necessary to achieve the desired outcome. His testimony
waters down their theory that this procedure is necessary in certain
situations to preserve the mother's health.
If we know that the procedure can pose a threat to both a woman's
immediate health and future reproductive capacity, why do you want to
expose women to the risks?
Condoning partial-birth abortion is bad medicine, and bad policy.
When abortion advocates say that abortion is a matter just between a
woman and her doctor, they are rejecting the rights of an innocent
human being.
The unborn baby is alive from the moment of fertilization, the unborn
baby has a heartbeat at 3 weeks and brain waves at 6 weeks, the unborn
baby has 46 chromosomes in the cells of his or her body, the unborn
baby is a living human being.
Dr. Seuss said it just right: A person is a person, no matter how
small.
Let's pass this bill to protect the innocent and unborn.
Mr. CORZINE. Mr. President, I rise in opposition to this legislation
because I believe it is unconstitutional, and because its language is
so broad that it effectively would ban standard and safe abortion
procedures. I am concerned that, if approved, this bill would not only
undermine a woman's right to choose, but it would endanger the lives of
thousands of women who no longer would have access to safe abortion
procedures when their health or their life is in jeopardy.
Before I go further, let me say that I fully understand the very real
and legitimate concerns of those who support this legislation. The
issue of abortion raises the most profound of moral and ethical
dilemmas. These are emotional issues. They raise many hard questions.
And the practical reality of abortion, all types of abortion, is hard
for all involved.
Speaking for myself, I support a woman's right to choose. And I
support it strongly. As I see it, a decision about abortion generally
should be made by a woman and her doctor, not by politicians.
Having said that, I recognize that men and women of good faith can
and will reach different conclusions about the difficult ethical
questions involved in the debate on this legislation. And, I share
concerns raised by many bill proponents about some of the most
disturbing examples of procedures conducted post-viability. That's why
I intend to support an amendment to restrict such procedures. The
legislation I am supporting, however, is much more carefully crafted
than the underlying bill, and it complies with the constitution by
providing an exception where the health of the woman is at stake.
While I understand the genuine concerns of many advocates for this
legislation, the language of the bill actually goes well beyond a ban
on late-term abortions. In fact, its real effect would be to deny
women's access to some of the safest abortion procedures at all stages
of pregnancy. Because the legislation omits any mention of fetal
viability, it bans abortions throughout all stages of pregnancy. And it
bans one of the safest abortion methods--the ``intact D&E''--that is
used when a woman's life and health are in danger and for severe fetal
anomalies.
I hope my colleagues will think long and hard about the implications
of the legislation before us. We need to be very careful to avoid
returning to a period in which abortion was illegal and the only choice
women had was to seek an illegal and unsafe abortion. In those days,
thousands of women died each year as a direct result of these legal
prohibitions. And it would be tragic if this Congress were to forget
the lessons of that history.
It also would be unconstitutional. In Roe v. Wade, the Supreme Court
held that a woman has the right to choose legal abortion until fetal
viability. States have the authority to ban abortion post-viability, so
long as exceptions are made to protect a woman's life and health. And,
indeed, 41 States have chosen to ban postviability abortions in
instances in which a woman's life and health are not at stake. But,
under no circumstances do the Congress or the States have the authority
to ban medical procedures that are essential to preserving a woman's
life or health, nor do they have the authority to completely ban access
to abortion previability. This is a constitutionally protected right.
Unfortunately, the majority leader has brought to the Senate floor an
abortion ban that has been struck down by courts in 21 States,
including my State of New Jersey, and the Supreme Court. Based on that
precedent, there is little doubt that, if this bill is enacted, it also
will be struck down, and therefore it won't reduce the number of
abortions at all. It makes you wonder: Why are we even spending our
time debating this legislation?
If we really are interested in reducing the number of abortions in
this country, we should ensure that all women have access to the full
array of family planning services, including prescription
contraception, emergency contraception, and prenatal care. We also
should support an expansion of comprehensive sex education. I fully
support the amendment offered by Senator Murray and Reid that would
have addressed these issues.
[[Page S3656]]
Every week, 8,500 children in our country are born to mothers who
lacked access to prenatal care. Too many of these children are born
with serious health problems because their mothers lacked adequate care
during their pregnancies. As a result, 28,000 infants die each year in
the United States. That, Mr. President, is the real tragedy. And we
ought to act immediately to address this issue by expanding access to
prenatal care, as several of my colleagues and I have proposed.
What we should not do, however, is pass legislation that we know is
unconstitutional, that would ban a common and safe form of abortion at
all stages of pregnancy, and that would increase maternal mortality--
all without improving the health of a single child.
For these reasons, I urge my colleagues to oppose this bill.
I ask unanimous consent to print in the Record two letters, one from
Physicians for Reproductive Choice and Health, and the other from Mr.
Felicia Stewart, Professor of Obstetrics and Gynecology at the
University of California. I believe these letters describe better than
I the important medical reasons for voting against this bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Physicians for Reproductive
Choice and Health,
New York, NY, March 12, 2003.
Hon. Jon S. Corzine,
U.S. Senate,
Washington, DC.
Dear Senator Corzine: We are writing to urge you to stand
in defense of women's reproductive health and vote against
S.3, legislation regarding so-called ``partial birth''
abortion.
We are practicing family physicians; obstetrician-
gynecologists; academics in obstetrics, gynecology and
women's health; and a variety of other specialties in
medicine. We believe it is imperative that those who perform
terminations and manage the pre- and post-operative care of
women receiving abortions are given a voice in a debate that
has largely ignored the two groups whose lives would be most
affected by this legislation: physicians and patients.
It is misguided and unprincipled for lawmakers to legislate
decision-making in medicine. We all want safe and effective
medical procedures for women; on that there is no dispute.
However, the business of medicine is not always palatable to
those who do not practice it on a regular basis. The
description of a number of procedures--from liposuction to
cardiac surgery--may seem distasteful to some, and even
repugnant to others. When physicians analyze and refine
surgical techniques, it is always for the best interest of
the patient. The risk of death associated with childbirth is
about 11 times as high as that associated with abortion.
Abortion is proven to be one of the safest procedures in
medicine, significantly safer than childbirth, and in fact
saves women's lives.
While we can argue as to why this legislation is dangerous,
deceptive and unconstitutional--and it is--the fact of the
matter is that the text of the bill is so vague and
misleading that there is a great need to correct the
misconceptions around abortion safety and technique. It is
wrong to assume that a specific procedure is never needed;
what is required is the safest option for the patient, and
that varies from case to case.
the facts
(1) So-called ``partial birth'' abortion does not exist.
There is no mention of term ``partial birth'' abortion in
any medical literature. Physicians are never taught a
technique called ``partial birth'' abortion and therefore are
unable to medically define the procedure.
What is described in the legislation, however, could ban
all abortions. ``What this bill describes, albeit in non-
medical terms, can be interpreted as any abortion,'' stated
one of our physician members. ``Medicine is an art as much as
it is a science; although there is a standard of care, each
procedure--and indeed each woman--is different. The wording
here could apply to any abortion patient.'' The bill's
language is too vague to be useful; in fact, it is so vague
as to be harmful. It is intentionally unclear and deceptive.
(2) Physicians need to have all medical options available
in order to provide the best medical care possible.
Tying the hands of physicians endangers the health of
patients. It is unethical and dangerous for legislators to
dictate the details of specific surgical procedures. Until a
surgeon examines the patient, she does not necessarily know
which technique or procedure would be in the patient's best
interest. Banning procedures puts women's health at risk.
(3) Politicians should not legislate medical decision-
making.
To do so would violate the sanctity and legality of the
physician-patient relationship. The right to have an abortion
is constitutionally-protected. To falsify scientific evidence
in an attempt to deny women that right is unconscionable and
dangerous.
The American College of Obstetricians and Gynecologists,
representing 45,000 ob-gyns, agrees: ``The intervention of
legislative bodies into medical decision making is
inappropriate, ill advised, and dangerous.''
The American Medical Women's Association, representing
10,000 female physicians, is opposed to an abortion ban
because it ``represents a serious impingement on the rights
of physicians to determine appropriate medical management for
individual patients.''
the science
We know that there is no such technique as ``partial
birth'' abortion, and we believe this legislation is a
thinly-veiled attempt to outlaw all abortions. Those
supporting this legislation seem to want to confuse both
legislators and the public about which abortion procedures
are actually used. Since the greatest confusion seems to
center around techniques that are used after the first
trimester, we will address those: dilation and evacuation
(D&E), dilation and extraction (D&X), instillation,
hysterectomy and hysterotomy (commonly known as a c-section).
Dilation and evacuation (D&E) is the standard approach for
second-trimester abortions. The D&E is similar to first-
trimester vacuum aspiration except that the cervix must be
further dilated because surgical instruments are used.
Morbidity and mortality studies indicate D&E is preferable to
labor induction methods (instillation), hysterotomy and
hysterectomy because of issues regarding complications and
safety.
From the years 1972-76, labor induction procedures carried
a maternal mortality rate of 16.5 (note: all numbers listed
are out of 100,000); the corresponding rate for D&E was 10.4.
From 1977-82, labor induction fell to 6.8, but D&E dropped to
3.3 From 1983-87, induction methods had a 3.5 mortality rate,
while D&E fell to 2.9. Although the difference between the
methods shrank by the mid-1980s, the use of D&E had already
quickly outpaced induction.
Morbidity trends indicate that dilation and evacuation is
much safer than labor induction procedures and for women with
certain medical conditions, labor induction can pose serious
risks. Rates of major complications from labor induction,
including bleeding, infections, and unnecessary surgery, were
at least twice as high as those from D&E. There are instances
of women who, after having failed inductions, acquired
infections necessitating emergency D&Es as a last resort.
Hysterotomy and hysterectomy, moreover, carry a mortality
rate seven times that of induction techniques and ten times
that of D&E.
There is a psychological component which makes D&E
preferable to labor induction; undergoing difficult,
expensive and painful labor for up to two days can be
extremely emotionally and psychologically difficult, much
more so than a surgical procedure that can be done in less
than an hour under general or local anesthesia. Furthermore,
labor induction does not always work: Between 15 and 30
percent or more of cases require surgery to complete the
procedure. There is no question that D&E is the safest method
of second-trimester abortion.
There is also a technique known as dilation and extraction
(D&X). There is a limited medical literature on D&X because
it is an uncommonly used variant of D&X. However, it is
sometimes a physician's preferred method of termination for a
number of reasons: It offers a woman the chance to see the
intact outcome of a desired pregnancy, to speed up the
grieving process; it provides a greater chance of acquiring
valuable information regarding hereditary illness or fetal
anomaly; and D&E provides a decreased risk of injury to the
woman, as the procedure is quicker than induction and
involves less use of sharp instruments in the uterus,
providing a decreased chance of uterine perforations or tears
and cervical lacerations. The American College of
Obstetricians and Gynecologists addressed this in their
statement in opposition to so-called ``partial birth''
abortion when they said that D&X ``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 on the
woman's particular circumstances, can make this decision.
It is important to note that these procedures are used at
varying gestational ages. both D&E and D&X are options for
surgical abortion prior to viability. D&E and D&X are used
solely based on the size of the fetus, the health of the
woman, and the physician's judgment, and the decision
regarding which procedure to use is done on a case-by-case
basis.
the legislation
Because this legislation is so vague, it would outlaw D&E
and D&X (and arguably techniques used in the first
trimester). Indeed, the Congressional findings--which go into
detail, albeit in non-medical terms--do not remotely
correlate with the language of the bill. This legislation is
reckless. The outcome of its passage would undoubtedly be
countless deaths and irreversible damage to thousands of
women and families. We can safely assert that without D&E and
D&X, that is, an enactment of S. 3, we will be returning to
the days when an unwanted pregnancy led women to death
through illegal and unsafe procedures, self-inflected
abortions, uncontrollable infections and suicide.
The cadre of physicians who provide abortions should be
honored, not vilified. They are heroes to millions of women,
offering the opportunity of choice and freedom. We urge you
to consider scientific data rather than partisan rhetoric
when voting on such far-
[[Page S3657]]
reaching public health legislation. We strongly oppose
legislation intended to ban so-called ``partial birth''
abortion.
Sincerely,
Nassim Assefi, MD, Attending, Women's Clinic and Adult
Medicine, Harborview Medical Center, Seattle, WA.
Jonathan D. Berman, MD, Columbia River Mental Health
Services, Vancouver, WA.
Elizabeth Bianchi, MD, Spokane, WA.
Paul D. Blumenthal, MD, MPH, Associate Professor,
Department of Gynecology and Obstetrics, Johns Hopkins
University, Director, Contraceptive Research and Programs,
Johns Hopkins Bayview Medical Center, Baltimore, MD.
Fredrik F. Broekhuizen, MD, Professor Obstetrics and
Gynecology, Medical College of Wisconsin, Madison, WI.
Herbert Brown, MD, Clinical Associate Professor, Obstetrics
and Gynecology, University of Texas Health Science Center at
San Antonio, San Antonio, TX.
Wendy Chavkin, MD, MPH, Professor of Clinical Public Health
and Ob-Gyn, Columbia University, School of Public Health.
Philip A. Corfman, MD, Consultant in Reproductive Health,
Bethesda, MD.
Anne R. Davis, MD, MPH, Assistant Clinical Professor of
Obstetrics and Gynecology, Columbia College of Physicians and
Surgeons, Columbia University, New York, NY.
Quentin B. Deming, MD, Jacob A. and Jeanne E. Barkey,
Professor of Medince, Emeritus, Albert Einstein College of
Medicine, New York, NY.
Paul M. Fine, MD, Medical Director, Planned Parenthood of
Houston and Southeast Texas, Houston, TX.
Marilynn C. Frederiksen, MD, Associate Professor of
Obstetrics and Gynecology, Northwestern University Medical
School, Chicago, IL.
Susan George, MD, Family Physician, Portland, ME.
Richard W. Grady, MD, Assistant Professor, Children's
Hospital and Regional Medical Center, Seattle, WA.
Laura J. Hart, MD, Alaska Urological Associates, Seattle,
WA
Paula J. Adams Hillard, MD, Professor, OB-Gyn and
Pediatrics, University of Cincinnati College of Medicine,
Cincinnati, OH.
Sarah Hufbauer, MD, Country Doctor Community Clinic,
Seattle, WA.
Robert L. Johnson, MD, FAAP, Pediatrician and Adolescent
Medicine Specialist, Orange, NJ.
Harry S. Jonas, MD, Past President, The American College of
Obstetricians and Gynecologist, Lee's Summit, MO.
Deborah E. Klein, MD, Swedish Physician Division, Seattle,
WA.
Julie Komarow, MD, Covington Primary Care, Covington, WA.
Kim Leatham, MD, Clinical Instructor, University of
Washington, Dept. of Family Medicine, Medical Director,
Virginia Mason Winslow, Bainbridge Island, WA.
David A. Levine, MD, Associate Professor of Clinical
Pediatrics, Morehouse School of Medicine, Atlanta, GA.
Sara Buchdahl Levine, MD, MPH, Resident, Social Pediatrics,
Children's Hospital at Montefiore, Bronx, NY.
Scott T. McIntyre, MD, Seattle Family Medicine, Aurora
Medical Services, Planned Parenthood of Western Washington
Medical Advisory Committee, Seattle, WA.
Catherine P. McKegney, MD, MS, Hennepin Count Medical
Director, Department of Family Practice, Minneapolis, MN.
Deborah Oyer, MD, Medical Director, Aurora Medical
Services, Clinical Assistant Professor in Family Medicine,
University of Washington, Seattle, WA.
Warren H. Pearse, MD, Ob/Gyn, Mitchellville, MD.
Natalie E. Roche, MD, Assistant Professor of Obstetrics and
Gynecology, New Jersey Medical College, Newark, NJ.
Roger A. Rosenblatt, MD, MPH, Professor and Vice Chair,
Department of Family Medicine, Rural Underserved Opportunity
Program Director--School of Medicine University of Washington
School of Medicine Seattle, WA.
Courtney Schreiber, MD, Chief Resident, Obstetrics and
Gynecology, University of Pennsylvania Health System,
Philadelphia, PA.
Jody Steinauer, MD, Clinical Fellow, Dept. of Obstetrics,
Gynecology and Reproductive Sciences, University of
California, San Francisco, CA.
Steven B. Tamarin, MD, St. Luke's/Roosevelt Medical Center,
Attending Assistant, Department of Pediatrics, New York, NY.
Katherine Van Kessel, MD, Attending Physician, Harborview
Medical Center, Department of OB/Gyn, University of
Washington Medical Center, Seattle, WA.
Gerson Weiss, MD, Professor and Chair, Department of
Obstetrics, Gynecology and Women's Health, New Jersey Medical
College, Newark, NJ.
Beverly Winikoff, MD, MPH, President, Gynuity Health
Projects, New York, NY.
And the board of Physicians for Reproductive Choice and
Health.
____
March 5, 2003.
Hon. Barbara Boxer,
U.S. Senate,
Washington, DC.
Dear Senator Boxer: I understand that you will be
considering Senate S. 3, the ban on abortion procedures, soon
and would like to offer some medical information that may
assist you in your efforts. Important stakes for women's
health are involved: if Congress enacts such a sweeping ban,
the result could effectively ban safe and common, pre-
viability abortion procedures.
By way of background, I am an adjunct professor in the
Department of Obstetrics, Gynecology and Reproductive
Sciences at the University of California, San Francisco,
where I co-direct the Center for Reproductive Health Research
and Policy. Formerly, I directed the Reproductive Health
program for the Henry J. Kaiser Family Foundation and served
as Deputy Assistant Secretary for Population Affairs for the
United States Department of Health and Human Services. I
represented the United States at the International Conference
on Population and Development (ICPD) in Cairo, Egypt, and
currently serve on a number of Boards for organizations that
promote emergency contraception and new contraceptive
technologies, and support reducing teen pregnancy. My medical
and policy areas of expertise are in the family planning and
reproductive health, prevention of sexually transmitted
infections including HIV/AIDS, and enhancing international
and family planning.
The proposed ban on abortion procedures criminalizes
abortions in which the provider ``deliberately and
intentionally vaginally delivers a living fetus . . . for the
purpose of performing an overt act that the person knows will
kill the partially delivered living fetus . . .'' The
criminal ban being considered is flawed in a number of
respects:
It fails to protect women's health by omitting an exception
for women's health;
It menaces medical practice with the threat of criminal
prosecution;
It encompasses a range of abortion procedures; and
It leaves women in need of second trimester abortions with
far less safe medical options: hysterotomy (similar to a
caesarean section) and hysterectomy.
The proposed ban would potentially encompass several
abortion methods, including dilation and extraction (d&x,
sometimes referred to as ``inact d&e), dilation and
evacuation (d&e), the most common second-trimester procedure.
In addition, such a ban could also apply to induction
methods. Even if a physician is using induction as the
primary method for abortion, he or she may not be able to
assure that the procedure could be effected without running
afoul of the proposed ban. A likely outcome if this
legislation is enacted and enforced is that physicians will
fear criminal prosecution for any second trimester abortion--
and women will have no choice but to carry pregnancies to
term despite the risks to their health. It would be a sad day
for medicine if Congress decides that hysterotomy,
hysterectomy, or unsafe continuation of pregnancy are women's
only available options. Williams Obstetrics, one of the
leading medical texts in Obstetrics and Gynecology, has this
to say about the hysterotomy ``option'' that the bill leaves
open: ``Nottage and Liston (1975), based on review of 700
hysterotomies, rightfully concluded that the operation is
outdated as a routine method for terminating pregnancy.''
(Cunningham and McDonald, et al, Williams Obstetrics, 19th
ed., (1993), p. 663.)
Obviously, allowing women to have a hysterectomy means that
Congress is authorizing women to have an abortion at the
price of their future fertility, and with the added risks and
costs of major surgery. In sum, the options left are less
safe for women who need an abortion after the first trimester
of pregnancy.
I'd like to focus my attention on that subset of the women
affected by this bill who face grievous underlying medical
conditions. To be sure, these are not the majority of
women who will be affected by this legislation, but the
grave health conditions that could be worsened by this
bill illustrate how sweeping the legislation is.
Take for instance women who face hypertensive disorders
such as eclampsia--convulsions precipitated by pregnancy-
induced or aggravated hypertension (high blood pressure).
This, along with infection and hemorrhage, is one of the most
common causes of maternal death. With eclampsia, the kidneys
and liver may be affected, and in some cases, if the woman is
not provided an abortion, her liver could rupture, she could
suffer a stroke, brain damage, or coma. Hypertensive
disorders are conditions that can develop over time or spiral
out of control in short order, and doctors must be given the
latitude to terminate a pregnancy if necessary in the safest
possible manner.
If the safest medical procedures are not available to
terminate a pregnancy, severe adverse health consequences are
possible for some women who have underlying medical
conditions necessitating a termination of their pregnancies,
including: death (risk of death higher with less safe
abortion methods), infertility, paralysis, coma, stroke,
hemorrhage, brain damage, infection, liver damage, and kidney
damage.
Legislation forcing doctors to forego medically indicated
abortions or to use less safe but politically-palatable
procedures is simply unacceptable for women's health.
Thank you very much, Senator, for your efforts to educate
your colleagues about the implications of the proposed ban on
abortion procedures.
Sincerely,
Felicia H. Stewart, M.D.
Mr. SANTORUM. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
[[Page S3658]]
The bill having been read the third time, the question is, Shall the
bill pass? The clerk will call the roll.
The legislative clerk called the roll.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the
Senator from North Carolina (Mr. Edwards), and the Senator from
Massachusetts (Mr. Kerry) are necessarily absent.
I further announce that, if present and voting, the Senator from
North Carolina (Mr. Edwards) and the Senator from Massachusetts (Mr.
Kerry) would each vote ``no''.
The PRESIDING OFFICER (Ms. Murkowski). Are there any other Senators
in the Chamber desiring to vote?
The result was announced--yeas 64, nays 33, as follows:
[Rollcall Vote No. 51 Leg.]
YEAS--64
Alexander
Allard
Allen
Bayh
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Carper
Chambliss
Cochran
Coleman
Conrad
Cornyn
Craig
Crapo
Daschle
DeWine
Dole
Domenici
Dorgan
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hollings
Hutchison
Inhofe
Johnson
Kyl
Landrieu
Leahy
Lincoln
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (NE)
Nickles
Pryor
Reid
Roberts
Santorum
Sessions
Shelby
Smith
Specter
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
NAYS--33
Akaka
Baucus
Bingaman
Boxer
Cantwell
Chafee
Clinton
Collins
Corzine
Dayton
Dodd
Durbin
Feingold
Feinstein
Graham (FL)
Harkin
Inouye
Jeffords
Kennedy
Kohl
Lautenberg
Levin
Lieberman
Mikulski
Murray
Nelson (FL)
Reed
Rockefeller
Sarbanes
Schumer
Snowe
Stabenow
Wyden
NOT VOTING--3
Biden
Edwards
Kerry
Change of Vote
Mr. DURBIN. Madam President, on the previous rollcall vote on S. 3, I
inadvertently cast a vote I did not intend to cast. On rollcall vote
No. 51, I voted yea. It was my intention to vote nay. Therefore, I ask
unanimous consent that I be permitted to change my vote since it will
not affect the outcome.
The PRESIDING OFFICER. Without objection, it is ordered.
(The foregoing tally has been changed to reflect the above order.)
The bill (S. 3), as amended, was passed, as follows:
S. 3
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Partial-Birth Abortion Ban
Act of 2003''.
SEC. 2. FINDINGS.
The Congress finds and declares the following:
(1) A moral, medical, and ethical consensus exists that the
practice of performing a partial-birth abortion--an abortion
in which a physician delivers an unborn child's body until
only the head remains inside the womb, punctures the back of
the child's skull with a Sharp instrument, and sucks the
child's brains out before completing delivery of the dead
infant--is a gruesome and inhumane procedure that is never
medically necessary and should be prohibited.
(2) Rather than being an abortion procedure that is
embraced by the medical community, particularly among
physicians who routinely perform other abortion procedures,
partial-birth abortion remains a disfavored procedure that is
not only unnecessary to preserve the health of the mother,
but in fact poses serious risks to the long-term health of
women and in some circumstances, their lives. As a result, at
least 27 States banned the procedure as did the United States
Congress which voted to ban the procedure during the 104th,
105th, and 106th Congresses.
(3) In Stenberg v. Carhart (530 U.S. 914, 932 (2000)), the
United States Supreme Court opined ``that significant medical
authority supports the proposition that in some
circumstances, [partial birth abortion] would be the safest
procedure'' for pregnant women who wish to undergo an
abortion. Thus, the Court struck down the State of Nebraska's
ban on partial-birth abortion procedures, concluding that it
placed an ``undue burden'' on women seeking abortions because
it failed to include an exception for partial-birth abortions
deemed necessary to preserve the ``health'' of the mother.
(4) In reaching this conclusion, the Court deferred to the
Federal district court's factual findings that the partial-
birth abortion procedure was statistically and medically as
safe as, and in many circumstances safer than, alternative
abortion procedures.
(5) However, the great weight of evidence presented at the
Stenberg trial and other trials challenging partial-birth
abortion bans, as well as at extensive Congressional
hearings, demonstrates that a partial-birth abortion is never
necessary to preserve the health of a woman, poses
significant health risks to a woman upon whom the procedure
is performed, and is outside of the standard of medical care.
(6) Despite the dearth of evidence in the Stenberg trial
court record supporting the district court's findings, the
United States Court of Appeals for the Eighth Circuit and the
Supreme Court refused to set aside the district court's
factual findings because, under the applicable standard of
appellate review, they were not ``clearly erroneous''. A
finding of fact is clearly erroneous ``when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed''. Anderson v. City of Bessemer
City, North Carolina (470 U.S. 564, 573 (1985)). Under this
standard, ``if the district court's account of the evidence
is plausible in light of the record viewed in its entirety,
the court of appeals may not reverse it even though convinced
that had it been sitting as the trier of fact, it would have
weighed the evidence differently'' (Id. at 574).
(7) Thus, in Stenberg, the United States Supreme Court was
required to accept the very questionable findings issued by
the district court judge--the effect of which was to render
null and void the reasoned factual findings and policy
determinations of the United States Congress and at least 27
State legislatures.
(8) However, under well-settled Supreme Court
jurisprudence, the United States Congress is not bound to
accept the same factual findings that the Supreme Court was
bound to accept in Stenberg under the ``clearly erroneous''
standard. Rather, the United States Congress is entitled to
reach its own factual findings--findings that the Supreme
Court accords great deference--and to enact legislation based
upon these findings so long as it seeks to pursue a
legitimate interest that is within the scope of the
Constitution, and draws reasonable inferences based upon
substantial evidence.
(9) In Katzenbach v. Morgan (384 U.S. 641 (1966)), the
Supreme Court articulated its highly deferential review of
Congressional factual findings when it addressed the
constitutionality of section 4(e) of the Voting Rights Act of
1965. Regarding Congress' factual determination that section
4(e) would assist the Puerto Rican community in ``gaining
nondiscriminatory treatment in public services,'' the Court
stated that ``[i]t was for Congress, as the branch that made
this judgment, to assess and weigh the various conflicting
considerations. . . . It is not for us to review the
congressional resolution of these factors. It is enough that
we be able to perceive a basis upon which the Congress might
resolve the conflict as it did. There plainly was such a
basis to support section 4(e) in the application in question
in this case.'' (Id. at 653).
(10) Katzenbach's highly deferential review of Congress's
factual conclusions was relied upon by the United States
District Court for the District of Columbia when it upheld
the ``bail-out'' provisions of the Voting Rights Act of 1965,
(42 U.S.C. 1973c), stating that ``congressional fact finding,
to which we are inclined to pay great deference, strengthens
the inference that, in those jurisdictions covered by the
Act, state actions discriminatory in effect are
discriminatory in purpose''. City of Rome, Georgia v. U.S.
(472 F. Supp. 221 (D. D. Col. 1979)) aff'd City of Rome,
Georgia v. U.S. (46 U.S. 156 (1980)).
(11) The Court continued its practice of deferring to
congressional factual findings in reviewing the
constitutionality of the must-carry provisions of the Cable
Television Consumer Protection and Competition Act of 1992.
See Turner Broadcasting System, Inc. v. Federal
Communications Commission (512 U.S. 622 (1994) (Turner I))
and Turner Broadcasting System, Inc. v. Federal
Communications Commission (520 U.S. 180 (1997) (Turner II)).
At issue in the Turner cases was Congress' legislative
finding that, absent mandatory carriage rules, the continued
viability of local broadcast television would be ``seriously
jeopardized''. The Turner I Court recognized that as an
institution, ``Congress is far better equipped than the
judiciary to `amass and evaluate the vast amounts of data'
bearing upon an issue as complex and dynamic as that
presented here'' (512 U.S. at 665-66). Although the Court
recognized that ``the deference afforded to legislative
findings does `not foreclose our independent judgment of the
facts bearing on an issue of constitutional law,' '' its
``obligation to exercise independent judgment when First
Amendment rights are implicated is not a license to reweigh
the evidence de novo, or to replace Congress' factual
predictions with our own. Rather, it is to assure that, in
formulating its judgments, Congress has drawn reasonable
inferences based on substantial evidence.'' (Id. at 666).
(12) Three years later in Turner II, the Court upheld the
``must-carry'' provisions based upon Congress' findings,
stating the Court's ``sole obligation is `to assure that, in
formulating its judgments, Congress has drawn reasonable
inferences based on substantial evidence.' '' (520 U.S. at
195). Citing its ruling in Turner I, the Court reiterated
that ``[w]e owe Congress' findings deference in part because
the institution `is far better
[[Page S3659]]
equipped than the judiciary to ``amass and evaluate the vast
amounts of data'' bearing upon' legislative questions,'' (Id.
at 195), and added that it ``owe[d] Congress' findings an
additional measure of deference out of respect for its
authority to exercise the legislative power.'' (Id. at 196).
(13) There exists substantial record evidence upon which
Congress has reached its conclusion that a ban on partial-
birth abortion is not required to contain a ``health''
exception, because the facts indicate that a partial-birth
abortion is never necessary to preserve the health of a
woman, poses serious risks to a woman's health, and lies
outside the standard of medical care. Congress was informed
by extensive hearings held during the 104th, 105th, and 107th
Congresses and passed a ban on partial-birth abortion in the
104th, 105th, and 106th Congresses. These findings reflect
the very informed judgment of the Congress that a partial-
birth abortion is never necessary to preserve the health of a
woman, poses serious risks to a woman's health, and lies
outside the standard of medical care, and should, therefore,
be banned.
(14) Pursuant to the testimony received during extensive
legislative hearings during the 104th, 105th, and 107th
Congresses, Congress finds and declares that:
(A) Partial-birth abortion poses serious risks to the
health of a woman undergoing the procedure. Those risks
include, among other things: an increase in a woman's risk of
suffering from cervical incompetence, a result of cervical
dilation making it difficult or impossible for a woman to
successfully carry a subsequent pregnancy to term; an
increased risk of uterine rupture, abruption, amniotic fluid
embolus, and trauma to the uterus as a result of converting
the child to a footling breech position, a procedure which,
according to a leading obstetrics textbook, ``there are very
few, if any, indications for . . . other than for delivery of
a second twin''; and a risk of lacerations and secondary
hemorrhaging due to the doctor blindly forcing a sharp
instrument into the base of the unborn child's skull while he
or she is lodged in the birth canal, an act which could
result in severe bleeding, brings with it the threat of
shock, and could ultimately result in maternal death.
(B) There is no credible medical evidence that partial-
birth abortions are safe or are safer than other abortion
procedures. No controlled studies of partial-birth abortions
have been conducted nor have any comparative studies been
conducted to demonstrate its safety and efficacy compared to
other abortion methods. Furthermore, there have been no
articles published in peer-reviewed journals that establish
that partial-birth abortions are superior in any way to
established abortion procedures. Indeed, unlike other more
commonly used abortion procedures, there are currently no
medical schools that provide instruction on abortions that
include the instruction in partial-birth abortions in their
curriculum.
(C) A prominent medical association has concluded that
partial-birth abortion is ``not an accepted medical
practice,'' that it has ``never been subject to even a
minimal amount of the normal medical practice development,''
that ``the relative advantages and disadvantages of the
procedure in specific circumstances remain unknown,'' and
that ``there is no consensus among obstetricians about its
use''. The association has further noted that partial-birth
abortion is broadly disfavored by both medical experts and
the public, is ``ethically wrong,'' and ``is never the only
appropriate procedure''.
(D) Neither the plaintiff in Stenberg v. Carhart, nor the
experts who testified on his behalf, have identified a single
circumstance during which a partial-birth abortion was
necessary to preserve the health of a woman.
(E) The physician credited with developing the partial-
birth abortion procedure has testified that he has never
encountered a situation where a partial-birth abortion was
medically necessary to achieve the desired outcome and, thus,
is never medically necessary to preserve the health of a
woman.
(F) A ban on the partial-birth abortion procedure will
therefore advance the health interests of pregnant women
seeking to terminate a pregnancy.
(G) In light of this overwhelming evidence, Congress and
the States have a compelling interest in prohibiting partial-
birth abortions. In addition to promoting maternal health,
such a prohibition will draw a bright line that clearly
distinguishes abortion and infanticide, that preserves the
integrity of the medical profession, and promotes respect for
human life.
(H) Based upon Roe v. Wade (410 U.S. 113 (1973)) and
Planned Parenthood v. Casey (505 U.S. 833 (1992)), a
governmental interest in protecting the life of a child
during the delivery process arises by virtue of the fact that
during a partial-birth abortion, labor is induced and the
birth process has begun. This distinction was recognized in
Roe when the Court noted, without comment, that the Texas
parturition statute, which prohibited one from killing a
child ``in a state of being born and before actual birth,''
was not under attack. This interest becomes compelling as the
child emerges from the maternal body. A child that is
completely born is a full, legal person entitled to
constitutional protections afforded a ``person'' under the
United States Constitution. Partial-birth abortions involve
the killing of a child that is in the process, in fact mere
inches away from, becoming a ``person''. Thus, the government
has a heightened interest in protecting the life of the
partially-born child.
(I) This, too, has not gone unnoticed in the medical
community, where a prominent medical association has
recognized that partial-birth abortions are ``ethically
different from other destructive abortion techniques because
the fetus, normally twenty weeks or longer in gestation, is
killed outside of the womb''. According to this medical
association, the `` `partial birth' gives the fetus an
autonomy which separates it from the right of the woman to
choose treatments for her own body''.
(J) Partial-birth abortion also confuses the medical,
legal, and ethical duties of physicians to preserve and
promote life, as the physician acts directly against the
physical life of a child, whom he or she had just delivered,
all but the head, out of the womb, in order to end that life.
Partial-birth abortion thus appropriates the terminology and
techniques used by obstetricians in the delivery of living
children--obstetricians who preserve and protect the life of
the mother and the child--and instead uses those techniques
to end the life of the partially-born child.
(K) Thus, by aborting a child in the manner that
purposefully seeks to kill the child after he or she has
begun the process of birth, partial-birth abortion undermines
the public's perception of the appropriate role of a
physician during the delivery process, and perverts a process
during which life is brought into the world, in order to
destroy a partially-born child.
(L) The gruesome and inhumane nature of the partial-birth
abortion procedure and its disturbing similarity to the
killing of a newborn infant promotes a complete disregard for
infant human life that can only be countered by a prohibition
of the procedure.
(M) The vast majority of babies killed during partial-birth
abortions are alive until the end of the procedure. It is a
medical fact, however, that unborn infants at this stage can
feel pain when subjected to painful stimuli and that their
perception of this pain is even more intense than that of
newborn infants and older children when subjected to the same
stimuli. Thus, during a partial-birth abortion procedure, the
child will fully experience the pain associated with piercing
his or her skull and sucking out his or her brain.
(N) Implicitly approving such a brutal and inhumane
procedure by choosing not to prohibit it will further coarsen
society to the humanity of not only newborns, but all
vulnerable and innocent human life, making it increasingly
difficult to protect such life. Thus, Congress has a
compelling interest in acting--indeed it must act--to
prohibit this inhumane procedure.
(O) For these reasons, Congress finds that partial-birth
abortion is never medically indicated to preserve the health
of the mother; is in fact unrecognized as a valid abortion
procedure by the mainstream medical community; poses
additional health risks to the mother; blurs the line between
abortion and infanticide in the killing of a partially-born
child just inches from birth; and confuses the role of the
physician in childbirth and should, therefore, be banned.
SEC. 3. PROHIBITION ON PARTIAL-BIRTH ABORTIONS.
(a) In General.--Title 18, United States Code, is amended
by inserting after chapter 73 the following:
``CHAPTER 74--PARTIAL-BIRTH ABORTIONS
``Sec.
``1531. Partial-birth abortions prohibited.
``Sec. 1531. Partial-birth abortions prohibited
``(a) Any physician who, in or affecting interstate or
foreign commerce, knowingly performs a partial-birth abortion
and thereby kills a human fetus shall be fined under this
title or imprisoned not more than 2 years, or both. This
subsection does not apply to a partial-birth abortion that is
necessary to save the life of a mother whose life is
endangered by a physical disorder, physical illness, or
physical injury, including a life-endangering physical
condition caused by or arising from the pregnancy itself.
This subsection takes effect 1 day after the date of
enactment of this chapter.
``(b) As used in this section--
``(1) the term `partial-birth abortion' means an abortion
in which--
``(A) the person performing the abortion deliberately and
intentionally vaginally delivers a living fetus until, in the
case of a head-first presentation, the entire fetal head is
outside the body of the mother, or, in the case of breech
presentation, any part of the fetal trunk past the navel is
outside the body of the mother for the purpose of performing
an overt act that the person knows will kill the partially
delivered living fetus; and
``(B) performs the overt act, other than completion of
delivery, that kills the partially delivered living fetus;
and
``(2) the term `physician' means a doctor of medicine or
osteopathy legally authorized to practice medicine and
surgery by the State in which the doctor performs such
activity, or any other individual legally authorized by the
State to perform abortions: Provided, however, That any
individual who is not a physician or not otherwise legally
authorized by the State to perform abortions, but who
nevertheless directly performs a partial-birth abortion,
shall be subject to the provisions of this section.
``(c)(1) The father, if married to the mother at the time
she receives a partial-birth abortion procedure, and if the
mother has not attained the age of 18 years at the time of
the abortion, the maternal grandparents of the
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fetus, may in a civil action obtain appropriate relief,
unless the pregnancy resulted from the plaintiff's criminal
conduct or the plaintiff consented to the abortion.
``(2) Such relief shall include--
``(A) money damages for all injuries, psychological and
physical, occasioned by the violation of this section; and
``(B) statutory damages equal to three times the cost of
the partial-birth abortion.
``(d)(1) A defendant accused of an offense under this
section may seek a hearing before the State Medical Board on
whether the physician's conduct was necessary to save the
life of the mother whose life was endangered by a physical
disorder, physical illness, or physical injury, including a
life-endangering physical condition caused by or arising from
the pregnancy itself.
``(2) The findings on that issue are admissible on that
issue at the trial of the defendant. Upon a motion of the
defendant, the court shall delay the beginning of the trial
for not more than 30 days to permit such a hearing to take
place.
``(e) A woman upon whom a partial-birth abortion is
performed may not be prosecuted under this section, for a
conspiracy to violate this section, or for an offense under
section 2, 3, or 4 of this title based on a violation of this
section.''.
(b) Clerical Amendment.--The table of chapters for part I
of title 18, United States Code, is amended by inserting
after the item relating to chapter 73 the following new item:
``74. Partial-birth abortions...................................1531''.
SEC. 4. SENSE OF THE SENATE CONCERNING ROE V. WADE.
(a) Findings.--The Senate finds that--
(1) abortion has been a legal and constitutionally
protected medical procedure throughout the United States
since the Supreme Court decision in Roe v. Wade (410 U.S. 113
(1973)); and
(2) the 1973 Supreme Court decision in Roe v. Wade
established constitutionally based limits on the power of
States to restrict the right of a woman to choose to
terminate a pregnancy.
(b) Sense of the Senate.--It is the sense of the Senate
that--
(1) the decision of the Supreme Court in Roe v. Wade (410
U.S. 113 (1973)) was appropriate and secures an important
constitutional right; and
(2) such decision should not be overturned.
Mr. SANTORUM. I move to reconsider the vote.
Mr. ROBERTS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. HATCH. Madam President, I rise today to applaud this body for
passing S. 3, the Partial-Birth Abortion Ban Act of 2003. I know the
people of my home State of Utah share my sentiments because they
recognize, as I do, that the practice of partial-birth abortion is
immoral, offensive and impossible to justify. This procedure is so
heinous that even many that consider themselves pro-choice cannot
defend it.
While we have passed a similar measure before, it was never certain
to be signed into law. Today it is. It saddens me that this legislation
was even necessary, and even more that it took 7 years to achieve. I
thank the Senator from Pennsylvania for his outstanding leadership in
bringing this about. I hope he knows he has my admiration and respect.
Basic human decency has prevailed. I pray that never again will it be
legal in this country to perform this barbaric procedure.
Unfortunately, I am sure that opponents of this measure will seek to
challenge the law in court--where I hope good judgment will ultimately
prevail. Even in Stenberg v. Carhart the Supreme Court confirmed, and I
quote, ``By no means must physicians [be granted] `unfettered
discretion' in their selection of abortion methods.''
There are those who consider every type of abortion sacrosanct and
will oppose any effort to apply commonsense reasoning to the debate. I
don't know how to get through to these people, except by forcing them
to witness this barbaric procedure. A baby is almost fully delivered
with only her head remaining inside the birth canal when the doctor
stabs scissors into the base of her skull to open a hole through which
he then sucks out her brain and collapses her skull. I honestly don't
know how anyone can avoid being truly sickened when they see a baby
being killed in this gruesome manner. It is not done on a mass of
tissue but to a living baby capable of feeling pain and, at the time
this procedure is typically performed, capable of living outside of the
womb.
All this bill would do is ban this one procedure. We are not talking
about the entire framework of abortion rights here, but just one
procedure. The fact is that there is no medical need to allow this type
of procedure. It is never medically necessary, it is never the safest
procedure available, and it is morally reprehensible and
unconscionable.
In recent years, we have heard about teenaged girls giving birth and
then dumping their newborns into trash cans. One young woman was
criminally charged after giving birth to a child in a bathroom stall
during her prom, and then strangling and suffocating her child before
leaving the body in the trash. Tragically, there have been several
similar incidents around the country in the past few years.
This is what happens, when we continue to devalue human life.
William Raspberry argued in a column in the Washington Post several
years ago that ``only a short distance [exists] between what [these
teenagers] have been sentenced for doing and what doctors get paid to
do.'' How right he is.
When you think about it, it's incredible that there is a mere 3
inches separating a partial-birth abortion from murder.
Partial-birth abortion simply has no place in our society and rightly
should be banned. President Bush has described partial-birth abortion
as ``an abhorrent procedure that offends human dignity.'' I
wholeheartedly agree.
Mr. DASCHLE. Madam President, few issues divide our country more
markedly than the issue of abortion. This debate is a difficult one,
and I commend those on both sides of the issue who have given their
time on the floor to express their very deeply held views on this
matter. While the debate has had some unfortunate low points, it has
also had some very high ones.
In particular, I commend those on the Democratic side Senators Boxer,
Murray, Durbin, Harkin, and Feinstein--who have helped manage the floor
this week. Each of them has worked diligently to ensure these difficult
issues were given the honest, constructive attention they deserve. I
know very well how thankless that job can be, and I am grateful for
their efforts.
I am personally opposed to abortion, and I oppose Federal funding of
abortion except in cases of rape, incest, or medical necessity. Far too
many abortions are performed in this country, and I want to do
everything reasonable to discourage abortion.
That is why I support efforts to facilitate and promote adoption as
an alternative to abortion, and that is why I support voluntary family
planning, including improved access to contraception and research on
improved contraceptive options for both men and women. That is why I
supported Senator Murray's amendment.
Every abortion is a tragedy. But I recognize that there are
extraordinary medical circumstances that make abortion necessary to
save the mother's life or prevent grave harm to her health.
I also recognize and respect the Supreme Court's clear message on
abortion stated first in the landmark Roe v. Wade decision and later in
Planned Parenthood v. Casey.
The Court consistently upheld two basic tenets. First, before the
stage of fetal viability--when the fetus is capable of living outside
the womb with or without life support--a woman has a constitutional
right to choose whether or not to terminate her pregnancy. Second, a
woman's health must be protected throughout her pregnancy.
The Court has not, as the junior Senator from Pennsylvania has
wrongly suggested, endorsed ``abortion anywhere at any time.'' In
Casey, the Court clearly drew a distinction between abortions performed
before fetal viability and those performed after viability, clearly
allowing the Government to restrict abortion after fetal viability.
While I am deeply troubled by the procedure described in S. 3, and
voted again to ban it, I have real concerns that S. 3 is not the most
effective means of limiting the late-term abortions the bill's sponsors
claim to target.
Like many of my colleagues, I would prefer to ban all post-viability
abortions, regardless of the procedure used. In 1997, in an effort to
find a constitutional compromise that would actually stop far more
abortions than the bill we have been debating today, I offered
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a broader ban much like the one offered by the Senator from Illinois
yesterday.
The Durbin amendment, like the earlier Daschle amendment, banned all
post-viability abortions, allowing an exception only if an abortion is
absolutely necessary to protect the mother.
An ironic fact that the sponsors of S. 3 don't readily acknowledge is
that, if their statements are accurate, S. 3 will not stop a single
abortion. In contrast, the Durbin amendment would stop all post-
viability abortions except those that are absolutely medically
necessary. This may seem counterintuitive, so let me explain why this
is true.
The sponsors of S. 3 answer the Supreme Court's concern that their
legislation is too vague to meet constitutional muster by claiming that
their legislation bans only one procedure and that it is clearly
defined. They also claim that the ban does not restrict a woman's
Court-affirmed right to choose because all other abortion procedures
are allowed under S. 3. Finally, they claim their legislation avoids
the Court's concerns about protecting the life and health of the mother
because the procedure described in their legislation is never necessary
to protect the mother; thus, other available procedures could be
employed interchangeably.
If all those statements are true and I confess I am not confident
that they are--then S. 3 will not stop a single abortion; it will
merely cause women and doctors to choose a different abortion
procedure. While I am deeply disturbed by this procedure, I oppose any
unnecessary abortion once a fetus becomes viable.
If our true desire is to protect viable fetuses whenever possible, I
think we can do better than S. 3.
An across-the-board ban on all post-viability procedures with a
constitutional life and health exception is the only way to achieve
that broader goal, and I deeply regret that the Senate has yet again
failed to do so. It is a principle that would win the support of the
American people and the Supreme Court, and it would actually reduce the
number of abortions in this country. Yesterday's outcome is one I will
never understand.
There is yet another reason S. 3 may fail to meet its objective. The
Supreme Court has struck down what many experts claim is a ``legally
identical'' bill, the Nebraska law banning this procedure. In previous
Congresses, I have expressed my concern that this legislation may not
withstand an inevitable constitutional challenge.
Now that the Court has ruled in the Nebraska case, that concern is
even greater. But the sponsors of this bill have chosen to take that
gamble, claiming their ``20 word changes'' have resolved the
constitutional concerns. Those 20 words, by the way, are allegedly
powerful enough to change the outcome in the Supreme Court, but not
significant enough to merit a hearing in the Judiciary Committee.
If the sponsors of S. 3 are wrong, then this week's exercise will
serve only to delay meaningful progress toward restrictions on not only
this procedure, but all post-viability abortions. It will also fuel the
unnecessary bitterness surrounding this debate.
At this point, it is my hope that this Senate bill will go quickly to
the President so that the Supreme Court can rule on it. If the Court
strikes it down, then I hope people on both sides of this issue will be
willing to work together to stop all post-viability abortions except
those that are absolutely necessary to protect a woman's life and
health.
Finally, I want to say a few words about the women whose lives are
impacted by our actions this week. One of the saddest aspects of this
debate is the suggestion that countless women, for frivolous reasons,
are choosing unnecessary abortions in the last few weeks of their
pregnancies. That just isn't true.
Anyone willing to listen has heard the tragic stories of women and
families who have had to terminate their pregnancies either because
their own health was threatened, or their child was the victim of
severe fetal anomalies often inconsistent with life outside the womb.
These are not unwanted pregnancies, and these are not abortions of
convenience.
Regardless of one's ultimate decision on this legislation, I hope
that in the future the Senate will show greater respect for these women
and the tragic circumstances they have faced. As they have so
poignantly said, you or someone you love could face similar
circumstances, and you would deserve better than these women and their
families have gotten.
Mr. HARKIN. Madam President, I wanted to discuss my votes on S. 3 and
its amendments. I have long supported a ban on late term abortions.
However, S. 3 would not do that because it would be struck down by the
U.S. Supreme Court because it does not contain a health exception. Both
in 1973 and in 2001, the Supreme Court ruled that a government may
regulate late term abortions with an exception to both life and health
of the woman. The Court specifically ruled in the 2001 decision in
Carhart--that Nebraska's law was too vague and did not contain the
required health exception. Therefore, I supported the amendments
offered by Senator Feinstein and Senator Durbin to ban late term
abortions because they both contained the requisite health exceptions,
and which I believe the Supreme Court would uphold.
I am also pleased the Senate passed my amendment, 52 to 46, affirming
Roe v. Wade. A woman's constitutional right to make a private decision
in these matters is no more negotiable than the freedom to speak or the
freedom to worship. As a father, I have struggled with this issue.
However, I do not believe that it is appropriate to insist that my
personal views be the law of the land.
So what should Congress do? Pass a late term abortion ban that the
Supreme Court will uphold; increase funding for family planning and
abstinence-only education and mandate insurance coverage for
contraception. All of these fall within the rules under Roe v. Wade--
that established a woman's fundamental right to choose.
Mr. DODD. Mr. President, the Senate had an opportunity this week to
find common ground on an issue that has too often been an ideological
battleground: abortion.
As the Senate debated the partial Birth Abortion Ban Act of 2003, I
cosponsored a bipartisan amendment authored by Senator Durbin that
could have actually reduced the number of abortions in our country
while at the same time protecting a woman's life, health, and her
constitutional right to choose. While the amendment was defeated, I
remain hopeful that it will ultimately prevail someday as the most
sound and moderate approach to addressing the troubling issue of late-
term abortions.
The Durbin amendment struck a reasonable middle-ground approach on an
issue that has frequently been dominated by the extremes. There are
those who would universally ban all abortions. Others would universally
allow all abortions. I respect the views of the people in each camp,
but I disagree with them both.
Abortions ought to be legal, safe, and rare. That is my fundamental
view, and it's the view that the Supreme Court has affirmed and
reaffirmed for the past three decades since its decision in Roe vs.
Wade. Abortions have never been--and should not be-- available at any
time for any reason. As Roe held, once a fetus achieves the point of
viability, abortions may be regulated, but States must allow abortions
to preserve a woman's life or health.
Forty-one States have already enshrined this standard, or one like
it, into their State statutes. The Durbin amendment would have written
it into Federal law. It would have respected a woman's constitutional
right to choose while appropriately curbing choice after the point of
viability where abortions are only necessary to preserve a woman's life
or health.
This proposal was reasonable, it was constitutional and sensitive to
the wrenching circumstances that families typically face when they must
contemplate a late-term abortion. Unfortunately, it was adamantly
opposed by those seeking a ban on so-called partial-birth abortions.
Their proposal had two serious flaws that made it impossible for me to
support.
First, the ban on partial-birth abortions bans just one medical
procedure. It will not stop all late-term abortions from being
performed, because an alternative procedure might be found. The Durbin
amendment, on the other hand, would have limited all constitutionally-
unprotected abortions without regard to a specific procedure. Why?
[[Page S3662]]
Because the wisdom of using a given medical procedure is best left with
medical professionals. We are legislators, not doctors.
Second, the partial-birth ban contained in this legislation will not
protect a woman's health. The few women who might require this
procedure to protect their health from severe injury will be completely
barred from receiving it. A pregnancy gone awry is a tragedy. The
partial-birth abortion ban will only compound that tragedy by forcing a
woman to forego a safer procedure.
The partial-birth abortion ban, as its supporters readily admit, is
intended not to find common ground and reduce unnecessary abortions,
but to lead to a ban of any and all abortions in America--regardless of
whether they are needed to protect a woman's life and health. I find
this argument simply unacceptable and blatantly unconstitutional in
light of Roe vs. Wade. Therefore, it is for this reason and the reasons
stated above that I voted against final passage of the Partial Birth
Abortion Ban Act of 2003.
While the Durbin amendment would not have ended the national debate
over abortion, it respected the deeply held views of people on both
sides of this issue. It offered the Senate and our country an
opportunity--not to debate our differences, but to affirm our
similarities. It would have allowed us to come together in a bipartisan
fashion, pro-life and pro-choice--and offer something that would have
reduced the number of abortions while preserving a woman's life, health
and constitutional freedom.
Mr. ROCKEFELLER. Mr. President, I want to talk about the debate in
the Senate this week regarding late-term abortion. I am a strong
opponent of late-term abortions, and I know many Americans find them as
deeply troubling as I do.
As I have done in the past, I voted this week to support a
comprehensive ban on late-term abortions. The comprehensive ban I
supported--offered as an amendment by Senator Durbin would have put an
end to all late-term post-viability abortions, unlike Senator
Santorum's proposal, including but not limited to those performed using
the procedure known as ``partial birth.'' The Durbin ban also would
have included a very narrow exception for the rare case when a woman's
life or health is threatened by a troubled pregnancy, as required by
the United States Supreme Court and the Constitution.
I want to end unnecessary late-term abortions, and I also agree with
the Supreme Court that it is not right for a woman who faces grievous
injury, or even death, to have no protection under the law. In those
rare cases of a serious threat to a woman's life or health, the Durbin
amendment would have allowed the woman, her family and no less than two
physicians to pursue the best medical options. Except in an emergency,
the two physicians--to include her attending physician and an
independent non-treating physician--would have been required to certify
in writing that in their medical judgment continuation of the pregnancy
would threaten the mother's life or risk grievous injury to her
physical health. Grievous injury was carefully defined as 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.
I want to emphasize that if we are serious about ending the practice
of late-term abortions then we must pass a law that will be upheld by
our courts. The U.S. Supreme Court has been quite clear that to be
deemed constitutional, any law banning late-term abortions must be
narrowly focused and must include an exception for the health of the
mother. Several previous bans ignored these tests and were struck down,
and consequently there has been no end to this troubling practice.
Senator Santorum's bill does not adequately meet the Court's
requirements for constitutionality and will almost surely meet the same
fate.
The Durbin amendment, on the other hand, was a clear and
comprehensive ban that does comply with the constitutionality tests set
forth by the U.S. Supreme Court. It would have ended the practice of
late-term abortions, with a narrow exception for protecting a woman
from grievous injury to her life or health. In those rare and
extraordinarily difficult situations, the Durbin amendment would have
ensured that a woman--not by the dictates of the Congress, but with the
private counsel of her family, her doctors, and her clergy--makes the
final decision.
I deeply regret that a majority of my Senate colleagues did not
recognize the Durbin amendment was a more effective ban than Senator
Santorum's proposal. I continue to hope that in the end we will find a
way to enact a comprehensive ban on late-term abortions that meets the
demands of the U.S. Supreme Court and Constitution by protecting the
life and physical health of the mother in extreme situations.
____________________