[108th Congress Public Law 105]
[From the U.S. Government Printing Office]
[DOCID: f:publ105.108]
[[Page 117 STAT. 1201]]
Public Law 108-105
108th Congress
An Act
To prohibit the procedure commonly known as partial-birth
abortion. <<NOTE: Nov. 5, 2003 - [S. 3]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Partial-Birth
Abortion Ban Act of 2003.>>
SECTION 1. <<NOTE: 18 USC 1531 note.>> SHORT TITLE.
This Act may be cited as the ``Partial-Birth Abortion Ban Act of
2003''.
SEC. 2. <<NOTE: 18 USC 1531 note.>> FINDINGS.
The Congress finds and declares the following:
(1) A moral, medical, and ethical consensus exists that the
practice of performing a partial-birth abortion--an abortion in
which a physician deliberately and intentionally vaginally
delivers a living, unborn child's body until either the entire
baby's head is outside the body of the mother, or any part of
the baby's trunk past the navel is outside the body of the
mother and only the head remains inside the womb, for the
purpose of performing an overt act (usually the puncturing of
the back of the child's skull and removing the baby's brains)
that the person knows will kill the partially delivered infant,
performs this act, and then completes delivery of the dead
infant--is a gruesome and inhumane procedure that is never
medically necessary and should be prohibited.
(2) Rather than being an abortion procedure that is embraced
by the medical community, particularly among physicians who
routinely perform other abortion procedures, partial-birth
abortion remains a disfavored procedure that is not only
unnecessary to preserve the health of the mother, but in fact
poses serious risks to the long-term health of women and in some
circumstances, their lives. As a result, at least 27 States
banned the procedure as did the United States Congress which
voted to ban the procedure during the 104th, 105th, and 106th
Congresses.
(3) In Stenberg v. Carhart, 530 U.S. 914, 932 (2000), the
United States Supreme Court opined ``that significant medical
authority supports the proposition that in some circumstances,
[partial birth abortion] would be the safest procedure'' for
pregnant women who wish to undergo an abortion. Thus, the Court
struck down the State of Nebraska's ban on partial-birth
abortion procedures, concluding that it placed an ``undue
burden'' on women seeking abortions because it failed to include
an exception for partial-birth abortions deemed necessary to
preserve the ``health'' of the mother.
[[Page 117 STAT. 1202]]
(4) In reaching this conclusion, the Court deferred to the
Federal district court's factual findings that the partial-birth
abortion procedure was statistically and medically as safe as,
and in many circumstances safer than, alternative abortion
procedures.
(5) However, substantial evidence presented at the Stenberg
trial and overwhelming evidence presented and compiled at
extensive congressional hearings, much of which was compiled
after the district court hearing in Stenberg, and thus not
included in the Stenberg trial record, demonstrates that a
partial-birth abortion is never necessary to preserve the health
of a woman, poses significant health risks to a woman upon whom
the procedure is performed and is outside the standard of
medical care.
(6) Despite the dearth of evidence in the Stenberg trial
court record supporting the district court's findings, the
United States Court of Appeals for the Eighth Circuit and the
Supreme Court refused to set aside the district court's factual
findings because, under the applicable standard of appellate
review, they were not ``clearly erroneous''. A finding of fact
is clearly erroneous ``when although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed''. Anderson v. City of Bessemer City, North Carolina,
470 U.S. 564, 573 (1985). Under this standard, ``if the district
court's account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not
reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently''.
Id. at 574.
(7) Thus, in Stenberg, the United States Supreme Court was
required to accept the very questionable findings issued by the
district court judge--the effect of which was to render null and
void the reasoned factual findings and policy determinations of
the United States Congress and at least 27 State legislatures.
(8) However, under well-settled Supreme Court jurisprudence,
the United States Congress is not bound to accept the same
factual findings that the Supreme Court was bound to accept in
Stenberg under the ``clearly erroneous'' standard. Rather, the
United States Congress is entitled to reach its own factual
findings--findings that the Supreme Court accords great
deference--and to enact legislation based upon these findings so
long as it seeks to pursue a legitimate interest that is within
the scope of the Constitution, and draws reasonable inferences
based upon substantial evidence.
(9) In Katzenbach v. Morgan, 384 U.S. 641 (1966), the
Supreme Court articulated its highly deferential review of
congressional factual findings when it addressed the
constitutionality of section 4(e) of the Voting Rights Act of
1965. Regarding Congress' factual determination that section
4(e) would assist the Puerto Rican community in ``gaining
nondiscriminatory treatment in public services,'' the Court
stated that ``[i]t was for Congress, as the branch that made
this judgment, to assess and weigh the various conflicting
considerations * * *. It is not for us to review the
congressional resolution of these factors. It is enough that we
be able to perceive a basis upon which the Congress might
resolve the conflict
[[Page 117 STAT. 1203]]
as it did. There plainly was such a basis to support section
4(e) in the application in question in this case.''. Id. at 653.
(10) Katzenbach's highly deferential review of Congress'
factual conclusions was relied upon by the United States
District Court for the District of Columbia when it upheld the
``bail-out'' provisions of the Voting Rights Act of 1965 (42
U.S.C. 1973c), stating that ``congressional fact finding, to
which we are inclined to pay great deference, strengthens the
inference that, in those jurisdictions covered by the Act, state
actions discriminatory in effect are discriminatory in
purpose''. City of Rome, Georgia v. U.S., 472 F. Supp. 221
(D.D.C. 1979) aff'd City of Rome, Georgia v. U.S., 446 U.S. 156
(1980).
(11) The Court continued its practice of deferring to
congressional factual findings in reviewing the
constitutionality of the must-carry provisions of the Cable
Television Consumer Protection and Competition Act of 1992. See
Turner Broadcasting System, Inc. v. Federal Communications
Commission, 512 U.S. 622 (1994) (Turner I) and Turner
Broadcasting System, Inc. v. Federal Communications Commission,
520 U.S. 180 (1997) (Turner II). At issue in the Turner cases
was Congress' legislative finding that, absent mandatory
carriage rules, the continued viability of local broadcast
television would be ``seriously jeopardized''. The Turner I
Court recognized that as an institution, ``Congress is far
better equipped than the judiciary to `amass and evaluate the
vast amounts of data' bearing upon an issue as complex and
dynamic as that presented here'', 512 U.S. at 665-66. Although
the Court recognized that ``the deference afforded to
legislative findings does `not foreclose our independent
judgment of the facts bearing on an issue of constitutional
law,' '' its ``obligation to exercise independent judgment when
First Amendment rights are implicated is not a license to
reweigh the evidence de novo, or to replace Congress' factual
predictions with our own. Rather, it is to assure that, in
formulating its judgments, Congress has drawn reasonable
inferences based on substantial evidence.''. Id. at 666.
(12) Three years later in Turner II, the Court upheld the
``must-carry'' provisions based upon Congress' findings, stating
the Court's ``sole obligation is `to assure that, in formulating
its judgments, Congress has drawn reasonable inferences based on
substantial evidence.' '' 520 U.S. at 195. Citing its ruling in
Turner I, the Court reiterated that ``[w]e owe Congress'
findings deference in part because the institution `is far
better equipped than the judiciary to ``amass and evaluate the
vast amounts of data'' bearing upon' legislative questions,''
id. at 195, and added that it ``owe[d] Congress' findings an
additional measure of deference out of respect for its authority
to exercise the legislative power.''. Id. at 196.
(13) There exists substantial record evidence upon which
Congress has reached its conclusion that a ban on partial-birth
abortion is not required to contain a ``health'' exception,
because the facts indicate that a partial-birth abortion is
never necessary to preserve the health of a woman, poses serious
risks to a woman's health, and lies outside the standard of
medical care. Congress was informed by extensive hearings held
during the 104th, 105th, 107th, and 108th Congresses and passed
a ban on partial-birth abortion in the 104th, 105th,
[[Page 117 STAT. 1204]]
and 106th Congresses. These findings reflect the very informed
judgment of the Congress that a partial-birth abortion is never
necessary to preserve the health of a woman, poses serious risks
to a woman's health, and lies outside the standard of medical
care, and should, therefore, be banned.
(14) Pursuant to the testimony received during extensive
legislative hearings during the 104th, 105th, 107th, and 108th
Congresses, Congress finds and declares that:
(A) Partial-birth abortion poses serious risks to
the health of a woman undergoing the procedure. Those
risks include, among other things: An increase in a
woman's risk of suffering from cervical incompetence, a
result of cervical dilation making it difficult or
impossible for a woman to successfully carry a
subsequent pregnancy to term; an increased risk of
uterine rupture, abruption, amniotic fluid embolus, and
trauma to the uterus as a result of converting the child
to a footling breech position, a procedure which,
according to a leading obstetrics textbook, ``there are
very few, if any, indications for * * * other than for
delivery of a second twin''; and a risk of lacerations
and secondary hemorrhaging due to the doctor blindly
forcing a sharp instrument into the base of the unborn
child's skull while he or she is lodged in the birth
canal, an act which could result in severe bleeding,
brings with it the threat of shock, and could ultimately
result in maternal death.
(B) There is no credible medical evidence that
partial-birth abortions are safe or are safer than other
abortion procedures. No controlled studies of partial-
birth abortions have been conducted nor have any
comparative studies been conducted to demonstrate its
safety and efficacy compared to other abortion methods.
Furthermore, there have been no articles published in
peer-reviewed journals that establish that partial-birth
abortions are superior in any way to established
abortion procedures. Indeed, unlike other more commonly
used abortion procedures, there are currently no medical
schools that provide instruction on abortions that
include the instruction in partial-birth abortions in
their curriculum.
(C) A prominent medical association has concluded
that partial-birth abortion is ``not an accepted medical
practice'', that it has ``never been subject to even a
minimal amount of the normal medical practice
development,'' that ``the relative advantages and
disadvantages of the procedure in specific circumstances
remain unknown,'' and that ``there is no consensus among
obstetricians about its use''. The association has
further noted that partial-birth abortion is broadly
disfavored by both medical experts and the public, is
``ethically wrong,'' and ``is never the only appropriate
procedure''.
(D) Neither the plaintiff in Stenberg v. Carhart,
nor the experts who testified on his behalf, have
identified a single circumstance during which a partial-
birth abortion was necessary to preserve the health of a
woman.
(E) The physician credited with developing the
partial-birth abortion procedure has testified that he
has never encountered a situation where a partial-birth
abortion was
[[Page 117 STAT. 1205]]
medically necessary to achieve the desired outcome and,
thus, is never medically necessary to preserve the
health of a woman.
(F) A ban on the partial-birth abortion procedure
will therefore advance the health interests of pregnant
women seeking to terminate a pregnancy.
(G) In light of this overwhelming evidence, Congress
and the States have a compelling interest in prohibiting
partial-birth abortions. In addition to promoting
maternal health, such a prohibition will draw a bright
line that clearly distinguishes abortion and
infanticide, that preserves the integrity of the medical
profession, and promotes respect for human life.
(H) Based upon Roe v. Wade, 410 U.S. 113 (1973) and
Planned Parenthood v. Casey, 505 U.S. 833 (1992), a
governmental interest in protecting the life of a child
during the delivery process arises by virtue of the fact
that during a partial-birth abortion, labor is induced
and the birth process has begun. This distinction was
recognized in Roe when the Court noted, without comment,
that the Texas parturition statute, which prohibited one
from killing a child ``in a state of being born and
before actual birth,'' was not under attack. This
interest becomes compelling as the child emerges from
the maternal body. A child that is completely born is a
full, legal person entitled to constitutional
protections afforded a ``person'' under the United
States Constitution. Partial-birth abortions involve the
killing of a child that is in the process, in fact mere
inches away from, becoming a ``person''. Thus, the
government has a heightened interest in protecting the
life of the partially-born child.
(I) This, too, has not gone unnoticed in the medical
community, where a prominent medical association has
recognized that partial-birth abortions are ``ethically
different from other destructive abortion techniques
because the fetus, normally twenty weeks or longer in
gestation, is killed outside of the womb''. According to
this medical association, the `` `partial birth' gives
the fetus an autonomy which separates it from the right
of the woman to choose treatments for her own body''.
(J) Partial-birth abortion also confuses the
medical, legal, and ethical duties of physicians to
preserve and promote life, as the physician acts
directly against the physical life of a child, whom he
or she had just delivered, all but the head, out of the
womb, in order to end that life. Partial-birth abortion
thus appropriates the terminology and techniques used by
obstetricians in the delivery of living children--
obstetricians who preserve and protect the life of the
mother and the child--and instead uses those techniques
to end the life of the partially-born child.
(K) Thus, by aborting a child in the manner that
purposefully seeks to kill the child after he or she has
begun the process of birth, partial-birth abortion
undermines the public's perception of the appropriate
role of a physician during the delivery process, and
perverts a process during which life is brought into the
world, in order to destroy a partially-born child.
[[Page 117 STAT. 1206]]
(L) The gruesome and inhumane nature of the partial-
birth abortion procedure and its disturbing similarity
to the killing of a newborn infant promotes a complete
disregard for infant human life that can only be
countered by a prohibition of the procedure.
(M) The vast majority of babies killed during
partial-birth abortions are alive until the end of the
procedure. It is a medical fact, however, that unborn
infants at this stage can feel pain when subjected to
painful stimuli and that their perception of this pain
is even more intense than that of newborn infants and
older children when subjected to the same stimuli. Thus,
during a partial-birth abortion procedure, the child
will fully experience the pain associated with piercing
his or her skull and sucking out his or her brain.
(N) Implicitly approving such a brutal and inhumane
procedure by choosing not to prohibit it will further
coarsen society to the humanity of not only newborns,
but all vulnerable and innocent human life, making it
increasingly difficult to protect such life. Thus,
Congress has a compelling interest in acting--indeed it
must act--to prohibit this inhumane procedure.
(O) For these reasons, Congress finds that partial-
birth abortion is never medically indicated to preserve
the health of the mother; is in fact unrecognized as a
valid abortion procedure by the mainstream medical
community; poses additional health risks to the mother;
blurs the line between abortion and infanticide in the
killing of a partially-born child just inches from
birth; and confuses the role of the physician in
childbirth and should, therefore, be banned.
SEC. 3. PROHIBITION ON PARTIAL-BIRTH ABORTIONS.
(a) In General.--Title 18, United States Code, is amended by
inserting after chapter 73 the following:
``CHAPTER 74--PARTIAL-BIRTH ABORTIONS
``Sec.
``1531. Partial-birth abortions prohibited.
``Sec. 1531. Partial-birth abortions prohibited
``(a) Any physician who, in or affecting interstate or foreign
commerce, knowingly performs a partial-birth abortion and thereby kills
a human fetus shall be fined under this title or imprisoned not more
than 2 years, or both. This subsection does not apply to a partial-birth
abortion that is necessary to save the life of a mother whose life is
endangered by a physical disorder, physical illness, or physical injury,
including a life-endangering physical condition caused by or arising
from the pregnancy itself. <<NOTE: Effective date.>> This subsection
takes effect 1 day after the enactment.
``(b) As used in this section--
``(1) the term `partial-birth abortion' means an abortion in
which the person performing the abortion--
``(A) deliberately and intentionally vaginally
delivers a living fetus until, in the case of a head-
first presentation, the entire fetal head is outside the
body of the mother, or, in the case of breech
presentation, any part of the
[[Page 117 STAT. 1207]]
fetal trunk past the navel is outside the body of the
mother, for the purpose of performing an overt act that
the person knows will kill the partially delivered
living fetus; and
``(B) performs the overt act, other than completion
of delivery, that kills the partially delivered living
fetus; and
``(2) the term `physician' means a doctor of medicine or
osteopathy legally authorized to practice medicine and surgery
by the State in which the doctor performs such activity, or any
other individual legally authorized by the State to perform
abortions: Provided, however, That any individual who is not a
physician or not otherwise legally authorized by the State to
perform abortions, but who nevertheless directly performs a
partial-birth abortion, shall be subject to the provisions of
this section.
``(c)(1) The father, if married to the mother at the time she
receives a partial-birth abortion procedure, and if the mother has not
attained the age of 18 years at the time of the abortion, the maternal
grandparents of the fetus, may in a civil action obtain appropriate
relief, unless the pregnancy resulted from the plaintiff's criminal
conduct or the plaintiff consented to the abortion.
``(2) Such relief shall include--
``(A) money damages for all injuries, psychological and
physical, occasioned by the violation of this section; and
``(B) statutory damages equal to three times the cost of the
partial-birth abortion.
``(d)(1) A defendant accused of an offense under this section may
seek a hearing before the State Medical Board on whether the physician's
conduct was necessary to save the life of the mother whose life was
endangered by a physical disorder, physical illness, or physical injury,
including a life-endangering physical condition caused by or arising
from the pregnancy itself.
``(2) The findings on that issue are admissible on that issue at the
trial of the defendant. Upon a motion of the defendant, the court shall
delay the beginning of the trial for not more than 30 days to permit
such a hearing to take place.
``(e) A woman upon whom a partial-birth abortion is performed may
not be prosecuted under this section, for a conspiracy to violate this
section, or for an offense under section 2, 3, or 4 of this title based
on a violation of this section.''.
[[Page 117 STAT. 1208]]
(b) Clerical Amendment.--The table of chapters for part I of title
18, United States Code, is amended by inserting after the item relating
to chapter 73 the following new item:
``74. Partial-birth abortions....................................1531''.
Approved November 5, 2003.
LEGISLATIVE HISTORY--S. 3 (H.R. 760):
---------------------------------------------------------------------------
HOUSE REPORTS: Nos. 108-58 accompanying H.R. 760 (Comm. on the
Judiciary) and 108-288 (Comm. of Conference).
CONGRESSIONAL RECORD, Vol. 149 (2003):
Mar. 10-13, considered and passed Senate.
June 4, considerd and passed House, amended, in lieu of H.R.
760.
Oct. 2, House agreed to conference report.
Oct. 21, Senate agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 39 (2003):
Nov. 5, Presidential remarks.
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