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PARTIAL-BIRTH ABORTION BAN ACT OF 1997
(Senate - May 15, 1997)

Text of this article available as: TXT PDF [Pages S4517-S4575] PARTIAL-BIRTH ABORTION BAN ACT OF 1997 The PRESIDING OFFICER. Under the previous order, the Senate will now proceed to H.R. 1122, which the clerk will report. The legislative clerk read as follows: A bill (H.R. 1122) to amend title 18, United States Code, to ban partial-birth abortions. The Senate resumed consideration of the bill. The PRESIDING OFFICER (Mr. Inhofe). Under the previous order, the Senator from California is recognized to call up an amendment. Mrs. FEINSTEIN. Thank you, Mr. President. Amendment No. 288 (Purpose: To prohibit certain abortions) Mrs. FEINSTEIN. Mr. President, I would like to begin this debate by sending an amendment to the desk. This amendment is sent on behalf of myself, Senator Boxer, and Senator Moseley-Braun. The PRESIDING OFFICER. The clerk will report the amendment. The assistant legislative clerk read as follows: The Senator from California [Mrs. Feinstein], for herself, Mrs. Boxer, and Ms. Moseley-Braun proposes an amendment numbered 288. Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Strike all after the enacting clause and insert the following: SECTION 1. SHORT TITLE. This Act may be cited as the ``Post-Viability Abortion Restriction Act''. SEC. 2. PROHIBITION ON CERTAIN ABORTIONS. (a) In General.--It shall be unlawful, in or affecting interstate or foreign commerce, for [[Page S4518]] a physician knowingly to perform an abortion after the fetus has become viable. (b) Exception.--Subsection (a) does not apply if, in the medical judgment of the attending physician, the abortion is necessary to preserve the life of the woman or to avert serious adverse health consequences to the woman. SEC. 3. CIVIL PENALTIES. (a) Action by Attorney General.--The Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General or United States Attorney specifically designated by the Attorney General (referred to in this Act as the ``appropriate official''), may commence a civil action under this subsection in any appropriate United States district court to enforce the provisions of this Act. (b) Relief.-- (1) First violation.--In an action commenced under subsection (a), if the court finds that the respondent in the action has violated a provision of this Act, the court shall assess a civil penalty against the respondent in an amount not exceeding $100,000, and refer the case to the State medical licensing authority for consideration of suspension of the respondent's medical license. (2) Second violation.--If a respondent in an action commenced under subsection (a) has been found to have violated a provision of this Act on a prior occasion, the court shall assess a civil penalty against the respondent in an amount not exceeding $250,000, and refer the case to the State medical licensing authority for consideration of revocation of the respondent's medical license. (c) Certification Requirements.-- (1) In general.--At the time of the commencement of an action under subsection (a), the appropriate official shall certify to the court involved that the appropriate official-- (A) has provided notification in writing of the alleged violation of this Act, at least 30 calendar days prior to the filing of such action, to the attorney general or chief legal officer of the appropriate State or political subdivision; and (B) believes that such an action by the United States is in the public interest and necessary to secure substantial justice. (2) Limitation.--No woman who has had an abortion after fetal viability may be penalized under this Act for a conspiracy to violate this section or for an offense under section 2, 3, 4, or 1512 of title 18, United States Code. SEC. 4. REGULATIONS AND PROCEDURES. (a) In General.--Not later than 60 days after the date of enactment of this Act, the Secretary of Health and Human Services shall establish regulations-- (1) requiring an attending physician described in section 2(b) to certify that, in the best medical judgment of the physician, the abortion described in section 2(b) was medically necessary to preserve the life or to avert serious adverse health consequences to the woman involved, and to describe the medical indications supporting the judgment; and (2) to ensure the confidentiality of all information submitted pursuant to a certification by a physician under paragraph (1). (b) State Regulations and Procedures.--The regulations described in subsection (a) shall not apply in a State that has established regulations described in subsection (a). SEC. 5. RULE OF CONSTRUCTION. Nothing in this Act shall be construed to prohibit State or local governments from regulating, restricting, or prohibiting post-viability abortions to the extent permitted by the Constitution of the United States. Mrs. FEINSTEIN. Mr. President, I rise to offer a substitute amendment to H.R. 1122, which, as I said, is cosponsored by Senators Boxer and Moseley-Braun. The amendment we offer is presented as an alternative to the House-passed bill on so-called partial-birth abortions and as an alternative to the Daschle substitute as well. My colleagues and I offer this amendment for one reason: We very much believe that any legislation put forward by Congress that restricts access to abortions or to a particular medical procedure must be constitutional and must contain sufficient protections for a woman's health. The Feinstein-Boxer-Moseley-Braun bill provides that protection while instituting a ban on post-viability abortions similar to that in the Daschle bill. Our bill does three things. First, it prohibits all abortions after a fetus has become viable or able to live independently outside of the mother's womb. Second, it provides an exception for cases where, in the medical judgment of a physician, an abortion is necessary to preserve the life of the mother or to prevent serious adverse health consequences to the mother. And third, it provides stringent civil penalties for physicians performing post-viability abortions in the absence of compelling medical reasons. The penalties are limited to the physician and include for the first offense a fine of $100,000, and referral to a State licensing board for possible suspension of the medical license. For the second offense, the fine would be up to $250,000, with referral to the State licensing board for possible revocation of license. There is no health exception in H.R. 1122, known as the Santorum bill. And we do not believe that the health exception provided in the Daschle bill is sufficient, nor do we believe that it will meet the constitutional test. Let me begin by speaking of my opposition to the House bill. And let me begin by pleading with anyone listening to this debate to read the bill--read H.R. 1122. It is short. It is easy to read. I want to quote from page 2 of that bill to illustrate what this bill does. Let me begin on line 9: 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 two years, or both. The bill refers to a ``partial-birth abortion,'' which is a term not existing in medical literature or medical texts. So let us find out what a partial-birth abortion is. And we turn to line 19 of page 2 for that description: As used in this section, the term ``partial-birth abortion'' means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery. The issue here is clear. We heard yesterday on this floor a vivid description of a procedure, a procedure known as ``intact D'' Nowhere in House Resolution 1122 are ``intact D'' or ``intact D'' or any medical procedure referred to. Instead, we have a term not existent in medical science anywhere called ``partial-birth abortion.'' Now, anyone who is familiar with a woman's physiology knows that this term can be used to deny second-trimester and third-trimester abortions--virtually, I believe, all of them. If the concern of the authors of this legislation were truly in fact to prohibit or ban one specific procedure, why would they not spell out what the procedure is in legislative language just as they have graphically spelled out the procedure on the Senate floor? Why? Why not do that? I believe there is a reason why they did not do that. And the reason is, that I sincerely believe that this bill is meant to do much more, much more than simply ban a procedure known as intact D or intact D I believe that this bill is essentially a Trojan horse, a Trojan horse in the sense that it is not at all what it seems to be on the outside. If you look on the inside, which means opening the page of the bill, you will see that this bill is the first major legislative thrust to make abortion in the United States of America illegal. I stated yesterday on the floor that we are really a product of our live's experiences. And my life's experiences that have caused me to be essentially pro-choice are essentially threefold. The first, my days in college at Stanford University, days when I remember a bright young woman who committed suicide because she was pregnant and abortion was illegal in the United States. And I also remember the passing of a plate in a college dormitory so that another friend could go to Mexico for an abortion. I remember that well. My second life experience was in the early 1960's at the California Institution for Women, the women's prison in California for women convicted of felonies, where I set sentences and granted paroles to women convicted of providing abortions. I remember this well because the only way a case really came to the attention of the authorities was either through the morbidity or the mortality of the patient. And I remember the graphic stories in those cumulative summaries that were given to us prior to term setting, of what happened to women who were victims of illegal abortions. And I remember that the women who provided the abortions would leave and come back and commit the same crime again because of the importunings of other women. And the third graphic experience for me was becoming a grandmother and finding out that my daughter in her pregnancy had an unexpected, very serious, potentially life-threatening problem, and realizing how surprised I was not to know that this could happen in this day and age. But it did happen. [[Page S4519]] My story--my daughter's story--came out fine because today I have a bright-eyed and bushy-tailed and wonderful, light of my life, in the form of a 4\1/2\-year-old granddaughter by the name of Eileen. But I learned that there can be unpredictable occurrences, and that when we legislate--in a piece of paper that becomes an abiding law enforced everywhere throughout the United States of America--we ought to legislate with the knowledge that human life and human experience has many permutations that are unexpected and unanticipated. I view H.R. 1122 as doing much, much more than banning a simple procedure. That procedure is not mentioned anywhere in this piece of legislation. But it does set up the basis for lawsuit after lawsuit against any physician that might practice and might perform a second- trimester abortion. Every other type of abortion in some way has the head of the fetus coming through the birth canal. And then the case is, at what point is that fetus still living or not living? And so I think it is a potentially very dangerous piece of legislation in that regard. I mentioned yesterday that I basically do not believe that intact D or intact D should be used, that there are other forms of abortion. That is my personal belief. And I believe that the AMA is on its way in a medical venue of taking some steps to limit it. We all know we are talking about less than 1 percent of all of the abortions that take place in this country, in any event. So the question is, what do we do? What kind of legislation do we present that recognizes the exigencies, the human trials, the difficulties that a woman can have? Yesterday, I mentioned a young nurse; her name is Viki Wilson. When I was a county supervisor and mayor, I worked with her mother, Susan Wilson, who was a supervisor from Santa Clara County. Viki Wilson is a nurse, married to a doctor. In her 36th week she had a sonogram and she found out she had a severely deformed baby with its brain outside its skull. She learned that the contractions she was having were actually seizures that the child was having and that the child was incompatible of sustaining life outside of the womb. She went to a doctor and her doctor recommended the particular procedure that is under siege here today, as the procedure, at that stage of her pregnancy, that would be most protective of her health. I cannot tell you whether it was or not. I am not a physician. There is only one physician in this body who might know. Yet, we are going to legislate, in a bill that is drafted to be so broad, that it can impact much more than one procedure. The amendment that the three of us present to this body today, we believe, comports with Roe versus Wade. We believe it would not put in jeopardy every second- and third-trimester abortion. We believe it would prohibit every third-trimester abortion unless the life and the health, as defined by serious adverse health consequences to the mother, were at risk, and that this decision would be made by the physician and the woman, which I think is the appropriate remedy for this issue. I think this is a very difficult debate because most people have not read the bill before the Senate, H.R. 1122. Most people really do not understand the whole panoply of human ills that can take place in a pregnancy. I believe the AMA, in the recent paper they have put forward, very clearly indicates they believe that, with few exceptions, this procedure that is at question should not be used. However, they are not--and I think rightly so--not ready to sacrifice the integrity of the medical profession to say that no doctor, no matter what the situation is, no matter what the physiology of the woman may be, no matter that she may not be able to have another procedure, that she might be adversely impacted healthwise, cannot, no matter what the situation is, have this procedure as a remedy. Mr. President, we present to you a bill that we believe is constitutional, a bill that would ban all third-trimester abortions, unless the life and health of the woman, as defined as serious adverse health consequences, were threatened. The bill includes very strong civil penalties, which we believe would be a substantial deterrent to the performance of any third-trimester abortions unless there is a very serious medical need. Mr. President, I notice my distinguished colleague, and I ask the Senator from Massachusetts how much time he desires. Mr. KENNEDY. I would like 10 minutes, and I appreciate the courtesy, but I expect, Mr. President, that we are perhaps alternating back and forth. I see Senator DeWine, as well as Senator Santorum. Mr. SANTORUM. I will do a unanimous-consent request and then be happy to let the Senator from Massachusetts speak. Mrs. FEINSTEIN. I yield the floor. Privilege of the Floor Mr. SANTORUM. Mr. President, I ask unanimous consent that Steven Schlesinger, a detailee on the Judiciary Committee, and Michelle Kitchen, a member of my staff, be permitted privileges of the floor for the duration of the debate. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Massachusetts. Mr. KENNEDY. Mr. President, it is unfortunate that the Republican leadership has chosen to force this debate on the same confrontational and unconstitutional legislation that President Clinton vetoed last year, when reasonable and constitutional alternatives are so obviously available. It is clear that the primary purpose of the Republican leaders is not to regulate late-term abortions, but to roll back the protections for women guaranteed by the Supreme Court. If the goal is to pass effective legislation, the sponsors of the Santorum bill know they must meet the constitutional requirments for protecting of a woman's right to choose. President Clinton has made clear that he cannot and will not accept a ban on any procedure that represents the best hope for a woman to avoid serious risks to her health. The bill vetoed last year and the bill before us today are identical, and they clearly fail to provide these needed protections for women. The Supreme Court rulings in the Roe and Casey decisions prohibit Congress and the States from imposing an ``undue burden'' on a woman's right to choose to have an abortion at any time up to the point where the developing fetus reaches the stage of viability. Governments can constitutionally limit abortions after the stage of viability, as long as the limitations contain exceptions to protect the life and the health of the woman. This bill flunks that clear constitutional test in two ways. It imposes an undue burden--a flat prohibition--on a woman's constitutional right to an abortion before fetal viability. And it impermissibly limits the right to an abortion after fetal viability, by excluding any protection whatsoever for the woman's health. Given the clear constitutional problems with this bill, it is fair to ask, why do Republicans insist that we send it to the President, for another certain veto, when reasonable alternatives are available. In fact, there is little need for any Federal legislation in this area because 41 States already ban late-term abortions. Massachusetts has prohibited these abortions except when the woman's life is in danger or ``the continuation of the pregnancy would impose a substantial risk of grave impairment to the woman's physical or mental health.'' Many other States have similar restrictions. There is no evidence that the States are not enforcing their laws. Supporters of the Republican bill also claim that the public and Congress were misled about the actual number of abortions performed by the procedure that would be banned by their bill. But very few, if any, of us in the last Congress were misled about the facts. Only a few hundred of these procedures are performed after viability, and they are performed in cases where the fetus cannot survive because of a severe medical abnormality, or where there is a serious threat to the life or the health of the woman. It was clearly reported during last year's debate that the procedure was also used before the stage of viability, and that the number of such cases was larger, probably amounting to several thousand a year. But all of us were also [[Page S4520]] aware that Congress cannot constitutionally ban the procedure at that stage. We know that some doctors begin to use the particular procedure that would be banned by the Republican bill at about 20 weeks of gestation, which is well before the time when a fetus has the capacity for survival outside the womb. Most authorities place the time of viability at 24 to 26 weeks in a normal pregnancy. According to the best available statistics, 99 percent of all abortions are performed before 20 weeks. Only about 1 percent of all abortions are performed after that time, and two-thirds of those abortions are performed before the 23d week. This information is provided by the Alan Guttmacher Institute and used by the National Center for Health Statistics. It is the most accurate information available. Even so, it is difficult to draw a sharp dividing line on the viability of a particular pregnancy. A great deal depends on the prenatel care the woman is receiving. Low-birth weight babies reach viability at later stages of pregnancy. A further problem is that viability is to some extent a statistical concept. At 21 weeks of a normal pregnancy, few if any fetuses can survive. At 23 weeks about 25 percent survive. At 26 weeks about 50 percent survive. A physician's decision relies on best medical judgment, but it is hardly precise for a particular case. The real issue involves lives and the health of women. The so-called partial-birth abortion bill would not stop a single abortion. Instead, it would force women to use another, possibly more dangerous procedure if they must terminate their pregnancy to preserve their health. Of course, the sponsors of this bill continue to argue that there are no circumstances in which a procedure banned by the bill is necessary to preserve a woman's health. And, even worse, some supporters don't seem to care. Mark Crutcher, president of Life Dynamics, an antiabortion organization based in Denton TX, told the Detroit Free Press that the bill is ``a scam being perpetrated by people on our side of the issue * * * for fund-raising purposes.'' It doesn't seem to matter to the proponents of this defective Republican bill that women like Maureen Britell, Eileen Sullivan, Coreen Costello, Erica Fox, Vikki Stella, Tammy Watts, Viki Wilson, and others will be forced to risk serious health consequences if this bill becomes law. Doctor after doctor has told us that this procedure may be necessary to preserve a woman's health. The American College of Obstetricians and Gynecologists has said: An intact D may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision. The intervention of legislative bodies into medical decisionmaking is inappropriate, ill- advised, and dangerous. Perhaps if the Republican men in Congress were the ones to get pregnant, they would show more compassion for the women who find themselves in these tragic circumstances. Take the case of Coreen Costello. After consulting numerous medical experts and doing everything possible to save her child, Coreen had the procedure that would be banned by this legislation. Based on that experience, she gave the following testimony to the Senate Judiciary Committee last year: I hope you can put aside your political differences, your positions on abortion, and your party affiliations and just try to remember us. We are the ones who know. We are the families that ache to hold our babies, to love them, to nurture them. We are the families who will forever have a hole in our hearts. We are the families that had to choose how our babies would die * * * please put a stop to this terrible bill. Families like mine are counting on you. I oppose this legislation. Instead, I stand with Coreen Costello and others whose lives and health must be protected. The alternative proposed by Senator Snowe and Senator Daschle provides that protection, and so does the alternative proposed by Senator Feinstein, Senator Boxer and Senator Moseley-Braun. I intend to vote for these alternatives, because they respect the Constitution, and above all they respect the right of women and their doctors to make these difficult and tragic decisions. The PRESIDING OFFICER. The Senator from California. Mrs. FEINSTEIN. How much time is the Senator requesting? Mrs. BOXER. I ask for 15 minutes. Mrs. FEINSTEIN. Mr. President, I am happy to yield 15 minutes to the Senator from California. The PRESIDING OFFICER. The Senator from California. Mrs. BOXER. Mr. President, let me say how proud I am to stand with my colleague, my senior Senator from California, Senator Feinstein, and the senior Senator from Illinois, Senator Carol Moseley-Braun, who has just arrived on the floor, to speak in favor of the bill which really addresses an issue that the American people want addressed. It does so in a way that is constitutional. It does so in a way that is respectful of women and their families. When we approach this issue, we have very strong feelings in the approach that is taken, in a sensitive way. It is harmful legislation. It will harm women, will hurt women, will lead to women dying, will lead to women suffering infertility, suffering paralysis, and all needlessly. So what we have done in this legislation, which I am very proud of, is to basically codify Roe versus Wade. In other words, we support a woman's right to choose with the understanding that after viability, when the fetus can live outside the womb with or without life support, we want to be very careful that there should be no abortion at all unless the woman's life is threatened, or her health is threatened, and in those cases where a doctor so determines and the woman's family so agrees, that that woman will be able to terminate that pregnancy in a way that protects her life and her health. What we are attempting to do in the course of this debate is to put a woman's face back on this issue because, when you listen to the other side, the woman is completely forgotten. As I said yesterday, the day we pass legislation that harms more than half of our population is the day that I wonder what we are doing as a country. I hope that the other side on this issue would join hands with us and get this passed. We know the President would sign this bill. Then we can tell the American people together that the only cases of late-term abortion in this Nation that would be allowed is when the woman faces a life-threatening situation, if the pregnancy continues, or one that is so serious that action must be taken to terminate the pregnancy. Senator Santorum would outlaw a particular procedure and not allow it be used except in the most narrow circumstance. I want to tell you what some doctors have said about this procedure that Senator Santorum would ban. The American College of Obstetricians and Gynecologists is an organization representing 37,000 physicians. As I have said in the past, I know those of us who come to the U.S. Senate are pretty strong people who believe in our views, who believe in ourselves, but we ought to leave our egos at the door when it comes to protecting lives. When it comes to medical emergencies, we do not have the capability of deciding what procedure ought to be used in a hospital room. If you were to ask your constituents, I don't care what party, or whether they are Independent, Republican, Democratic, or whatever party they are for, who would you rather have in the emergency room with you, Senator Santorum, Senator Boxer, or the family doctor who is trained, who understands the issue? I think they would say, ``I don't want any politicians in the hospital room with me. I want the best physician that I can find for my wife or for my daughter or for my niece. And I want that doctor to have the full range of options,'' knowing that there will never be an abortion in the late term unless the life or health of the mother is at stake. That is a pretty moderate course, it seems to me, a pretty reasonable course. And that is the course of the Feinstein-Boxer-Moseley-Braun bill. Let me repeat, under our bill, there will be no late-term abortion, no post-viability abortion unless the doctor determines that to protect the woman's life and health he or she must terminate the pregnancy. [[Page S4521]] Senator Feinstein talked about Viki Wilson. I have her picture up here behind me with her loving family. And I think it is worth repeating the story. In her 36th week of the pregnancy, the nursery was ready, the family was anticipating the arrival of their new family member. Viki's doctor ordered an ultrasound which detected something that all of her prenatal testing had failed to detect. As Senator Feinstein told you, two-thirds of her daughter's brain had formed outside the skull, and the doctors feared that Viki's uterus would rupture in the birthing process leaving Viki sterile. After consulting with other physicians, with their clergy, with their God, in order to preserve Viki's fertility, they made the painful choice to have this procedure that would be outlawed under the Santorum bill. Now you see Viki, who has protected her fertility, a decision made with her doctor and her God. This procedure would be outlawed by the Santorum bill. The 37,000 gynecologists and obstetricians stated that this procedure that would be outlawed under the Santorum bill ``may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances, can make this decision. . .'' Today I received an additional letter that I want to share with my colleagues from David Grimes, a physician in San Francisco, CA. He tells the story--that he had never used this procedure that Senator Santorum wants to outlaw. But he talks about it this way, and the time that he did use it recently. He says: A woman in the Bay Area became seriously ill with preeclampsia (which is toxemia of pregnancy) at 24 weeks' gestation. She had a dangerous and extreme form of disease, called HELLP syndrome . . . she had liver failure and abnormal blood-clotting ability. The pregnancy had to be terminated to save her life. During several days spent unsuccessfully in attempts to induce labor, her medical condition continued to deteriorate. Finally, in desperation, the attending physician called me to assist . . . He said he accomplished the procedure in a manner of minutes with very little blood loss. She recovered quickly thereafter, and her physician discharged her home in good condition after a few weeks. He said: . . . I received a lovely thank you note from her husband. You know, this isn't only about women. It is about their loving husbands and their loving fathers. He ``received a . . . note from her husband thanking me for saving his wife's life.'' And the doctor said: In this instance, an intact D was the fastest and safest option available to me and to the patient. Congress must not take this option away. So, yet--and I have many other letters from physicians--that is exactly what this Congress is set to do. With the exception of 1 physician, who I don't believe is an OB-GYN, we have 99 people in here who do not know a whit about being an obstetrician or gynecologist. They don't have any training, at least that I know of. I find it the height of--I don't even know the right word to use--the ``height of ego,'' I guess, to think that we would know more than a physician, we would pass legislation that would take an option away from a physician. I can't believe that we would be doing this. I can tell you, I just had a community meeting in California. Maybe I knew 2 people out of 700 people that came out to the community meeting. The floor was open. It was their meeting. And not one of them stood up in that meeting and said, ``Senator Boxer, you ought to go there and outlaw medical procedures.'' What they told me is go back there and get that budget balanced, educate our children, and preserve our freedoms. So I have to say this is now the third time we have taken up this debate. It is the third time. It is painful. It is difficult. The reason I find it so painful is because in the name of saving pain, this Congress is going to vote for a bill that is going to cause families pain, and not just momentary pain, but long-lasting pain, because when a woman loses her fertility it is long-lasting pain, or if a woman gets paralyzed it is long-lasting pain. I want to talk to you about a couple of other women: Maureen Britell, a 30-year-old, Irish-Catholic mother of two, who lives in Massachusetts. On February 17, Maureen and her husband were awaiting--this is in 1994--joyously awaiting the birth of their second child. On that date, when she was 5 months pregnant, a sonogram determined that her daughter had no brain and could not live outside the womb. Her doctor recommended termination of the pregnancy. The next day a third-degree sonogram at the New England Medical Center in Boston confirmed the diagnosis that the baby had no brain and was not viable. Maureen and her family sought counsel from their parish priest, Father Greg, who supported the decision to terminate the pregnancy. Let me repeat that. Maureen and her family sought counsel from their parish priest, Father Greg, who supported the decision to terminate the pregnancy. They named their daughter Dahlia. She had a Catholic funeral, and was buried at Otis Air Force Base in Cape Cod. So Senators are going to interfere with the decision made by a family, its doctor, and their God. And by the passage of the Santorum legislation, if in fact it is going to pass, which indications are it will, that is just what we are doing--the height of ego. ``We know better than a doctor. We know better than a priest. We know better than a rabbi. We are going to be in the hospital room. We are going to say what medical procedures can't be performed.'' What is the next one? There are no pretty medical procedures, period. What is the next one that we are going to stand up here and outlaw? I want you to meet Eileen Sullivan. Eileen Sullivan, with 10 brothers and sisters, runs a nursery school in southern California. And she is an Irish-Catholic woman. Eileen writes, ``For as long as I can remember, being in the company of children was when I was happiest. So when my husband and I watched the home pregnancy test slowly show a positive result, we were ecstatic. After three years of trying to conceive a baby, I didn't believe it. So I kept checking the test against the diagram on the package. Sure enough, we had done it. We were going to have a baby.'' Eileen continues: My long awaited pregnancy was easy and blissful. As I charted my baby's growth week by week, the bond grew stronger between us. Many nights I spoke to my baby, saying that I accepted it just as it was, boy or girl, with dark eyes like mine or blue like my husband's. I didn't care--I was just so happy that we would finally be parents. At 26 weeks, Eileen went to her obstetrician for a routine ultrasound. After a few moments, her doctor got quiet and began to focus intently on the monitor. The doctor confirmed that there was a problem and sent Eileen and her husband to have tests immediately. The Sullivans went to a genetic specialist for another ultrasound. The doctor concluded that among other things: the baby's brain was improperly formed and being pressured by a back-up of fluid. His head was enlarged, his heart was malformed, his liver was malfunctioning, and there was a dangerously low amount of amniotic fluid. According to Eileen, for 2 hours the specialist detailed the baby's anomalies. Eileen writes, ``My husband and I held one another and tried to understand what was happening. This was a nightmare. We spoke to a genetics counselor and had a battery of additional tests including an amniocentesis and a placenta biopsy.'' She continues: ``When the tests came back, the prognosis was the same--the anomalies were incompatible with life.'' ``Not wanting to accept this,'' she writes, ``we went to another specialist--a pediatric cardiologist. His prognosis was no better. According to the cardiologist, our baby's heart condition was lethal and he would not live.'' She continues: ``We wept. We discussed what we should do, what was best and safest for myself and the baby. After all the talking was over, we were faced with the hardest decision of our [[Page S4522]] lives, and we opted to do what we thought was right. We opted to undergo a late-term abortion. Our long awaited, much anticipated baby was not going to make it, and there was nothing we could do to change that.'' Eileen continues: ``What we could do is choose the best way to end our pregnancy and help improve our chances of future pregnancy. I had had cervical cancer.'' She goes into all the problems and all the reasons why she had to make this choice. She said, ``We chose * * * a safe, surgical procedure that protected my health, spared my baby needless suffering and allowed us to hold our child and say our goodbyes. This is the procedure that would be banned by the legislation you are considering today.'' And she says, ``Please leave these difficult medical decisions where they belong--between women, their families and their doctors.'' So I think you have seen, Mr. President, that the women who have undergone these surgeries wanted these children desperately. Their husbands wanted these children desperately. They were religious, they are religious women. Many of them say they do not consider themselves pro-choice. But what we would do with the Santorum legislation is to take away an option that saved their fertility, saved their health, and perhaps even saved their lives. Why on Earth would we do this? I believe the Feinstein-Boxer-Moseley- Braun alternative is the sane way to go, the appropriate way to go. It keeps these decisions where they belong, and yet it says the only time that an abortion in the late term will be allowed would be when the woman's life is in danger or her health is in danger. So I proudly stand with my colleagues, and I urge my colleagues to be strong, to be courageous. I listen to these ads. I read these ads. They are misleading. They use hot button words, and I have to tell you, if you look at this and you look at these women, this, my friends, is the truth. These women stand and tell the truth. Let us stand with them. I thank you, I say to my friend and colleague, and I yield the floor. Mr. SANTORUM addressed the Chair. The PRESIDING OFFICER. The Senator from Pennsylvania. Mr. SANTORUM. Mr. President, I yield myself such time as I may use. Mr. President, there are so many things I would like to say, but let me just start with one at a time, and that is the pictures the Senator from California put up here of women who have been in situations where they were faced with a fetal abnormality and were convinced, unfortunately, by some genetics counselors and others to have an abortion as their option. Let me show you a picture of someone who wasn't convinced by genetics counselors that that was her only option. That is Donna Joy Watts. I talked about her yesterday. She had the same condition as two of the women that Senator Boxer just described--same condition. Her mother had to go to four hospitals to find someone who would not do what the people that Senator Boxer just talked about did, which is terminate the pregnancy, abort the child. She said no. She says, I'm going to let my child live in the fullness of what God has planned for her. I am not going to end her life. I am not going to make the decision to end her life, like any other mother or father would not, if they were faced with a sick child, kill them. Why would you kill your child? Because your child is sick? Because your child might not live long? Why kill your child? Lori Watts and Donny Watts said, no, we are not going to kill our child. We are going to do what we can. We are going to treat her with dignity and respect like any other member of our family. We are going to love her and do everything we can to support her. So they delivered Donna Joy Watts. The doctors would not treat her. They said she was going to die. They would not even feed her for 3 days. You want to talk about all these doctors who are so concerned about saving lives. Then why are we debating physician-assisted suicide if all these doctors are so concerned about saving lives? People who perform abortions are not principally concerned about saving lives. They are worried about malpractice concerns, particularly if you have a difficult pregnancy. They are worried about a whole lot of other things. But I would suggest, unfortunately, there are too many--if there is one, there is too many--doctors out there who--after she was born, doctors were referring to Donna Joy as a fetus laying there alive, breathing--a fetus. So do not tell me, do not tell me that all these caring, compassionate doctors would, of course, do everything to save a child's life. It is not true. God, I wish it were true. And, unfortunately, bad advice is given out by people who either do not know, have not taken the time to understand what options are available, what technology has been developed, or do not care or just are afraid to deal with the problem. Mr. and Mrs. Watts had to go to four hospitals just to find a place to have her delivered. They would not deliver her. They would abort her. They would do a partial-birth abortion. In fact, they offered a partial-birth abortion, but they would not deliver her. So do not bring your pictures up here and claim that is the only choice. This is not a choice. These are little babies. And they are asking us to help them now. This is not Senator Rick Santorum, nonphysician, speaking. Over 400 obstetricians and gynecologists--and by the way, the person who designed this barbaric procedure that we are debating was not an obstetrician. You hear so much about all these experts. He was not an expert. He is a family practitioner who does abortions, and you can only question as to why he spends all his time doing abortions instead of taking care of families. But that is what he does. He does abortions. This is not taught in any medical school. It is not in any peer review literature. It is not done anywhere but abortion places. It is not done in hospitals that deal with high-risk pregnancies. Ask the question. I will ask it. Can you find a place that deals with high-risk pregnancies that has perinatologists at their unit that does partial- birth abortions? The answer is no, zero. No hospitals do this procedure. If this is a procedure that was so important to be kept alive and so important to be an option, then why don't the experts, the people who study high-risk pregnancies, perform this? If this was the best choice--and the Senator from California suggested that in fact would be the only choice in certain cases. Yesterday, she listed five conditions in which this would be the only choice. Now, if you are a perinatologist, someone who deals in late-term pregnancies, and you are not performing this--you are basically telling the perinatologists that they are doing malpractice because they are not doing this procedure. Let me talk to you about one perinatologist who wrote to me. This is Dr. Steve Calvin, assistant professor, Division of Maternal-Fetal Medicine, Department of Obstetrics and Gynecology, University of Minnesota in Minneapolis: As a specialist in Maternal-Fetal Medicine, I practice with the busiest group of perinatologists-- That is obstetricians who work on high-risk pregnancies and deal with these fetal problems-- in the upper midwest. The busiest group of perinatologists in the upper Midwest. I also teach obstetrics to medical students and residents. I know of no instances when the killing of a partially born baby was necessary to accomplish delivery in any of the five medical situations listed by Senator Feinstein. Senator Feinstein claims that partial-birth abortion is necessary to end a pregnancy in the following five situations: Fetal hydrocephaly, fetal arthrogryposis, maternal cardiac problems (including congestive heart failure), maternal kidney disease and severe maternal hypertension. The first two conditions are significant fetal problems. Hydrocephalus-- And that is exactly, by the way, what Donna Joy Watts had-- is an increased amount of cerebrospinal fluid that can cause enlargement of the head and arthrogryposis includes deformities of the fetal limbs and spine. Significant as these abnormalities may be, they do not require the killing of a partially born fetus. Delivery can be accomplished by other means that are safer for the mother-- I repeat, ``safer for the mother''-- and give the fetus at least a chance of survival. And, I might add, apart from this, some dignity, some dignity to one of our children, one of our humankind, in the case of the family, one of their family. [[Page S4523]] The other three conditions are maternal illnesses that may indeed require ending the pregnancy. But, as with the fetal problems, there is no reason that the treatment must include suctioning out the brain of a partially born baby. One of my biggest concerns is that the opponents of this ban are claiming that this destructive procedure is the only method of ending a pregnancy. Abortion supporters have previously acknowledged that surgical mid-trimester and late- term abortions are more dangerous to a woman's health than induction of labor. Let me read this again. Abortion supporters have previously acknowledged that surgical mid-trimester and late-term abortions are more dangerous to a woman's health than induction of labor. Their concern for women's health and safety apparently ends when there is any threat to unrestricted abortion. Signed Steve Calvin, MD. And I will put up this quote from 400 doctors, over 400 doctors, including the former Surgeon General, C. Everett Koop. I suggest these over 400 doctors, many of them members of ACOG, which is American College of Obstetricians and Gynecologists, also are concerned about maternal health. Many of these are perinatologists, people who specialize in high-risk pregnancies. I would think they would be concerned about maternal health. Many of these doctors are pro-choice and they said the following clearly. While it may become necessary, in the second or third trimester, to end a pregnancy in order to protect the mother's life or health, abortion is never required. Now, they did not say it should be an option. They said never. These are experts. Senator Boxer says, well, Rick Santorum should not be in the operating room. I would not want to be in the operating room. I would pass out if I was in the operating room. The fact of the matter is I am not going to be in the operating room. These folks are. This is what they say. ``Never,'' not sometimes, ``never required.'' It is never medically necessary, in order to preserve a woman's life, health or future fertility, to deliberately kill an unborn child in the second or third trimester, and certainly-- Underline certainly-- not by mostly delivering the child before putting him or her to death. This last line is very important. What is required in the circumstances specified by Senator Daschle [Senator Boxer, Senator Feinstein] is separation of the child from the mother, not the death of the child. In other words, there may be cases where you must separate the child from the mother, you must deliver the baby, either by induction and delivery, vaginally or by cesarean section, but in no case, according to a doctor--and I ask if you can produce one perinatologist who would say that it is necessary, absolutely necessary, to kill the child in order to protect the life and the health of the mother, because I have hundreds who say it is not, hundreds from the finest universities and the finest medical schools all over this country who say absolutely, definitively--and the former Surgeon General of the United States, C. Everett Koop--never necessary, never necessary. Now, we also have to talk about all these cases that we are concerned about the mother's health. We make the assumption that abortion is an option to preserve the mother's health or life. I heard that over and over again. It has to be out there in late trimesters, after 20 weeks. Let me share a couple of statistics that shed some light on this. This was referred to by Dr. Calvin. I want to back it up by the statistics. This is from the Alan Guttmacher Institute. Who are they? They signed letters with NARAL and Planned Parenthood and all these other abortion groups, in support of this procedure, in support of every liberalization you can possibly imagine. They are a pro-choice, some would even suggest pro-abortion group. Here is what they say. The risk of death associated with abortion increases with the length of pregnancy, from 1 death in every 600,000 abortions at 8 or fewer weeks to 1 per 17,000 at 16-20 weeks, and [after 20 weeks, when partial-birth abortions are performed, they are considered late-term abortions after 20 weeks] 1 per 6,000 at 21 or more weeks. It is 100 times more likely that a mother will die than if the abortion were performed in the first 8 weeks. It is 100 times more likely. This is what these people are advocating, performing abortions. Let me throw one statistic on top of that. I will show it. I will read it. ``It should be noted that at 21 weeks and after, abortion is twice as risky for women as childbirth: The risk of maternal death is 1 in 6,000 for abortion and 1 in 13,000 for childbirth.'' So, aborting a child through partial-birth abortion, late in term, is statistically more dangerous to the life of the woman than inducing labor. In other words, not only is it preferential for our society not to kill children who should be given a chance at birth, late, when there may be a chance of viability or just when they should have at least some dignity attached to their life, but it is more dangerous to abort than it is to induce labor or to have a cesarean section. It is more dangerous. The folks who say they are protecting a woman's health and life are arguing for procedures that do the exact opposite. Facts: I know we do not like to talk about facts when it comes to abortion. We like to put up pictures of nice families and warm little babies, that somehow or another, this family is better off because of an abortion. The fact is by having an abortion she was twice as likely to die and not be in that picture. That is the fact. We do not want to talk about that. We want to make sure the right of abortion is paramount among all rights. Because that is what this amendment does--nothing. It lets there be abortion on demand, anytime, anywhere, on anybody. That is what this amendment does. It has no restrictions. It is an exception that is not an exception. It is an exception that says that, while we cannot have postviability abortions except for the health of the mother-- let me tell you what Dr. Warren Hern, who wrote the definitive textbook on abortion, called ``Abortion Practice,'' said. Here it is: ``Abortion Practice,'' Warren M. Hern, from Colorado. My understanding is this is sort of the definitive textbook on teaching abortions. He does second- and third- trimester abortions and is very outspoken on this subject. He does not use partial-birth abortion, I might add; does not see it as a recognized procedure. But this is what an abortionist who does late- term abortions--in fact, has people come from all over the world to have abortions done by him--this is what he said about, not the Boxer- Feinstein amendment but the Daschle amendment, which we are going to debate next: I will certify that any pregnancy is a threat to a woman's life and could cause grievous injury to her physical health. In other words, abortion on demand, anytime during pregnancy. And he believes this. Some would say you are relying on the doctor's bad faith--no. He believes this. And he has a right to believe it. If you look at the statistics, I mean, you know, unfortunately some women do die as a result of pregnancy and, therefore, he could say legitimately there is a risk. Any pregnancy is a risk. It may be a small risk, but it is a risk. And all these bills require, that we are going to hear today, is just a risk. Not a big risk, a risk. So what we have are limitations without limits. What we have is a farce, to try to fool all of you, to try to fool the press. It has done a very good job fooling the press. We have wonderful headlines about how we are trying to step forward and do something dramatic on limiting late-term abortions. Phooey, we have a step forward into the realm of political chicanery, of sham, of obfuscation, illusion, that does nothing but protect the politician at the risk of the baby. That is what is going on here. That is what is going on all day. You are going to hear a lot of it. You are going to hear, ``Oh, we need to do this, we need to protect this.'' Here are the facts as pointed out by their side. I am using their facts. The Alan Guttmacher Institute--their numbers. Even when we debate with their information they cannot refute it. The fact of the matter is, there is no reason to do a partial-birth abortion and there is every reason in the world to stop it. It is a dehumanizing procedure. You wonder why we have a society that just is becoming adrift, that does not know right from wrong, that does not have any sense of justice, that does not have--we do not have any compassion for each other? I will give you a good example why that happens. Because on the floor of the U.S. Senate we are debating a procedure where we can kill a [[Page S4524]] little innocent baby that is completely delivered from the mother except for the head. It is moving outside of the mother, a little baby who has done nothing wrong to anybody, and we are saying, ``You don't deserve to live.'' Give people like Donna Joy Watts a fighting chance. It will ennoble us all. We can look to Donna Joy and her family and say there are parents who showed the best, who showed the best in our hearts, who showed the willingness to fight for life, for things that are at the core of who we are as humanity. Let that spirit come back into American culture. Stop this culture of death and self-centeredness and focus in on life and dignity. What about poking scissors in the base of a little baby's skull and suctioning its brains out is dignifying the human being? You would not do that to a dog or an old cat that you wanted to put to sleep. You would not do it to a criminal who has killed 30 or 40 people. And you do it to a little baby who has done nothing wrong and just wants a chance, for however long it may be--and it may not be long--but, for however long, the dignity of life. The Senator from California talks about the long-lasting pain to the family that we would be imposing on them. What is so painful about looking at yourself in the mirror and saying: ``I have done everything I can to help my little girl or my little boy have a chance at life. I gave them every chance. I loved them as much as I possibly could in the time that God gave us.'' What is so painful about that? I will tell you pain. Facing, every day, that you killed your son or daughter for no reason, that is a pain I would not want to live with. Mrs. BOXER. Will the Senator yield to me for a question? Mr. SANTORUM. Not yet. Mrs. BOXER. Let me know. I will be happy to wait until you are ready. Thank you. Mr. SANTORUM. There are great pains out there when you are dealing with a child that is not going to live. It hurts. And it is troubling. But you will find, not only from my experience but from the experience of doctors who deal with this all the time, that treating your son or daughter with dignity, loving them as much as you can for as long as you can--does not make the pain go away. It never goes away. When you lose a child it never, ever goes away. But it helps you live with it. What we are doing today is, hopefully, banning a procedure and explaining to all of those unfortunate people who may be dealing today, right now, with this situation, that there is a better way for everyone. Let us do the better way. Let us do the right thing. Let us do the just thing for everyone. Mr. President, I yield the floor. Several Senators addressed the Chair. The PRESIDING OFFICER (Mr. Roberts). The Senator from Oklahoma is recognized. Mr. INHOFE. Mr. President, let me just make a couple of comments. The PRESIDING OFFICER. Who yields time? Mr. SANTORUM. I yield 10 minutes to the Senator. The PRESIDING OFFICER. The Senator from Pennsylvania has the time. Does the Senator from Pennsylvania yield time to the Senator from Oklahoma? Mr. SANTORUM. I yield 10 minutes to the Senator from Oklahoma. Mr. INHOFE. I thank the Senator from Pennsylvania for yielding time. I think he made one of the best presentations I have heard on the floor of this body. I want to say that, when he deals with the facts, he is dealing with the facts but, you know, we are also dealing today with perceptions. I tried to make a list of those things I have heard over and over. There is a lot of redundancy on this floor but there are some things that have not been stated. I would like to share a couple of those with you. I am going to do something that is a little unusual, because I am going to read some Scriptures to you. It is not totally unprecedented in this body. In fact, the distinguished senior Senator from West Virginia does it quite often. So I would like to read a couple of Scriptures, just for those who care. Anyone who does not, don't listen. First of all, I have used this a number of times, Jeremiah 1:35 says, ``Before I formed you in the womb I knew you; Before you were born I sanctified you.'' Or the 139th Psalm, no matter which interpretation you use, it makes it very clear when life begins. Then, I was, not too long ago, at the U.S. Holocaust Memorial Museum. I had been to the museum in Jerusalem, and I found the same thing was printed on the last brick as you are going through. This is Deuteronomy 30, verse 19. It said: ``I call heaven and earth as witnesses today against you, that I have set before you life and death, blessing and cursing; therefore choose life, that both you and your descendants may live.'' And, last, I am always concerned that something that is as dramatic and is as significant as this issue is going to go unnoticed; that maybe there are Senators out there who are not really into this issue and they might want to vote the party line, or they might want to say, well, maybe there aren't as many of these procedures out there, so they just really are not knowledgeable of the subject. So, I will read Proverbs 24, 11 and 12: Rescue those who are unjustly sentenced to death. Don't stand back and let them die. Don't try to disclaim responsibility by saying you didn't know about it, for God knows. Who knows all hearts knows yours, and He knew that you know. Mr. President, I was listening to the Senator from Massachusetts who said it does not do any good if we pass this because the President is going to veto it anyway. But I suggest to you that the President may not veto it, and if he does veto it, maybe some people will come over who were not here a year ago on this side of the aisle. Ron Fitzsimmons who just last year insisted that the number of partial birth abortions were a relative handful now admits ``I lied through my teeth.'' He was lying. So if the President is predicating his decision to veto this ban on the basis of what was told to him by Ron Fitzsimmons, there is every reason he could turn around on the issue. I suggest also that we are talking now not just about a procedure, but a culture. I have a very good friend by the name of Charles W. Colson who gave these remarks upon winning the prestigious Templeton Prize for contribution to religion. Listen very carefully. He puts it all together, not isolating one procedure or one issue: Courts strike down even perfunctory prayers, and we are surprised that schools, bristling with barbed wire, look more like prisons than prisons do. Universities reject the very idea of truth, and we are shocked when their best and brightest loot and betray. Celebrities mock the traditional family, even revile it as a form of slavery, and we are appalled at the tragedy of broken homes and millions of unwed mothers. The media celebrate sex without responsibility, and we are horrified by plagues. Our lawmakers justify the taking of innocent lives in sterile clinics, and we are terrorized by the disregard for life in blood-soaked streets. I think that kind of puts it into a context, which we are now approaching, that this is not just a normal type of an abortion. I have a great deal of respect for one of the most intellectual Members of this body. It is Senator Patrick Moynihan from New York, who is a self-proclaimed pro-choice Senator. He said: And now we have testimony that it is not just too close to infanticide, it is infanticide, and one would be too many. This is where we get into the numbers game. I heard it said on this floor many times that we are talking about maybe 1 percent or maybe talking about those that are in the ninth month may be an infinitesimal number. But, in fact, one is too many. It was said on the floor that we may be only talking about 200 lives being taken during the normal delivery process. That is when a baby is given a natural birth and, yet, they take the life by using this barbaric procedure. We have all kinds of documentation that i

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PARTIAL-BIRTH ABORTION BAN ACT OF 1997
(Senate - May 15, 1997)

Text of this article available as: TXT PDF [Pages S4517-S4575] PARTIAL-BIRTH ABORTION BAN ACT OF 1997 The PRESIDING OFFICER. Under the previous order, the Senate will now proceed to H.R. 1122, which the clerk will report. The legislative clerk read as follows: A bill (H.R. 1122) to amend title 18, United States Code, to ban partial-birth abortions. The Senate resumed consideration of the bill. The PRESIDING OFFICER (Mr. Inhofe). Under the previous order, the Senator from California is recognized to call up an amendment. Mrs. FEINSTEIN. Thank you, Mr. President. Amendment No. 288 (Purpose: To prohibit certain abortions) Mrs. FEINSTEIN. Mr. President, I would like to begin this debate by sending an amendment to the desk. This amendment is sent on behalf of myself, Senator Boxer, and Senator Moseley-Braun. The PRESIDING OFFICER. The clerk will report the amendment. The assistant legislative clerk read as follows: The Senator from California [Mrs. Feinstein], for herself, Mrs. Boxer, and Ms. Moseley-Braun proposes an amendment numbered 288. Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Strike all after the enacting clause and insert the following: SECTION 1. SHORT TITLE. This Act may be cited as the ``Post-Viability Abortion Restriction Act''. SEC. 2. PROHIBITION ON CERTAIN ABORTIONS. (a) In General.--It shall be unlawful, in or affecting interstate or foreign commerce, for [[Page S4518]] a physician knowingly to perform an abortion after the fetus has become viable. (b) Exception.--Subsection (a) does not apply if, in the medical judgment of the attending physician, the abortion is necessary to preserve the life of the woman or to avert serious adverse health consequences to the woman. SEC. 3. CIVIL PENALTIES. (a) Action by Attorney General.--The Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General or United States Attorney specifically designated by the Attorney General (referred to in this Act as the ``appropriate official''), may commence a civil action under this subsection in any appropriate United States district court to enforce the provisions of this Act. (b) Relief.-- (1) First violation.--In an action commenced under subsection (a), if the court finds that the respondent in the action has violated a provision of this Act, the court shall assess a civil penalty against the respondent in an amount not exceeding $100,000, and refer the case to the State medical licensing authority for consideration of suspension of the respondent's medical license. (2) Second violation.--If a respondent in an action commenced under subsection (a) has been found to have violated a provision of this Act on a prior occasion, the court shall assess a civil penalty against the respondent in an amount not exceeding $250,000, and refer the case to the State medical licensing authority for consideration of revocation of the respondent's medical license. (c) Certification Requirements.-- (1) In general.--At the time of the commencement of an action under subsection (a), the appropriate official shall certify to the court involved that the appropriate official-- (A) has provided notification in writing of the alleged violation of this Act, at least 30 calendar days prior to the filing of such action, to the attorney general or chief legal officer of the appropriate State or political subdivision; and (B) believes that such an action by the United States is in the public interest and necessary to secure substantial justice. (2) Limitation.--No woman who has had an abortion after fetal viability may be penalized under this Act for a conspiracy to violate this section or for an offense under section 2, 3, 4, or 1512 of title 18, United States Code. SEC. 4. REGULATIONS AND PROCEDURES. (a) In General.--Not later than 60 days after the date of enactment of this Act, the Secretary of Health and Human Services shall establish regulations-- (1) requiring an attending physician described in section 2(b) to certify that, in the best medical judgment of the physician, the abortion described in section 2(b) was medically necessary to preserve the life or to avert serious adverse health consequences to the woman involved, and to describe the medical indications supporting the judgment; and (2) to ensure the confidentiality of all information submitted pursuant to a certification by a physician under paragraph (1). (b) State Regulations and Procedures.--The regulations described in subsection (a) shall not apply in a State that has established regulations described in subsection (a). SEC. 5. RULE OF CONSTRUCTION. Nothing in this Act shall be construed to prohibit State or local governments from regulating, restricting, or prohibiting post-viability abortions to the extent permitted by the Constitution of the United States. Mrs. FEINSTEIN. Mr. President, I rise to offer a substitute amendment to H.R. 1122, which, as I said, is cosponsored by Senators Boxer and Moseley-Braun. The amendment we offer is presented as an alternative to the House-passed bill on so-called partial-birth abortions and as an alternative to the Daschle substitute as well. My colleagues and I offer this amendment for one reason: We very much believe that any legislation put forward by Congress that restricts access to abortions or to a particular medical procedure must be constitutional and must contain sufficient protections for a woman's health. The Feinstein-Boxer-Moseley-Braun bill provides that protection while instituting a ban on post-viability abortions similar to that in the Daschle bill. Our bill does three things. First, it prohibits all abortions after a fetus has become viable or able to live independently outside of the mother's womb. Second, it provides an exception for cases where, in the medical judgment of a physician, an abortion is necessary to preserve the life of the mother or to prevent serious adverse health consequences to the mother. And third, it provides stringent civil penalties for physicians performing post-viability abortions in the absence of compelling medical reasons. The penalties are limited to the physician and include for the first offense a fine of $100,000, and referral to a State licensing board for possible suspension of the medical license. For the second offense, the fine would be up to $250,000, with referral to the State licensing board for possible revocation of license. There is no health exception in H.R. 1122, known as the Santorum bill. And we do not believe that the health exception provided in the Daschle bill is sufficient, nor do we believe that it will meet the constitutional test. Let me begin by speaking of my opposition to the House bill. And let me begin by pleading with anyone listening to this debate to read the bill--read H.R. 1122. It is short. It is easy to read. I want to quote from page 2 of that bill to illustrate what this bill does. Let me begin on line 9: 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 two years, or both. The bill refers to a ``partial-birth abortion,'' which is a term not existing in medical literature or medical texts. So let us find out what a partial-birth abortion is. And we turn to line 19 of page 2 for that description: As used in this section, the term ``partial-birth abortion'' means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery. The issue here is clear. We heard yesterday on this floor a vivid description of a procedure, a procedure known as ``intact D'' Nowhere in House Resolution 1122 are ``intact D'' or ``intact D'' or any medical procedure referred to. Instead, we have a term not existent in medical science anywhere called ``partial-birth abortion.'' Now, anyone who is familiar with a woman's physiology knows that this term can be used to deny second-trimester and third-trimester abortions--virtually, I believe, all of them. If the concern of the authors of this legislation were truly in fact to prohibit or ban one specific procedure, why would they not spell out what the procedure is in legislative language just as they have graphically spelled out the procedure on the Senate floor? Why? Why not do that? I believe there is a reason why they did not do that. And the reason is, that I sincerely believe that this bill is meant to do much more, much more than simply ban a procedure known as intact D or intact D I believe that this bill is essentially a Trojan horse, a Trojan horse in the sense that it is not at all what it seems to be on the outside. If you look on the inside, which means opening the page of the bill, you will see that this bill is the first major legislative thrust to make abortion in the United States of America illegal. I stated yesterday on the floor that we are really a product of our live's experiences. And my life's experiences that have caused me to be essentially pro-choice are essentially threefold. The first, my days in college at Stanford University, days when I remember a bright young woman who committed suicide because she was pregnant and abortion was illegal in the United States. And I also remember the passing of a plate in a college dormitory so that another friend could go to Mexico for an abortion. I remember that well. My second life experience was in the early 1960's at the California Institution for Women, the women's prison in California for women convicted of felonies, where I set sentences and granted paroles to women convicted of providing abortions. I remember this well because the only way a case really came to the attention of the authorities was either through the morbidity or the mortality of the patient. And I remember the graphic stories in those cumulative summaries that were given to us prior to term setting, of what happened to women who were victims of illegal abortions. And I remember that the women who provided the abortions would leave and come back and commit the same crime again because of the importunings of other women. And the third graphic experience for me was becoming a grandmother and finding out that my daughter in her pregnancy had an unexpected, very serious, potentially life-threatening problem, and realizing how surprised I was not to know that this could happen in this day and age. But it did happen. [[Page S4519]] My story--my daughter's story--came out fine because today I have a bright-eyed and bushy-tailed and wonderful, light of my life, in the form of a 4\1/2\-year-old granddaughter by the name of Eileen. But I learned that there can be unpredictable occurrences, and that when we legislate--in a piece of paper that becomes an abiding law enforced everywhere throughout the United States of America--we ought to legislate with the knowledge that human life and human experience has many permutations that are unexpected and unanticipated. I view H.R. 1122 as doing much, much more than banning a simple procedure. That procedure is not mentioned anywhere in this piece of legislation. But it does set up the basis for lawsuit after lawsuit against any physician that might practice and might perform a second- trimester abortion. Every other type of abortion in some way has the head of the fetus coming through the birth canal. And then the case is, at what point is that fetus still living or not living? And so I think it is a potentially very dangerous piece of legislation in that regard. I mentioned yesterday that I basically do not believe that intact D or intact D should be used, that there are other forms of abortion. That is my personal belief. And I believe that the AMA is on its way in a medical venue of taking some steps to limit it. We all know we are talking about less than 1 percent of all of the abortions that take place in this country, in any event. So the question is, what do we do? What kind of legislation do we present that recognizes the exigencies, the human trials, the difficulties that a woman can have? Yesterday, I mentioned a young nurse; her name is Viki Wilson. When I was a county supervisor and mayor, I worked with her mother, Susan Wilson, who was a supervisor from Santa Clara County. Viki Wilson is a nurse, married to a doctor. In her 36th week she had a sonogram and she found out she had a severely deformed baby with its brain outside its skull. She learned that the contractions she was having were actually seizures that the child was having and that the child was incompatible of sustaining life outside of the womb. She went to a doctor and her doctor recommended the particular procedure that is under siege here today, as the procedure, at that stage of her pregnancy, that would be most protective of her health. I cannot tell you whether it was or not. I am not a physician. There is only one physician in this body who might know. Yet, we are going to legislate, in a bill that is drafted to be so broad, that it can impact much more than one procedure. The amendment that the three of us present to this body today, we believe, comports with Roe versus Wade. We believe it would not put in jeopardy every second- and third-trimester abortion. We believe it would prohibit every third-trimester abortion unless the life and the health, as defined by serious adverse health consequences to the mother, were at risk, and that this decision would be made by the physician and the woman, which I think is the appropriate remedy for this issue. I think this is a very difficult debate because most people have not read the bill before the Senate, H.R. 1122. Most people really do not understand the whole panoply of human ills that can take place in a pregnancy. I believe the AMA, in the recent paper they have put forward, very clearly indicates they believe that, with few exceptions, this procedure that is at question should not be used. However, they are not--and I think rightly so--not ready to sacrifice the integrity of the medical profession to say that no doctor, no matter what the situation is, no matter what the physiology of the woman may be, no matter that she may not be able to have another procedure, that she might be adversely impacted healthwise, cannot, no matter what the situation is, have this procedure as a remedy. Mr. President, we present to you a bill that we believe is constitutional, a bill that would ban all third-trimester abortions, unless the life and health of the woman, as defined as serious adverse health consequences, were threatened. The bill includes very strong civil penalties, which we believe would be a substantial deterrent to the performance of any third-trimester abortions unless there is a very serious medical need. Mr. President, I notice my distinguished colleague, and I ask the Senator from Massachusetts how much time he desires. Mr. KENNEDY. I would like 10 minutes, and I appreciate the courtesy, but I expect, Mr. President, that we are perhaps alternating back and forth. I see Senator DeWine, as well as Senator Santorum. Mr. SANTORUM. I will do a unanimous-consent request and then be happy to let the Senator from Massachusetts speak. Mrs. FEINSTEIN. I yield the floor. Privilege of the Floor Mr. SANTORUM. Mr. President, I ask unanimous consent that Steven Schlesinger, a detailee on the Judiciary Committee, and Michelle Kitchen, a member of my staff, be permitted privileges of the floor for the duration of the debate. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Massachusetts. Mr. KENNEDY. Mr. President, it is unfortunate that the Republican leadership has chosen to force this debate on the same confrontational and unconstitutional legislation that President Clinton vetoed last year, when reasonable and constitutional alternatives are so obviously available. It is clear that the primary purpose of the Republican leaders is not to regulate late-term abortions, but to roll back the protections for women guaranteed by the Supreme Court. If the goal is to pass effective legislation, the sponsors of the Santorum bill know they must meet the constitutional requirments for protecting of a woman's right to choose. President Clinton has made clear that he cannot and will not accept a ban on any procedure that represents the best hope for a woman to avoid serious risks to her health. The bill vetoed last year and the bill before us today are identical, and they clearly fail to provide these needed protections for women. The Supreme Court rulings in the Roe and Casey decisions prohibit Congress and the States from imposing an ``undue burden'' on a woman's right to choose to have an abortion at any time up to the point where the developing fetus reaches the stage of viability. Governments can constitutionally limit abortions after the stage of viability, as long as the limitations contain exceptions to protect the life and the health of the woman. This bill flunks that clear constitutional test in two ways. It imposes an undue burden--a flat prohibition--on a woman's constitutional right to an abortion before fetal viability. And it impermissibly limits the right to an abortion after fetal viability, by excluding any protection whatsoever for the woman's health. Given the clear constitutional problems with this bill, it is fair to ask, why do Republicans insist that we send it to the President, for another certain veto, when reasonable alternatives are available. In fact, there is little need for any Federal legislation in this area because 41 States already ban late-term abortions. Massachusetts has prohibited these abortions except when the woman's life is in danger or ``the continuation of the pregnancy would impose a substantial risk of grave impairment to the woman's physical or mental health.'' Many other States have similar restrictions. There is no evidence that the States are not enforcing their laws. Supporters of the Republican bill also claim that the public and Congress were misled about the actual number of abortions performed by the procedure that would be banned by their bill. But very few, if any, of us in the last Congress were misled about the facts. Only a few hundred of these procedures are performed after viability, and they are performed in cases where the fetus cannot survive because of a severe medical abnormality, or where there is a serious threat to the life or the health of the woman. It was clearly reported during last year's debate that the procedure was also used before the stage of viability, and that the number of such cases was larger, probably amounting to several thousand a year. But all of us were also [[Page S4520]] aware that Congress cannot constitutionally ban the procedure at that stage. We know that some doctors begin to use the particular procedure that would be banned by the Republican bill at about 20 weeks of gestation, which is well before the time when a fetus has the capacity for survival outside the womb. Most authorities place the time of viability at 24 to 26 weeks in a normal pregnancy. According to the best available statistics, 99 percent of all abortions are performed before 20 weeks. Only about 1 percent of all abortions are performed after that time, and two-thirds of those abortions are performed before the 23d week. This information is provided by the Alan Guttmacher Institute and used by the National Center for Health Statistics. It is the most accurate information available. Even so, it is difficult to draw a sharp dividing line on the viability of a particular pregnancy. A great deal depends on the prenatel care the woman is receiving. Low-birth weight babies reach viability at later stages of pregnancy. A further problem is that viability is to some extent a statistical concept. At 21 weeks of a normal pregnancy, few if any fetuses can survive. At 23 weeks about 25 percent survive. At 26 weeks about 50 percent survive. A physician's decision relies on best medical judgment, but it is hardly precise for a particular case. The real issue involves lives and the health of women. The so-called partial-birth abortion bill would not stop a single abortion. Instead, it would force women to use another, possibly more dangerous procedure if they must terminate their pregnancy to preserve their health. Of course, the sponsors of this bill continue to argue that there are no circumstances in which a procedure banned by the bill is necessary to preserve a woman's health. And, even worse, some supporters don't seem to care. Mark Crutcher, president of Life Dynamics, an antiabortion organization based in Denton TX, told the Detroit Free Press that the bill is ``a scam being perpetrated by people on our side of the issue * * * for fund-raising purposes.'' It doesn't seem to matter to the proponents of this defective Republican bill that women like Maureen Britell, Eileen Sullivan, Coreen Costello, Erica Fox, Vikki Stella, Tammy Watts, Viki Wilson, and others will be forced to risk serious health consequences if this bill becomes law. Doctor after doctor has told us that this procedure may be necessary to preserve a woman's health. The American College of Obstetricians and Gynecologists has said: An intact D may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision. The intervention of legislative bodies into medical decisionmaking is inappropriate, ill- advised, and dangerous. Perhaps if the Republican men in Congress were the ones to get pregnant, they would show more compassion for the women who find themselves in these tragic circumstances. Take the case of Coreen Costello. After consulting numerous medical experts and doing everything possible to save her child, Coreen had the procedure that would be banned by this legislation. Based on that experience, she gave the following testimony to the Senate Judiciary Committee last year: I hope you can put aside your political differences, your positions on abortion, and your party affiliations and just try to remember us. We are the ones who know. We are the families that ache to hold our babies, to love them, to nurture them. We are the families who will forever have a hole in our hearts. We are the families that had to choose how our babies would die * * * please put a stop to this terrible bill. Families like mine are counting on you. I oppose this legislation. Instead, I stand with Coreen Costello and others whose lives and health must be protected. The alternative proposed by Senator Snowe and Senator Daschle provides that protection, and so does the alternative proposed by Senator Feinstein, Senator Boxer and Senator Moseley-Braun. I intend to vote for these alternatives, because they respect the Constitution, and above all they respect the right of women and their doctors to make these difficult and tragic decisions. The PRESIDING OFFICER. The Senator from California. Mrs. FEINSTEIN. How much time is the Senator requesting? Mrs. BOXER. I ask for 15 minutes. Mrs. FEINSTEIN. Mr. President, I am happy to yield 15 minutes to the Senator from California. The PRESIDING OFFICER. The Senator from California. Mrs. BOXER. Mr. President, let me say how proud I am to stand with my colleague, my senior Senator from California, Senator Feinstein, and the senior Senator from Illinois, Senator Carol Moseley-Braun, who has just arrived on the floor, to speak in favor of the bill which really addresses an issue that the American people want addressed. It does so in a way that is constitutional. It does so in a way that is respectful of women and their families. When we approach this issue, we have very strong feelings in the approach that is taken, in a sensitive way. It is harmful legislation. It will harm women, will hurt women, will lead to women dying, will lead to women suffering infertility, suffering paralysis, and all needlessly. So what we have done in this legislation, which I am very proud of, is to basically codify Roe versus Wade. In other words, we support a woman's right to choose with the understanding that after viability, when the fetus can live outside the womb with or without life support, we want to be very careful that there should be no abortion at all unless the woman's life is threatened, or her health is threatened, and in those cases where a doctor so determines and the woman's family so agrees, that that woman will be able to terminate that pregnancy in a way that protects her life and her health. What we are attempting to do in the course of this debate is to put a woman's face back on this issue because, when you listen to the other side, the woman is completely forgotten. As I said yesterday, the day we pass legislation that harms more than half of our population is the day that I wonder what we are doing as a country. I hope that the other side on this issue would join hands with us and get this passed. We know the President would sign this bill. Then we can tell the American people together that the only cases of late-term abortion in this Nation that would be allowed is when the woman faces a life-threatening situation, if the pregnancy continues, or one that is so serious that action must be taken to terminate the pregnancy. Senator Santorum would outlaw a particular procedure and not allow it be used except in the most narrow circumstance. I want to tell you what some doctors have said about this procedure that Senator Santorum would ban. The American College of Obstetricians and Gynecologists is an organization representing 37,000 physicians. As I have said in the past, I know those of us who come to the U.S. Senate are pretty strong people who believe in our views, who believe in ourselves, but we ought to leave our egos at the door when it comes to protecting lives. When it comes to medical emergencies, we do not have the capability of deciding what procedure ought to be used in a hospital room. If you were to ask your constituents, I don't care what party, or whether they are Independent, Republican, Democratic, or whatever party they are for, who would you rather have in the emergency room with you, Senator Santorum, Senator Boxer, or the family doctor who is trained, who understands the issue? I think they would say, ``I don't want any politicians in the hospital room with me. I want the best physician that I can find for my wife or for my daughter or for my niece. And I want that doctor to have the full range of options,'' knowing that there will never be an abortion in the late term unless the life or health of the mother is at stake. That is a pretty moderate course, it seems to me, a pretty reasonable course. And that is the course of the Feinstein-Boxer-Moseley-Braun bill. Let me repeat, under our bill, there will be no late-term abortion, no post-viability abortion unless the doctor determines that to protect the woman's life and health he or she must terminate the pregnancy. [[Page S4521]] Senator Feinstein talked about Viki Wilson. I have her picture up here behind me with her loving family. And I think it is worth repeating the story. In her 36th week of the pregnancy, the nursery was ready, the family was anticipating the arrival of their new family member. Viki's doctor ordered an ultrasound which detected something that all of her prenatal testing had failed to detect. As Senator Feinstein told you, two-thirds of her daughter's brain had formed outside the skull, and the doctors feared that Viki's uterus would rupture in the birthing process leaving Viki sterile. After consulting with other physicians, with their clergy, with their God, in order to preserve Viki's fertility, they made the painful choice to have this procedure that would be outlawed under the Santorum bill. Now you see Viki, who has protected her fertility, a decision made with her doctor and her God. This procedure would be outlawed by the Santorum bill. The 37,000 gynecologists and obstetricians stated that this procedure that would be outlawed under the Santorum bill ``may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances, can make this decision. . .'' Today I received an additional letter that I want to share with my colleagues from David Grimes, a physician in San Francisco, CA. He tells the story--that he had never used this procedure that Senator Santorum wants to outlaw. But he talks about it this way, and the time that he did use it recently. He says: A woman in the Bay Area became seriously ill with preeclampsia (which is toxemia of pregnancy) at 24 weeks' gestation. She had a dangerous and extreme form of disease, called HELLP syndrome . . . she had liver failure and abnormal blood-clotting ability. The pregnancy had to be terminated to save her life. During several days spent unsuccessfully in attempts to induce labor, her medical condition continued to deteriorate. Finally, in desperation, the attending physician called me to assist . . . He said he accomplished the procedure in a manner of minutes with very little blood loss. She recovered quickly thereafter, and her physician discharged her home in good condition after a few weeks. He said: . . . I received a lovely thank you note from her husband. You know, this isn't only about women. It is about their loving husbands and their loving fathers. He ``received a . . . note from her husband thanking me for saving his wife's life.'' And the doctor said: In this instance, an intact D was the fastest and safest option available to me and to the patient. Congress must not take this option away. So, yet--and I have many other letters from physicians--that is exactly what this Congress is set to do. With the exception of 1 physician, who I don't believe is an OB-GYN, we have 99 people in here who do not know a whit about being an obstetrician or gynecologist. They don't have any training, at least that I know of. I find it the height of--I don't even know the right word to use--the ``height of ego,'' I guess, to think that we would know more than a physician, we would pass legislation that would take an option away from a physician. I can't believe that we would be doing this. I can tell you, I just had a community meeting in California. Maybe I knew 2 people out of 700 people that came out to the community meeting. The floor was open. It was their meeting. And not one of them stood up in that meeting and said, ``Senator Boxer, you ought to go there and outlaw medical procedures.'' What they told me is go back there and get that budget balanced, educate our children, and preserve our freedoms. So I have to say this is now the third time we have taken up this debate. It is the third time. It is painful. It is difficult. The reason I find it so painful is because in the name of saving pain, this Congress is going to vote for a bill that is going to cause families pain, and not just momentary pain, but long-lasting pain, because when a woman loses her fertility it is long-lasting pain, or if a woman gets paralyzed it is long-lasting pain. I want to talk to you about a couple of other women: Maureen Britell, a 30-year-old, Irish-Catholic mother of two, who lives in Massachusetts. On February 17, Maureen and her husband were awaiting--this is in 1994--joyously awaiting the birth of their second child. On that date, when she was 5 months pregnant, a sonogram determined that her daughter had no brain and could not live outside the womb. Her doctor recommended termination of the pregnancy. The next day a third-degree sonogram at the New England Medical Center in Boston confirmed the diagnosis that the baby had no brain and was not viable. Maureen and her family sought counsel from their parish priest, Father Greg, who supported the decision to terminate the pregnancy. Let me repeat that. Maureen and her family sought counsel from their parish priest, Father Greg, who supported the decision to terminate the pregnancy. They named their daughter Dahlia. She had a Catholic funeral, and was buried at Otis Air Force Base in Cape Cod. So Senators are going to interfere with the decision made by a family, its doctor, and their God. And by the passage of the Santorum legislation, if in fact it is going to pass, which indications are it will, that is just what we are doing--the height of ego. ``We know better than a doctor. We know better than a priest. We know better than a rabbi. We are going to be in the hospital room. We are going to say what medical procedures can't be performed.'' What is the next one? There are no pretty medical procedures, period. What is the next one that we are going to stand up here and outlaw? I want you to meet Eileen Sullivan. Eileen Sullivan, with 10 brothers and sisters, runs a nursery school in southern California. And she is an Irish-Catholic woman. Eileen writes, ``For as long as I can remember, being in the company of children was when I was happiest. So when my husband and I watched the home pregnancy test slowly show a positive result, we were ecstatic. After three years of trying to conceive a baby, I didn't believe it. So I kept checking the test against the diagram on the package. Sure enough, we had done it. We were going to have a baby.'' Eileen continues: My long awaited pregnancy was easy and blissful. As I charted my baby's growth week by week, the bond grew stronger between us. Many nights I spoke to my baby, saying that I accepted it just as it was, boy or girl, with dark eyes like mine or blue like my husband's. I didn't care--I was just so happy that we would finally be parents. At 26 weeks, Eileen went to her obstetrician for a routine ultrasound. After a few moments, her doctor got quiet and began to focus intently on the monitor. The doctor confirmed that there was a problem and sent Eileen and her husband to have tests immediately. The Sullivans went to a genetic specialist for another ultrasound. The doctor concluded that among other things: the baby's brain was improperly formed and being pressured by a back-up of fluid. His head was enlarged, his heart was malformed, his liver was malfunctioning, and there was a dangerously low amount of amniotic fluid. According to Eileen, for 2 hours the specialist detailed the baby's anomalies. Eileen writes, ``My husband and I held one another and tried to understand what was happening. This was a nightmare. We spoke to a genetics counselor and had a battery of additional tests including an amniocentesis and a placenta biopsy.'' She continues: ``When the tests came back, the prognosis was the same--the anomalies were incompatible with life.'' ``Not wanting to accept this,'' she writes, ``we went to another specialist--a pediatric cardiologist. His prognosis was no better. According to the cardiologist, our baby's heart condition was lethal and he would not live.'' She continues: ``We wept. We discussed what we should do, what was best and safest for myself and the baby. After all the talking was over, we were faced with the hardest decision of our [[Page S4522]] lives, and we opted to do what we thought was right. We opted to undergo a late-term abortion. Our long awaited, much anticipated baby was not going to make it, and there was nothing we could do to change that.'' Eileen continues: ``What we could do is choose the best way to end our pregnancy and help improve our chances of future pregnancy. I had had cervical cancer.'' She goes into all the problems and all the reasons why she had to make this choice. She said, ``We chose * * * a safe, surgical procedure that protected my health, spared my baby needless suffering and allowed us to hold our child and say our goodbyes. This is the procedure that would be banned by the legislation you are considering today.'' And she says, ``Please leave these difficult medical decisions where they belong--between women, their families and their doctors.'' So I think you have seen, Mr. President, that the women who have undergone these surgeries wanted these children desperately. Their husbands wanted these children desperately. They were religious, they are religious women. Many of them say they do not consider themselves pro-choice. But what we would do with the Santorum legislation is to take away an option that saved their fertility, saved their health, and perhaps even saved their lives. Why on Earth would we do this? I believe the Feinstein-Boxer-Moseley- Braun alternative is the sane way to go, the appropriate way to go. It keeps these decisions where they belong, and yet it says the only time that an abortion in the late term will be allowed would be when the woman's life is in danger or her health is in danger. So I proudly stand with my colleagues, and I urge my colleagues to be strong, to be courageous. I listen to these ads. I read these ads. They are misleading. They use hot button words, and I have to tell you, if you look at this and you look at these women, this, my friends, is the truth. These women stand and tell the truth. Let us stand with them. I thank you, I say to my friend and colleague, and I yield the floor. Mr. SANTORUM addressed the Chair. The PRESIDING OFFICER. The Senator from Pennsylvania. Mr. SANTORUM. Mr. President, I yield myself such time as I may use. Mr. President, there are so many things I would like to say, but let me just start with one at a time, and that is the pictures the Senator from California put up here of women who have been in situations where they were faced with a fetal abnormality and were convinced, unfortunately, by some genetics counselors and others to have an abortion as their option. Let me show you a picture of someone who wasn't convinced by genetics counselors that that was her only option. That is Donna Joy Watts. I talked about her yesterday. She had the same condition as two of the women that Senator Boxer just described--same condition. Her mother had to go to four hospitals to find someone who would not do what the people that Senator Boxer just talked about did, which is terminate the pregnancy, abort the child. She said no. She says, I'm going to let my child live in the fullness of what God has planned for her. I am not going to end her life. I am not going to make the decision to end her life, like any other mother or father would not, if they were faced with a sick child, kill them. Why would you kill your child? Because your child is sick? Because your child might not live long? Why kill your child? Lori Watts and Donny Watts said, no, we are not going to kill our child. We are going to do what we can. We are going to treat her with dignity and respect like any other member of our family. We are going to love her and do everything we can to support her. So they delivered Donna Joy Watts. The doctors would not treat her. They said she was going to die. They would not even feed her for 3 days. You want to talk about all these doctors who are so concerned about saving lives. Then why are we debating physician-assisted suicide if all these doctors are so concerned about saving lives? People who perform abortions are not principally concerned about saving lives. They are worried about malpractice concerns, particularly if you have a difficult pregnancy. They are worried about a whole lot of other things. But I would suggest, unfortunately, there are too many--if there is one, there is too many--doctors out there who--after she was born, doctors were referring to Donna Joy as a fetus laying there alive, breathing--a fetus. So do not tell me, do not tell me that all these caring, compassionate doctors would, of course, do everything to save a child's life. It is not true. God, I wish it were true. And, unfortunately, bad advice is given out by people who either do not know, have not taken the time to understand what options are available, what technology has been developed, or do not care or just are afraid to deal with the problem. Mr. and Mrs. Watts had to go to four hospitals just to find a place to have her delivered. They would not deliver her. They would abort her. They would do a partial-birth abortion. In fact, they offered a partial-birth abortion, but they would not deliver her. So do not bring your pictures up here and claim that is the only choice. This is not a choice. These are little babies. And they are asking us to help them now. This is not Senator Rick Santorum, nonphysician, speaking. Over 400 obstetricians and gynecologists--and by the way, the person who designed this barbaric procedure that we are debating was not an obstetrician. You hear so much about all these experts. He was not an expert. He is a family practitioner who does abortions, and you can only question as to why he spends all his time doing abortions instead of taking care of families. But that is what he does. He does abortions. This is not taught in any medical school. It is not in any peer review literature. It is not done anywhere but abortion places. It is not done in hospitals that deal with high-risk pregnancies. Ask the question. I will ask it. Can you find a place that deals with high-risk pregnancies that has perinatologists at their unit that does partial- birth abortions? The answer is no, zero. No hospitals do this procedure. If this is a procedure that was so important to be kept alive and so important to be an option, then why don't the experts, the people who study high-risk pregnancies, perform this? If this was the best choice--and the Senator from California suggested that in fact would be the only choice in certain cases. Yesterday, she listed five conditions in which this would be the only choice. Now, if you are a perinatologist, someone who deals in late-term pregnancies, and you are not performing this--you are basically telling the perinatologists that they are doing malpractice because they are not doing this procedure. Let me talk to you about one perinatologist who wrote to me. This is Dr. Steve Calvin, assistant professor, Division of Maternal-Fetal Medicine, Department of Obstetrics and Gynecology, University of Minnesota in Minneapolis: As a specialist in Maternal-Fetal Medicine, I practice with the busiest group of perinatologists-- That is obstetricians who work on high-risk pregnancies and deal with these fetal problems-- in the upper midwest. The busiest group of perinatologists in the upper Midwest. I also teach obstetrics to medical students and residents. I know of no instances when the killing of a partially born baby was necessary to accomplish delivery in any of the five medical situations listed by Senator Feinstein. Senator Feinstein claims that partial-birth abortion is necessary to end a pregnancy in the following five situations: Fetal hydrocephaly, fetal arthrogryposis, maternal cardiac problems (including congestive heart failure), maternal kidney disease and severe maternal hypertension. The first two conditions are significant fetal problems. Hydrocephalus-- And that is exactly, by the way, what Donna Joy Watts had-- is an increased amount of cerebrospinal fluid that can cause enlargement of the head and arthrogryposis includes deformities of the fetal limbs and spine. Significant as these abnormalities may be, they do not require the killing of a partially born fetus. Delivery can be accomplished by other means that are safer for the mother-- I repeat, ``safer for the mother''-- and give the fetus at least a chance of survival. And, I might add, apart from this, some dignity, some dignity to one of our children, one of our humankind, in the case of the family, one of their family. [[Page S4523]] The other three conditions are maternal illnesses that may indeed require ending the pregnancy. But, as with the fetal problems, there is no reason that the treatment must include suctioning out the brain of a partially born baby. One of my biggest concerns is that the opponents of this ban are claiming that this destructive procedure is the only method of ending a pregnancy. Abortion supporters have previously acknowledged that surgical mid-trimester and late- term abortions are more dangerous to a woman's health than induction of labor. Let me read this again. Abortion supporters have previously acknowledged that surgical mid-trimester and late-term abortions are more dangerous to a woman's health than induction of labor. Their concern for women's health and safety apparently ends when there is any threat to unrestricted abortion. Signed Steve Calvin, MD. And I will put up this quote from 400 doctors, over 400 doctors, including the former Surgeon General, C. Everett Koop. I suggest these over 400 doctors, many of them members of ACOG, which is American College of Obstetricians and Gynecologists, also are concerned about maternal health. Many of these are perinatologists, people who specialize in high-risk pregnancies. I would think they would be concerned about maternal health. Many of these doctors are pro-choice and they said the following clearly. While it may become necessary, in the second or third trimester, to end a pregnancy in order to protect the mother's life or health, abortion is never required. Now, they did not say it should be an option. They said never. These are experts. Senator Boxer says, well, Rick Santorum should not be in the operating room. I would not want to be in the operating room. I would pass out if I was in the operating room. The fact of the matter is I am not going to be in the operating room. These folks are. This is what they say. ``Never,'' not sometimes, ``never required.'' It is never medically necessary, in order to preserve a woman's life, health or future fertility, to deliberately kill an unborn child in the second or third trimester, and certainly-- Underline certainly-- not by mostly delivering the child before putting him or her to death. This last line is very important. What is required in the circumstances specified by Senator Daschle [Senator Boxer, Senator Feinstein] is separation of the child from the mother, not the death of the child. In other words, there may be cases where you must separate the child from the mother, you must deliver the baby, either by induction and delivery, vaginally or by cesarean section, but in no case, according to a doctor--and I ask if you can produce one perinatologist who would say that it is necessary, absolutely necessary, to kill the child in order to protect the life and the health of the mother, because I have hundreds who say it is not, hundreds from the finest universities and the finest medical schools all over this country who say absolutely, definitively--and the former Surgeon General of the United States, C. Everett Koop--never necessary, never necessary. Now, we also have to talk about all these cases that we are concerned about the mother's health. We make the assumption that abortion is an option to preserve the mother's health or life. I heard that over and over again. It has to be out there in late trimesters, after 20 weeks. Let me share a couple of statistics that shed some light on this. This was referred to by Dr. Calvin. I want to back it up by the statistics. This is from the Alan Guttmacher Institute. Who are they? They signed letters with NARAL and Planned Parenthood and all these other abortion groups, in support of this procedure, in support of every liberalization you can possibly imagine. They are a pro-choice, some would even suggest pro-abortion group. Here is what they say. The risk of death associated with abortion increases with the length of pregnancy, from 1 death in every 600,000 abortions at 8 or fewer weeks to 1 per 17,000 at 16-20 weeks, and [after 20 weeks, when partial-birth abortions are performed, they are considered late-term abortions after 20 weeks] 1 per 6,000 at 21 or more weeks. It is 100 times more likely that a mother will die than if the abortion were performed in the first 8 weeks. It is 100 times more likely. This is what these people are advocating, performing abortions. Let me throw one statistic on top of that. I will show it. I will read it. ``It should be noted that at 21 weeks and after, abortion is twice as risky for women as childbirth: The risk of maternal death is 1 in 6,000 for abortion and 1 in 13,000 for childbirth.'' So, aborting a child through partial-birth abortion, late in term, is statistically more dangerous to the life of the woman than inducing labor. In other words, not only is it preferential for our society not to kill children who should be given a chance at birth, late, when there may be a chance of viability or just when they should have at least some dignity attached to their life, but it is more dangerous to abort than it is to induce labor or to have a cesarean section. It is more dangerous. The folks who say they are protecting a woman's health and life are arguing for procedures that do the exact opposite. Facts: I know we do not like to talk about facts when it comes to abortion. We like to put up pictures of nice families and warm little babies, that somehow or another, this family is better off because of an abortion. The fact is by having an abortion she was twice as likely to die and not be in that picture. That is the fact. We do not want to talk about that. We want to make sure the right of abortion is paramount among all rights. Because that is what this amendment does--nothing. It lets there be abortion on demand, anytime, anywhere, on anybody. That is what this amendment does. It has no restrictions. It is an exception that is not an exception. It is an exception that says that, while we cannot have postviability abortions except for the health of the mother-- let me tell you what Dr. Warren Hern, who wrote the definitive textbook on abortion, called ``Abortion Practice,'' said. Here it is: ``Abortion Practice,'' Warren M. Hern, from Colorado. My understanding is this is sort of the definitive textbook on teaching abortions. He does second- and third- trimester abortions and is very outspoken on this subject. He does not use partial-birth abortion, I might add; does not see it as a recognized procedure. But this is what an abortionist who does late- term abortions--in fact, has people come from all over the world to have abortions done by him--this is what he said about, not the Boxer- Feinstein amendment but the Daschle amendment, which we are going to debate next: I will certify that any pregnancy is a threat to a woman's life and could cause grievous injury to her physical health. In other words, abortion on demand, anytime during pregnancy. And he believes this. Some would say you are relying on the doctor's bad faith--no. He believes this. And he has a right to believe it. If you look at the statistics, I mean, you know, unfortunately some women do die as a result of pregnancy and, therefore, he could say legitimately there is a risk. Any pregnancy is a risk. It may be a small risk, but it is a risk. And all these bills require, that we are going to hear today, is just a risk. Not a big risk, a risk. So what we have are limitations without limits. What we have is a farce, to try to fool all of you, to try to fool the press. It has done a very good job fooling the press. We have wonderful headlines about how we are trying to step forward and do something dramatic on limiting late-term abortions. Phooey, we have a step forward into the realm of political chicanery, of sham, of obfuscation, illusion, that does nothing but protect the politician at the risk of the baby. That is what is going on here. That is what is going on all day. You are going to hear a lot of it. You are going to hear, ``Oh, we need to do this, we need to protect this.'' Here are the facts as pointed out by their side. I am using their facts. The Alan Guttmacher Institute--their numbers. Even when we debate with their information they cannot refute it. The fact of the matter is, there is no reason to do a partial-birth abortion and there is every reason in the world to stop it. It is a dehumanizing procedure. You wonder why we have a society that just is becoming adrift, that does not know right from wrong, that does not have any sense of justice, that does not have--we do not have any compassion for each other? I will give you a good example why that happens. Because on the floor of the U.S. Senate we are debating a procedure where we can kill a [[Page S4524]] little innocent baby that is completely delivered from the mother except for the head. It is moving outside of the mother, a little baby who has done nothing wrong to anybody, and we are saying, ``You don't deserve to live.'' Give people like Donna Joy Watts a fighting chance. It will ennoble us all. We can look to Donna Joy and her family and say there are parents who showed the best, who showed the best in our hearts, who showed the willingness to fight for life, for things that are at the core of who we are as humanity. Let that spirit come back into American culture. Stop this culture of death and self-centeredness and focus in on life and dignity. What about poking scissors in the base of a little baby's skull and suctioning its brains out is dignifying the human being? You would not do that to a dog or an old cat that you wanted to put to sleep. You would not do it to a criminal who has killed 30 or 40 people. And you do it to a little baby who has done nothing wrong and just wants a chance, for however long it may be--and it may not be long--but, for however long, the dignity of life. The Senator from California talks about the long-lasting pain to the family that we would be imposing on them. What is so painful about looking at yourself in the mirror and saying: ``I have done everything I can to help my little girl or my little boy have a chance at life. I gave them every chance. I loved them as much as I possibly could in the time that God gave us.'' What is so painful about that? I will tell you pain. Facing, every day, that you killed your son or daughter for no reason, that is a pain I would not want to live with. Mrs. BOXER. Will the Senator yield to me for a question? Mr. SANTORUM. Not yet. Mrs. BOXER. Let me know. I will be happy to wait until you are ready. Thank you. Mr. SANTORUM. There are great pains out there when you are dealing with a child that is not going to live. It hurts. And it is troubling. But you will find, not only from my experience but from the experience of doctors who deal with this all the time, that treating your son or daughter with dignity, loving them as much as you can for as long as you can--does not make the pain go away. It never goes away. When you lose a child it never, ever goes away. But it helps you live with it. What we are doing today is, hopefully, banning a procedure and explaining to all of those unfortunate people who may be dealing today, right now, with this situation, that there is a better way for everyone. Let us do the better way. Let us do the right thing. Let us do the just thing for everyone. Mr. President, I yield the floor. Several Senators addressed the Chair. The PRESIDING OFFICER (Mr. Roberts). The Senator from Oklahoma is recognized. Mr. INHOFE. Mr. President, let me just make a couple of comments. The PRESIDING OFFICER. Who yields time? Mr. SANTORUM. I yield 10 minutes to the Senator. The PRESIDING OFFICER. The Senator from Pennsylvania has the time. Does the Senator from Pennsylvania yield time to the Senator from Oklahoma? Mr. SANTORUM. I yield 10 minutes to the Senator from Oklahoma. Mr. INHOFE. I thank the Senator from Pennsylvania for yielding time. I think he made one of the best presentations I have heard on the floor of this body. I want to say that, when he deals with the facts, he is dealing with the facts but, you know, we are also dealing today with perceptions. I tried to make a list of those things I have heard over and over. There is a lot of redundancy on this floor but there are some things that have not been stated. I would like to share a couple of those with you. I am going to do something that is a little unusual, because I am going to read some Scriptures to you. It is not totally unprecedented in this body. In fact, the distinguished senior Senator from West Virginia does it quite often. So I would like to read a couple of Scriptures, just for those who care. Anyone who does not, don't listen. First of all, I have used this a number of times, Jeremiah 1:35 says, ``Before I formed you in the womb I knew you; Before you were born I sanctified you.'' Or the 139th Psalm, no matter which interpretation you use, it makes it very clear when life begins. Then, I was, not too long ago, at the U.S. Holocaust Memorial Museum. I had been to the museum in Jerusalem, and I found the same thing was printed on the last brick as you are going through. This is Deuteronomy 30, verse 19. It said: ``I call heaven and earth as witnesses today against you, that I have set before you life and death, blessing and cursing; therefore choose life, that both you and your descendants may live.'' And, last, I am always concerned that something that is as dramatic and is as significant as this issue is going to go unnoticed; that maybe there are Senators out there who are not really into this issue and they might want to vote the party line, or they might want to say, well, maybe there aren't as many of these procedures out there, so they just really are not knowledgeable of the subject. So, I will read Proverbs 24, 11 and 12: Rescue those who are unjustly sentenced to death. Don't stand back and let them die. Don't try to disclaim responsibility by saying you didn't know about it, for God knows. Who knows all hearts knows yours, and He knew that you know. Mr. President, I was listening to the Senator from Massachusetts who said it does not do any good if we pass this because the President is going to veto it anyway. But I suggest to you that the President may not veto it, and if he does veto it, maybe some people will come over who were not here a year ago on this side of the aisle. Ron Fitzsimmons who just last year insisted that the number of partial birth abortions were a relative handful now admits ``I lied through my teeth.'' He was lying. So if the President is predicating his decision to veto this ban on the basis of what was told to him by Ron Fitzsimmons, there is every reason he could turn around on the issue. I suggest also that we are talking now not just about a procedure, but a culture. I have a very good friend by the name of Charles W. Colson who gave these remarks upon winning the prestigious Templeton Prize for contribution to religion. Listen very carefully. He puts it all together, not isolating one procedure or one issue: Courts strike down even perfunctory prayers, and we are surprised that schools, bristling with barbed wire, look more like prisons than prisons do. Universities reject the very idea of truth, and we are shocked when their best and brightest loot and betray. Celebrities mock the traditional family, even revile it as a form of slavery, and we are appalled at the tragedy of broken homes and millions of unwed mothers. The media celebrate sex without responsibility, and we are horrified by plagues. Our lawmakers justify the taking of innocent lives in sterile clinics, and we are terrorized by the disregard for life in blood-soaked streets. I think that kind of puts it into a context, which we are now approaching, that this is not just a normal type of an abortion. I have a great deal of respect for one of the most intellectual Members of this body. It is Senator Patrick Moynihan from New York, who is a self-proclaimed pro-choice Senator. He said: And now we have testimony that it is not just too close to infanticide, it is infanticide, and one would be too many. This is where we get into the numbers game. I heard it said on this floor many times that we are talking about maybe 1 percent or maybe talking about those that are in the ninth month may be an infinitesimal number. But, in fact, one is too many. It was said on the floor that we may be only talking about 200 lives being taken during the normal delivery process. That is when a baby is given a natural birth and, yet, they take the life by using this barbaric procedure. We have all kinds of documentat

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PARTIAL-BIRTH ABORTION BAN ACT OF 1997
(Senate - May 15, 1997)

Text of this article available as: TXT PDF [Pages S4517-S4575] PARTIAL-BIRTH ABORTION BAN ACT OF 1997 The PRESIDING OFFICER. Under the previous order, the Senate will now proceed to H.R. 1122, which the clerk will report. The legislative clerk read as follows: A bill (H.R. 1122) to amend title 18, United States Code, to ban partial-birth abortions. The Senate resumed consideration of the bill. The PRESIDING OFFICER (Mr. Inhofe). Under the previous order, the Senator from California is recognized to call up an amendment. Mrs. FEINSTEIN. Thank you, Mr. President. Amendment No. 288 (Purpose: To prohibit certain abortions) Mrs. FEINSTEIN. Mr. President, I would like to begin this debate by sending an amendment to the desk. This amendment is sent on behalf of myself, Senator Boxer, and Senator Moseley-Braun. The PRESIDING OFFICER. The clerk will report the amendment. The assistant legislative clerk read as follows: The Senator from California [Mrs. Feinstein], for herself, Mrs. Boxer, and Ms. Moseley-Braun proposes an amendment numbered 288. Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Strike all after the enacting clause and insert the following: SECTION 1. SHORT TITLE. This Act may be cited as the ``Post-Viability Abortion Restriction Act''. SEC. 2. PROHIBITION ON CERTAIN ABORTIONS. (a) In General.--It shall be unlawful, in or affecting interstate or foreign commerce, for [[Page S4518]] a physician knowingly to perform an abortion after the fetus has become viable. (b) Exception.--Subsection (a) does not apply if, in the medical judgment of the attending physician, the abortion is necessary to preserve the life of the woman or to avert serious adverse health consequences to the woman. SEC. 3. CIVIL PENALTIES. (a) Action by Attorney General.--The Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General or United States Attorney specifically designated by the Attorney General (referred to in this Act as the ``appropriate official''), may commence a civil action under this subsection in any appropriate United States district court to enforce the provisions of this Act. (b) Relief.-- (1) First violation.--In an action commenced under subsection (a), if the court finds that the respondent in the action has violated a provision of this Act, the court shall assess a civil penalty against the respondent in an amount not exceeding $100,000, and refer the case to the State medical licensing authority for consideration of suspension of the respondent's medical license. (2) Second violation.--If a respondent in an action commenced under subsection (a) has been found to have violated a provision of this Act on a prior occasion, the court shall assess a civil penalty against the respondent in an amount not exceeding $250,000, and refer the case to the State medical licensing authority for consideration of revocation of the respondent's medical license. (c) Certification Requirements.-- (1) In general.--At the time of the commencement of an action under subsection (a), the appropriate official shall certify to the court involved that the appropriate official-- (A) has provided notification in writing of the alleged violation of this Act, at least 30 calendar days prior to the filing of such action, to the attorney general or chief legal officer of the appropriate State or political subdivision; and (B) believes that such an action by the United States is in the public interest and necessary to secure substantial justice. (2) Limitation.--No woman who has had an abortion after fetal viability may be penalized under this Act for a conspiracy to violate this section or for an offense under section 2, 3, 4, or 1512 of title 18, United States Code. SEC. 4. REGULATIONS AND PROCEDURES. (a) In General.--Not later than 60 days after the date of enactment of this Act, the Secretary of Health and Human Services shall establish regulations-- (1) requiring an attending physician described in section 2(b) to certify that, in the best medical judgment of the physician, the abortion described in section 2(b) was medically necessary to preserve the life or to avert serious adverse health consequences to the woman involved, and to describe the medical indications supporting the judgment; and (2) to ensure the confidentiality of all information submitted pursuant to a certification by a physician under paragraph (1). (b) State Regulations and Procedures.--The regulations described in subsection (a) shall not apply in a State that has established regulations described in subsection (a). SEC. 5. RULE OF CONSTRUCTION. Nothing in this Act shall be construed to prohibit State or local governments from regulating, restricting, or prohibiting post-viability abortions to the extent permitted by the Constitution of the United States. Mrs. FEINSTEIN. Mr. President, I rise to offer a substitute amendment to H.R. 1122, which, as I said, is cosponsored by Senators Boxer and Moseley-Braun. The amendment we offer is presented as an alternative to the House-passed bill on so-called partial-birth abortions and as an alternative to the Daschle substitute as well. My colleagues and I offer this amendment for one reason: We very much believe that any legislation put forward by Congress that restricts access to abortions or to a particular medical procedure must be constitutional and must contain sufficient protections for a woman's health. The Feinstein-Boxer-Moseley-Braun bill provides that protection while instituting a ban on post-viability abortions similar to that in the Daschle bill. Our bill does three things. First, it prohibits all abortions after a fetus has become viable or able to live independently outside of the mother's womb. Second, it provides an exception for cases where, in the medical judgment of a physician, an abortion is necessary to preserve the life of the mother or to prevent serious adverse health consequences to the mother. And third, it provides stringent civil penalties for physicians performing post-viability abortions in the absence of compelling medical reasons. The penalties are limited to the physician and include for the first offense a fine of $100,000, and referral to a State licensing board for possible suspension of the medical license. For the second offense, the fine would be up to $250,000, with referral to the State licensing board for possible revocation of license. There is no health exception in H.R. 1122, known as the Santorum bill. And we do not believe that the health exception provided in the Daschle bill is sufficient, nor do we believe that it will meet the constitutional test. Let me begin by speaking of my opposition to the House bill. And let me begin by pleading with anyone listening to this debate to read the bill--read H.R. 1122. It is short. It is easy to read. I want to quote from page 2 of that bill to illustrate what this bill does. Let me begin on line 9: 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 two years, or both. The bill refers to a ``partial-birth abortion,'' which is a term not existing in medical literature or medical texts. So let us find out what a partial-birth abortion is. And we turn to line 19 of page 2 for that description: As used in this section, the term ``partial-birth abortion'' means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery. The issue here is clear. We heard yesterday on this floor a vivid description of a procedure, a procedure known as ``intact D'' Nowhere in House Resolution 1122 are ``intact D'' or ``intact D'' or any medical procedure referred to. Instead, we have a term not existent in medical science anywhere called ``partial-birth abortion.'' Now, anyone who is familiar with a woman's physiology knows that this term can be used to deny second-trimester and third-trimester abortions--virtually, I believe, all of them. If the concern of the authors of this legislation were truly in fact to prohibit or ban one specific procedure, why would they not spell out what the procedure is in legislative language just as they have graphically spelled out the procedure on the Senate floor? Why? Why not do that? I believe there is a reason why they did not do that. And the reason is, that I sincerely believe that this bill is meant to do much more, much more than simply ban a procedure known as intact D or intact D I believe that this bill is essentially a Trojan horse, a Trojan horse in the sense that it is not at all what it seems to be on the outside. If you look on the inside, which means opening the page of the bill, you will see that this bill is the first major legislative thrust to make abortion in the United States of America illegal. I stated yesterday on the floor that we are really a product of our live's experiences. And my life's experiences that have caused me to be essentially pro-choice are essentially threefold. The first, my days in college at Stanford University, days when I remember a bright young woman who committed suicide because she was pregnant and abortion was illegal in the United States. And I also remember the passing of a plate in a college dormitory so that another friend could go to Mexico for an abortion. I remember that well. My second life experience was in the early 1960's at the California Institution for Women, the women's prison in California for women convicted of felonies, where I set sentences and granted paroles to women convicted of providing abortions. I remember this well because the only way a case really came to the attention of the authorities was either through the morbidity or the mortality of the patient. And I remember the graphic stories in those cumulative summaries that were given to us prior to term setting, of what happened to women who were victims of illegal abortions. And I remember that the women who provided the abortions would leave and come back and commit the same crime again because of the importunings of other women. And the third graphic experience for me was becoming a grandmother and finding out that my daughter in her pregnancy had an unexpected, very serious, potentially life-threatening problem, and realizing how surprised I was not to know that this could happen in this day and age. But it did happen. [[Page S4519]] My story--my daughter's story--came out fine because today I have a bright-eyed and bushy-tailed and wonderful, light of my life, in the form of a 4\1/2\-year-old granddaughter by the name of Eileen. But I learned that there can be unpredictable occurrences, and that when we legislate--in a piece of paper that becomes an abiding law enforced everywhere throughout the United States of America--we ought to legislate with the knowledge that human life and human experience has many permutations that are unexpected and unanticipated. I view H.R. 1122 as doing much, much more than banning a simple procedure. That procedure is not mentioned anywhere in this piece of legislation. But it does set up the basis for lawsuit after lawsuit against any physician that might practice and might perform a second- trimester abortion. Every other type of abortion in some way has the head of the fetus coming through the birth canal. And then the case is, at what point is that fetus still living or not living? And so I think it is a potentially very dangerous piece of legislation in that regard. I mentioned yesterday that I basically do not believe that intact D or intact D should be used, that there are other forms of abortion. That is my personal belief. And I believe that the AMA is on its way in a medical venue of taking some steps to limit it. We all know we are talking about less than 1 percent of all of the abortions that take place in this country, in any event. So the question is, what do we do? What kind of legislation do we present that recognizes the exigencies, the human trials, the difficulties that a woman can have? Yesterday, I mentioned a young nurse; her name is Viki Wilson. When I was a county supervisor and mayor, I worked with her mother, Susan Wilson, who was a supervisor from Santa Clara County. Viki Wilson is a nurse, married to a doctor. In her 36th week she had a sonogram and she found out she had a severely deformed baby with its brain outside its skull. She learned that the contractions she was having were actually seizures that the child was having and that the child was incompatible of sustaining life outside of the womb. She went to a doctor and her doctor recommended the particular procedure that is under siege here today, as the procedure, at that stage of her pregnancy, that would be most protective of her health. I cannot tell you whether it was or not. I am not a physician. There is only one physician in this body who might know. Yet, we are going to legislate, in a bill that is drafted to be so broad, that it can impact much more than one procedure. The amendment that the three of us present to this body today, we believe, comports with Roe versus Wade. We believe it would not put in jeopardy every second- and third-trimester abortion. We believe it would prohibit every third-trimester abortion unless the life and the health, as defined by serious adverse health consequences to the mother, were at risk, and that this decision would be made by the physician and the woman, which I think is the appropriate remedy for this issue. I think this is a very difficult debate because most people have not read the bill before the Senate, H.R. 1122. Most people really do not understand the whole panoply of human ills that can take place in a pregnancy. I believe the AMA, in the recent paper they have put forward, very clearly indicates they believe that, with few exceptions, this procedure that is at question should not be used. However, they are not--and I think rightly so--not ready to sacrifice the integrity of the medical profession to say that no doctor, no matter what the situation is, no matter what the physiology of the woman may be, no matter that she may not be able to have another procedure, that she might be adversely impacted healthwise, cannot, no matter what the situation is, have this procedure as a remedy. Mr. President, we present to you a bill that we believe is constitutional, a bill that would ban all third-trimester abortions, unless the life and health of the woman, as defined as serious adverse health consequences, were threatened. The bill includes very strong civil penalties, which we believe would be a substantial deterrent to the performance of any third-trimester abortions unless there is a very serious medical need. Mr. President, I notice my distinguished colleague, and I ask the Senator from Massachusetts how much time he desires. Mr. KENNEDY. I would like 10 minutes, and I appreciate the courtesy, but I expect, Mr. President, that we are perhaps alternating back and forth. I see Senator DeWine, as well as Senator Santorum. Mr. SANTORUM. I will do a unanimous-consent request and then be happy to let the Senator from Massachusetts speak. Mrs. FEINSTEIN. I yield the floor. Privilege of the Floor Mr. SANTORUM. Mr. President, I ask unanimous consent that Steven Schlesinger, a detailee on the Judiciary Committee, and Michelle Kitchen, a member of my staff, be permitted privileges of the floor for the duration of the debate. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Massachusetts. Mr. KENNEDY. Mr. President, it is unfortunate that the Republican leadership has chosen to force this debate on the same confrontational and unconstitutional legislation that President Clinton vetoed last year, when reasonable and constitutional alternatives are so obviously available. It is clear that the primary purpose of the Republican leaders is not to regulate late-term abortions, but to roll back the protections for women guaranteed by the Supreme Court. If the goal is to pass effective legislation, the sponsors of the Santorum bill know they must meet the constitutional requirments for protecting of a woman's right to choose. President Clinton has made clear that he cannot and will not accept a ban on any procedure that represents the best hope for a woman to avoid serious risks to her health. The bill vetoed last year and the bill before us today are identical, and they clearly fail to provide these needed protections for women. The Supreme Court rulings in the Roe and Casey decisions prohibit Congress and the States from imposing an ``undue burden'' on a woman's right to choose to have an abortion at any time up to the point where the developing fetus reaches the stage of viability. Governments can constitutionally limit abortions after the stage of viability, as long as the limitations contain exceptions to protect the life and the health of the woman. This bill flunks that clear constitutional test in two ways. It imposes an undue burden--a flat prohibition--on a woman's constitutional right to an abortion before fetal viability. And it impermissibly limits the right to an abortion after fetal viability, by excluding any protection whatsoever for the woman's health. Given the clear constitutional problems with this bill, it is fair to ask, why do Republicans insist that we send it to the President, for another certain veto, when reasonable alternatives are available. In fact, there is little need for any Federal legislation in this area because 41 States already ban late-term abortions. Massachusetts has prohibited these abortions except when the woman's life is in danger or ``the continuation of the pregnancy would impose a substantial risk of grave impairment to the woman's physical or mental health.'' Many other States have similar restrictions. There is no evidence that the States are not enforcing their laws. Supporters of the Republican bill also claim that the public and Congress were misled about the actual number of abortions performed by the procedure that would be banned by their bill. But very few, if any, of us in the last Congress were misled about the facts. Only a few hundred of these procedures are performed after viability, and they are performed in cases where the fetus cannot survive because of a severe medical abnormality, or where there is a serious threat to the life or the health of the woman. It was clearly reported during last year's debate that the procedure was also used before the stage of viability, and that the number of such cases was larger, probably amounting to several thousand a year. But all of us were also [[Page S4520]] aware that Congress cannot constitutionally ban the procedure at that stage. We know that some doctors begin to use the particular procedure that would be banned by the Republican bill at about 20 weeks of gestation, which is well before the time when a fetus has the capacity for survival outside the womb. Most authorities place the time of viability at 24 to 26 weeks in a normal pregnancy. According to the best available statistics, 99 percent of all abortions are performed before 20 weeks. Only about 1 percent of all abortions are performed after that time, and two-thirds of those abortions are performed before the 23d week. This information is provided by the Alan Guttmacher Institute and used by the National Center for Health Statistics. It is the most accurate information available. Even so, it is difficult to draw a sharp dividing line on the viability of a particular pregnancy. A great deal depends on the prenatel care the woman is receiving. Low-birth weight babies reach viability at later stages of pregnancy. A further problem is that viability is to some extent a statistical concept. At 21 weeks of a normal pregnancy, few if any fetuses can survive. At 23 weeks about 25 percent survive. At 26 weeks about 50 percent survive. A physician's decision relies on best medical judgment, but it is hardly precise for a particular case. The real issue involves lives and the health of women. The so-called partial-birth abortion bill would not stop a single abortion. Instead, it would force women to use another, possibly more dangerous procedure if they must terminate their pregnancy to preserve their health. Of course, the sponsors of this bill continue to argue that there are no circumstances in which a procedure banned by the bill is necessary to preserve a woman's health. And, even worse, some supporters don't seem to care. Mark Crutcher, president of Life Dynamics, an antiabortion organization based in Denton TX, told the Detroit Free Press that the bill is ``a scam being perpetrated by people on our side of the issue * * * for fund-raising purposes.'' It doesn't seem to matter to the proponents of this defective Republican bill that women like Maureen Britell, Eileen Sullivan, Coreen Costello, Erica Fox, Vikki Stella, Tammy Watts, Viki Wilson, and others will be forced to risk serious health consequences if this bill becomes law. Doctor after doctor has told us that this procedure may be necessary to preserve a woman's health. The American College of Obstetricians and Gynecologists has said: An intact D may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision. The intervention of legislative bodies into medical decisionmaking is inappropriate, ill- advised, and dangerous. Perhaps if the Republican men in Congress were the ones to get pregnant, they would show more compassion for the women who find themselves in these tragic circumstances. Take the case of Coreen Costello. After consulting numerous medical experts and doing everything possible to save her child, Coreen had the procedure that would be banned by this legislation. Based on that experience, she gave the following testimony to the Senate Judiciary Committee last year: I hope you can put aside your political differences, your positions on abortion, and your party affiliations and just try to remember us. We are the ones who know. We are the families that ache to hold our babies, to love them, to nurture them. We are the families who will forever have a hole in our hearts. We are the families that had to choose how our babies would die * * * please put a stop to this terrible bill. Families like mine are counting on you. I oppose this legislation. Instead, I stand with Coreen Costello and others whose lives and health must be protected. The alternative proposed by Senator Snowe and Senator Daschle provides that protection, and so does the alternative proposed by Senator Feinstein, Senator Boxer and Senator Moseley-Braun. I intend to vote for these alternatives, because they respect the Constitution, and above all they respect the right of women and their doctors to make these difficult and tragic decisions. The PRESIDING OFFICER. The Senator from California. Mrs. FEINSTEIN. How much time is the Senator requesting? Mrs. BOXER. I ask for 15 minutes. Mrs. FEINSTEIN. Mr. President, I am happy to yield 15 minutes to the Senator from California. The PRESIDING OFFICER. The Senator from California. Mrs. BOXER. Mr. President, let me say how proud I am to stand with my colleague, my senior Senator from California, Senator Feinstein, and the senior Senator from Illinois, Senator Carol Moseley-Braun, who has just arrived on the floor, to speak in favor of the bill which really addresses an issue that the American people want addressed. It does so in a way that is constitutional. It does so in a way that is respectful of women and their families. When we approach this issue, we have very strong feelings in the approach that is taken, in a sensitive way. It is harmful legislation. It will harm women, will hurt women, will lead to women dying, will lead to women suffering infertility, suffering paralysis, and all needlessly. So what we have done in this legislation, which I am very proud of, is to basically codify Roe versus Wade. In other words, we support a woman's right to choose with the understanding that after viability, when the fetus can live outside the womb with or without life support, we want to be very careful that there should be no abortion at all unless the woman's life is threatened, or her health is threatened, and in those cases where a doctor so determines and the woman's family so agrees, that that woman will be able to terminate that pregnancy in a way that protects her life and her health. What we are attempting to do in the course of this debate is to put a woman's face back on this issue because, when you listen to the other side, the woman is completely forgotten. As I said yesterday, the day we pass legislation that harms more than half of our population is the day that I wonder what we are doing as a country. I hope that the other side on this issue would join hands with us and get this passed. We know the President would sign this bill. Then we can tell the American people together that the only cases of late-term abortion in this Nation that would be allowed is when the woman faces a life-threatening situation, if the pregnancy continues, or one that is so serious that action must be taken to terminate the pregnancy. Senator Santorum would outlaw a particular procedure and not allow it be used except in the most narrow circumstance. I want to tell you what some doctors have said about this procedure that Senator Santorum would ban. The American College of Obstetricians and Gynecologists is an organization representing 37,000 physicians. As I have said in the past, I know those of us who come to the U.S. Senate are pretty strong people who believe in our views, who believe in ourselves, but we ought to leave our egos at the door when it comes to protecting lives. When it comes to medical emergencies, we do not have the capability of deciding what procedure ought to be used in a hospital room. If you were to ask your constituents, I don't care what party, or whether they are Independent, Republican, Democratic, or whatever party they are for, who would you rather have in the emergency room with you, Senator Santorum, Senator Boxer, or the family doctor who is trained, who understands the issue? I think they would say, ``I don't want any politicians in the hospital room with me. I want the best physician that I can find for my wife or for my daughter or for my niece. And I want that doctor to have the full range of options,'' knowing that there will never be an abortion in the late term unless the life or health of the mother is at stake. That is a pretty moderate course, it seems to me, a pretty reasonable course. And that is the course of the Feinstein-Boxer-Moseley-Braun bill. Let me repeat, under our bill, there will be no late-term abortion, no post-viability abortion unless the doctor determines that to protect the woman's life and health he or she must terminate the pregnancy. [[Page S4521]] Senator Feinstein talked about Viki Wilson. I have her picture up here behind me with her loving family. And I think it is worth repeating the story. In her 36th week of the pregnancy, the nursery was ready, the family was anticipating the arrival of their new family member. Viki's doctor ordered an ultrasound which detected something that all of her prenatal testing had failed to detect. As Senator Feinstein told you, two-thirds of her daughter's brain had formed outside the skull, and the doctors feared that Viki's uterus would rupture in the birthing process leaving Viki sterile. After consulting with other physicians, with their clergy, with their God, in order to preserve Viki's fertility, they made the painful choice to have this procedure that would be outlawed under the Santorum bill. Now you see Viki, who has protected her fertility, a decision made with her doctor and her God. This procedure would be outlawed by the Santorum bill. The 37,000 gynecologists and obstetricians stated that this procedure that would be outlawed under the Santorum bill ``may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances, can make this decision. . .'' Today I received an additional letter that I want to share with my colleagues from David Grimes, a physician in San Francisco, CA. He tells the story--that he had never used this procedure that Senator Santorum wants to outlaw. But he talks about it this way, and the time that he did use it recently. He says: A woman in the Bay Area became seriously ill with preeclampsia (which is toxemia of pregnancy) at 24 weeks' gestation. She had a dangerous and extreme form of disease, called HELLP syndrome . . . she had liver failure and abnormal blood-clotting ability. The pregnancy had to be terminated to save her life. During several days spent unsuccessfully in attempts to induce labor, her medical condition continued to deteriorate. Finally, in desperation, the attending physician called me to assist . . . He said he accomplished the procedure in a manner of minutes with very little blood loss. She recovered quickly thereafter, and her physician discharged her home in good condition after a few weeks. He said: . . . I received a lovely thank you note from her husband. You know, this isn't only about women. It is about their loving husbands and their loving fathers. He ``received a . . . note from her husband thanking me for saving his wife's life.'' And the doctor said: In this instance, an intact D was the fastest and safest option available to me and to the patient. Congress must not take this option away. So, yet--and I have many other letters from physicians--that is exactly what this Congress is set to do. With the exception of 1 physician, who I don't believe is an OB-GYN, we have 99 people in here who do not know a whit about being an obstetrician or gynecologist. They don't have any training, at least that I know of. I find it the height of--I don't even know the right word to use--the ``height of ego,'' I guess, to think that we would know more than a physician, we would pass legislation that would take an option away from a physician. I can't believe that we would be doing this. I can tell you, I just had a community meeting in California. Maybe I knew 2 people out of 700 people that came out to the community meeting. The floor was open. It was their meeting. And not one of them stood up in that meeting and said, ``Senator Boxer, you ought to go there and outlaw medical procedures.'' What they told me is go back there and get that budget balanced, educate our children, and preserve our freedoms. So I have to say this is now the third time we have taken up this debate. It is the third time. It is painful. It is difficult. The reason I find it so painful is because in the name of saving pain, this Congress is going to vote for a bill that is going to cause families pain, and not just momentary pain, but long-lasting pain, because when a woman loses her fertility it is long-lasting pain, or if a woman gets paralyzed it is long-lasting pain. I want to talk to you about a couple of other women: Maureen Britell, a 30-year-old, Irish-Catholic mother of two, who lives in Massachusetts. On February 17, Maureen and her husband were awaiting--this is in 1994--joyously awaiting the birth of their second child. On that date, when she was 5 months pregnant, a sonogram determined that her daughter had no brain and could not live outside the womb. Her doctor recommended termination of the pregnancy. The next day a third-degree sonogram at the New England Medical Center in Boston confirmed the diagnosis that the baby had no brain and was not viable. Maureen and her family sought counsel from their parish priest, Father Greg, who supported the decision to terminate the pregnancy. Let me repeat that. Maureen and her family sought counsel from their parish priest, Father Greg, who supported the decision to terminate the pregnancy. They named their daughter Dahlia. She had a Catholic funeral, and was buried at Otis Air Force Base in Cape Cod. So Senators are going to interfere with the decision made by a family, its doctor, and their God. And by the passage of the Santorum legislation, if in fact it is going to pass, which indications are it will, that is just what we are doing--the height of ego. ``We know better than a doctor. We know better than a priest. We know better than a rabbi. We are going to be in the hospital room. We are going to say what medical procedures can't be performed.'' What is the next one? There are no pretty medical procedures, period. What is the next one that we are going to stand up here and outlaw? I want you to meet Eileen Sullivan. Eileen Sullivan, with 10 brothers and sisters, runs a nursery school in southern California. And she is an Irish-Catholic woman. Eileen writes, ``For as long as I can remember, being in the company of children was when I was happiest. So when my husband and I watched the home pregnancy test slowly show a positive result, we were ecstatic. After three years of trying to conceive a baby, I didn't believe it. So I kept checking the test against the diagram on the package. Sure enough, we had done it. We were going to have a baby.'' Eileen continues: My long awaited pregnancy was easy and blissful. As I charted my baby's growth week by week, the bond grew stronger between us. Many nights I spoke to my baby, saying that I accepted it just as it was, boy or girl, with dark eyes like mine or blue like my husband's. I didn't care--I was just so happy that we would finally be parents. At 26 weeks, Eileen went to her obstetrician for a routine ultrasound. After a few moments, her doctor got quiet and began to focus intently on the monitor. The doctor confirmed that there was a problem and sent Eileen and her husband to have tests immediately. The Sullivans went to a genetic specialist for another ultrasound. The doctor concluded that among other things: the baby's brain was improperly formed and being pressured by a back-up of fluid. His head was enlarged, his heart was malformed, his liver was malfunctioning, and there was a dangerously low amount of amniotic fluid. According to Eileen, for 2 hours the specialist detailed the baby's anomalies. Eileen writes, ``My husband and I held one another and tried to understand what was happening. This was a nightmare. We spoke to a genetics counselor and had a battery of additional tests including an amniocentesis and a placenta biopsy.'' She continues: ``When the tests came back, the prognosis was the same--the anomalies were incompatible with life.'' ``Not wanting to accept this,'' she writes, ``we went to another specialist--a pediatric cardiologist. His prognosis was no better. According to the cardiologist, our baby's heart condition was lethal and he would not live.'' She continues: ``We wept. We discussed what we should do, what was best and safest for myself and the baby. After all the talking was over, we were faced with the hardest decision of our [[Page S4522]] lives, and we opted to do what we thought was right. We opted to undergo a late-term abortion. Our long awaited, much anticipated baby was not going to make it, and there was nothing we could do to change that.'' Eileen continues: ``What we could do is choose the best way to end our pregnancy and help improve our chances of future pregnancy. I had had cervical cancer.'' She goes into all the problems and all the reasons why she had to make this choice. She said, ``We chose * * * a safe, surgical procedure that protected my health, spared my baby needless suffering and allowed us to hold our child and say our goodbyes. This is the procedure that would be banned by the legislation you are considering today.'' And she says, ``Please leave these difficult medical decisions where they belong--between women, their families and their doctors.'' So I think you have seen, Mr. President, that the women who have undergone these surgeries wanted these children desperately. Their husbands wanted these children desperately. They were religious, they are religious women. Many of them say they do not consider themselves pro-choice. But what we would do with the Santorum legislation is to take away an option that saved their fertility, saved their health, and perhaps even saved their lives. Why on Earth would we do this? I believe the Feinstein-Boxer-Moseley- Braun alternative is the sane way to go, the appropriate way to go. It keeps these decisions where they belong, and yet it says the only time that an abortion in the late term will be allowed would be when the woman's life is in danger or her health is in danger. So I proudly stand with my colleagues, and I urge my colleagues to be strong, to be courageous. I listen to these ads. I read these ads. They are misleading. They use hot button words, and I have to tell you, if you look at this and you look at these women, this, my friends, is the truth. These women stand and tell the truth. Let us stand with them. I thank you, I say to my friend and colleague, and I yield the floor. Mr. SANTORUM addressed the Chair. The PRESIDING OFFICER. The Senator from Pennsylvania. Mr. SANTORUM. Mr. President, I yield myself such time as I may use. Mr. President, there are so many things I would like to say, but let me just start with one at a time, and that is the pictures the Senator from California put up here of women who have been in situations where they were faced with a fetal abnormality and were convinced, unfortunately, by some genetics counselors and others to have an abortion as their option. Let me show you a picture of someone who wasn't convinced by genetics counselors that that was her only option. That is Donna Joy Watts. I talked about her yesterday. She had the same condition as two of the women that Senator Boxer just described--same condition. Her mother had to go to four hospitals to find someone who would not do what the people that Senator Boxer just talked about did, which is terminate the pregnancy, abort the child. She said no. She says, I'm going to let my child live in the fullness of what God has planned for her. I am not going to end her life. I am not going to make the decision to end her life, like any other mother or father would not, if they were faced with a sick child, kill them. Why would you kill your child? Because your child is sick? Because your child might not live long? Why kill your child? Lori Watts and Donny Watts said, no, we are not going to kill our child. We are going to do what we can. We are going to treat her with dignity and respect like any other member of our family. We are going to love her and do everything we can to support her. So they delivered Donna Joy Watts. The doctors would not treat her. They said she was going to die. They would not even feed her for 3 days. You want to talk about all these doctors who are so concerned about saving lives. Then why are we debating physician-assisted suicide if all these doctors are so concerned about saving lives? People who perform abortions are not principally concerned about saving lives. They are worried about malpractice concerns, particularly if you have a difficult pregnancy. They are worried about a whole lot of other things. But I would suggest, unfortunately, there are too many--if there is one, there is too many--doctors out there who--after she was born, doctors were referring to Donna Joy as a fetus laying there alive, breathing--a fetus. So do not tell me, do not tell me that all these caring, compassionate doctors would, of course, do everything to save a child's life. It is not true. God, I wish it were true. And, unfortunately, bad advice is given out by people who either do not know, have not taken the time to understand what options are available, what technology has been developed, or do not care or just are afraid to deal with the problem. Mr. and Mrs. Watts had to go to four hospitals just to find a place to have her delivered. They would not deliver her. They would abort her. They would do a partial-birth abortion. In fact, they offered a partial-birth abortion, but they would not deliver her. So do not bring your pictures up here and claim that is the only choice. This is not a choice. These are little babies. And they are asking us to help them now. This is not Senator Rick Santorum, nonphysician, speaking. Over 400 obstetricians and gynecologists--and by the way, the person who designed this barbaric procedure that we are debating was not an obstetrician. You hear so much about all these experts. He was not an expert. He is a family practitioner who does abortions, and you can only question as to why he spends all his time doing abortions instead of taking care of families. But that is what he does. He does abortions. This is not taught in any medical school. It is not in any peer review literature. It is not done anywhere but abortion places. It is not done in hospitals that deal with high-risk pregnancies. Ask the question. I will ask it. Can you find a place that deals with high-risk pregnancies that has perinatologists at their unit that does partial- birth abortions? The answer is no, zero. No hospitals do this procedure. If this is a procedure that was so important to be kept alive and so important to be an option, then why don't the experts, the people who study high-risk pregnancies, perform this? If this was the best choice--and the Senator from California suggested that in fact would be the only choice in certain cases. Yesterday, she listed five conditions in which this would be the only choice. Now, if you are a perinatologist, someone who deals in late-term pregnancies, and you are not performing this--you are basically telling the perinatologists that they are doing malpractice because they are not doing this procedure. Let me talk to you about one perinatologist who wrote to me. This is Dr. Steve Calvin, assistant professor, Division of Maternal-Fetal Medicine, Department of Obstetrics and Gynecology, University of Minnesota in Minneapolis: As a specialist in Maternal-Fetal Medicine, I practice with the busiest group of perinatologists-- That is obstetricians who work on high-risk pregnancies and deal with these fetal problems-- in the upper midwest. The busiest group of perinatologists in the upper Midwest. I also teach obstetrics to medical students and residents. I know of no instances when the killing of a partially born baby was necessary to accomplish delivery in any of the five medical situations listed by Senator Feinstein. Senator Feinstein claims that partial-birth abortion is necessary to end a pregnancy in the following five situations: Fetal hydrocephaly, fetal arthrogryposis, maternal cardiac problems (including congestive heart failure), maternal kidney disease and severe maternal hypertension. The first two conditions are significant fetal problems. Hydrocephalus-- And that is exactly, by the way, what Donna Joy Watts had-- is an increased amount of cerebrospinal fluid that can cause enlargement of the head and arthrogryposis includes deformities of the fetal limbs and spine. Significant as these abnormalities may be, they do not require the killing of a partially born fetus. Delivery can be accomplished by other means that are safer for the mother-- I repeat, ``safer for the mother''-- and give the fetus at least a chance of survival. And, I might add, apart from this, some dignity, some dignity to one of our children, one of our humankind, in the case of the family, one of their family. [[Page S4523]] The other three conditions are maternal illnesses that may indeed require ending the pregnancy. But, as with the fetal problems, there is no reason that the treatment must include suctioning out the brain of a partially born baby. One of my biggest concerns is that the opponents of this ban are claiming that this destructive procedure is the only method of ending a pregnancy. Abortion supporters have previously acknowledged that surgical mid-trimester and late- term abortions are more dangerous to a woman's health than induction of labor. Let me read this again. Abortion supporters have previously acknowledged that surgical mid-trimester and late-term abortions are more dangerous to a woman's health than induction of labor. Their concern for women's health and safety apparently ends when there is any threat to unrestricted abortion. Signed Steve Calvin, MD. And I will put up this quote from 400 doctors, over 400 doctors, including the former Surgeon General, C. Everett Koop. I suggest these over 400 doctors, many of them members of ACOG, which is American College of Obstetricians and Gynecologists, also are concerned about maternal health. Many of these are perinatologists, people who specialize in high-risk pregnancies. I would think they would be concerned about maternal health. Many of these doctors are pro-choice and they said the following clearly. While it may become necessary, in the second or third trimester, to end a pregnancy in order to protect the mother's life or health, abortion is never required. Now, they did not say it should be an option. They said never. These are experts. Senator Boxer says, well, Rick Santorum should not be in the operating room. I would not want to be in the operating room. I would pass out if I was in the operating room. The fact of the matter is I am not going to be in the operating room. These folks are. This is what they say. ``Never,'' not sometimes, ``never required.'' It is never medically necessary, in order to preserve a woman's life, health or future fertility, to deliberately kill an unborn child in the second or third trimester, and certainly-- Underline certainly-- not by mostly delivering the child before putting him or her to death. This last line is very important. What is required in the circumstances specified by Senator Daschle [Senator Boxer, Senator Feinstein] is separation of the child from the mother, not the death of the child. In other words, there may be cases where you must separate the child from the mother, you must deliver the baby, either by induction and delivery, vaginally or by cesarean section, but in no case, according to a doctor--and I ask if you can produce one perinatologist who would say that it is necessary, absolutely necessary, to kill the child in order to protect the life and the health of the mother, because I have hundreds who say it is not, hundreds from the finest universities and the finest medical schools all over this country who say absolutely, definitively--and the former Surgeon General of the United States, C. Everett Koop--never necessary, never necessary. Now, we also have to talk about all these cases that we are concerned about the mother's health. We make the assumption that abortion is an option to preserve the mother's health or life. I heard that over and over again. It has to be out there in late trimesters, after 20 weeks. Let me share a couple of statistics that shed some light on this. This was referred to by Dr. Calvin. I want to back it up by the statistics. This is from the Alan Guttmacher Institute. Who are they? They signed letters with NARAL and Planned Parenthood and all these other abortion groups, in support of this procedure, in support of every liberalization you can possibly imagine. They are a pro-choice, some would even suggest pro-abortion group. Here is what they say. The risk of death associated with abortion increases with the length of pregnancy, from 1 death in every 600,000 abortions at 8 or fewer weeks to 1 per 17,000 at 16-20 weeks, and [after 20 weeks, when partial-birth abortions are performed, they are considered late-term abortions after 20 weeks] 1 per 6,000 at 21 or more weeks. It is 100 times more likely that a mother will die than if the abortion were performed in the first 8 weeks. It is 100 times more likely. This is what these people are advocating, performing abortions. Let me throw one statistic on top of that. I will show it. I will read it. ``It should be noted that at 21 weeks and after, abortion is twice as risky for women as childbirth: The risk of maternal death is 1 in 6,000 for abortion and 1 in 13,000 for childbirth.'' So, aborting a child through partial-birth abortion, late in term, is statistically more dangerous to the life of the woman than inducing labor. In other words, not only is it preferential for our society not to kill children who should be given a chance at birth, late, when there may be a chance of viability or just when they should have at least some dignity attached to their life, but it is more dangerous to abort than it is to induce labor or to have a cesarean section. It is more dangerous. The folks who say they are protecting a woman's health and life are arguing for procedures that do the exact opposite. Facts: I know we do not like to talk about facts when it comes to abortion. We like to put up pictures of nice families and warm little babies, that somehow or another, this family is better off because of an abortion. The fact is by having an abortion she was twice as likely to die and not be in that picture. That is the fact. We do not want to talk about that. We want to make sure the right of abortion is paramount among all rights. Because that is what this amendment does--nothing. It lets there be abortion on demand, anytime, anywhere, on anybody. That is what this amendment does. It has no restrictions. It is an exception that is not an exception. It is an exception that says that, while we cannot have postviability abortions except for the health of the mother-- let me tell you what Dr. Warren Hern, who wrote the definitive textbook on abortion, called ``Abortion Practice,'' said. Here it is: ``Abortion Practice,'' Warren M. Hern, from Colorado. My understanding is this is sort of the definitive textbook on teaching abortions. He does second- and third- trimester abortions and is very outspoken on this subject. He does not use partial-birth abortion, I might add; does not see it as a recognized procedure. But this is what an abortionist who does late- term abortions--in fact, has people come from all over the world to have abortions done by him--this is what he said about, not the Boxer- Feinstein amendment but the Daschle amendment, which we are going to debate next: I will certify that any pregnancy is a threat to a woman's life and could cause grievous injury to her physical health. In other words, abortion on demand, anytime during pregnancy. And he believes this. Some would say you are relying on the doctor's bad faith--no. He believes this. And he has a right to believe it. If you look at the statistics, I mean, you know, unfortunately some women do die as a result of pregnancy and, therefore, he could say legitimately there is a risk. Any pregnancy is a risk. It may be a small risk, but it is a risk. And all these bills require, that we are going to hear today, is just a risk. Not a big risk, a risk. So what we have are limitations without limits. What we have is a farce, to try to fool all of you, to try to fool the press. It has done a very good job fooling the press. We have wonderful headlines about how we are trying to step forward and do something dramatic on limiting late-term abortions. Phooey, we have a step forward into the realm of political chicanery, of sham, of obfuscation, illusion, that does nothing but protect the politician at the risk of the baby. That is what is going on here. That is what is going on all day. You are going to hear a lot of it. You are going to hear, ``Oh, we need to do this, we need to protect this.'' Here are the facts as pointed out by their side. I am using their facts. The Alan Guttmacher Institute--their numbers. Even when we debate with their information they cannot refute it. The fact of the matter is, there is no reason to do a partial-birth abortion and there is every reason in the world to stop it. It is a dehumanizing procedure. You wonder why we have a society that just is becoming adrift, that does not know right from wrong, that does not have any sense of justice, that does not have--we do not have any compassion for each other? I will give you a good example why that happens. Because on the floor of the U.S. Senate we are debating a procedure where we can kill a [[Page S4524]] little innocent baby that is completely delivered from the mother except for the head. It is moving outside of the mother, a little baby who has done nothing wrong to anybody, and we are saying, ``You don't deserve to live.'' Give people like Donna Joy Watts a fighting chance. It will ennoble us all. We can look to Donna Joy and her family and say there are parents who showed the best, who showed the best in our hearts, who showed the willingness to fight for life, for things that are at the core of who we are as humanity. Let that spirit come back into American culture. Stop this culture of death and self-centeredness and focus in on life and dignity. What about poking scissors in the base of a little baby's skull and suctioning its brains out is dignifying the human being? You would not do that to a dog or an old cat that you wanted to put to sleep. You would not do it to a criminal who has killed 30 or 40 people. And you do it to a little baby who has done nothing wrong and just wants a chance, for however long it may be--and it may not be long--but, for however long, the dignity of life. The Senator from California talks about the long-lasting pain to the family that we would be imposing on them. What is so painful about looking at yourself in the mirror and saying: ``I have done everything I can to help my little girl or my little boy have a chance at life. I gave them every chance. I loved them as much as I possibly could in the time that God gave us.'' What is so painful about that? I will tell you pain. Facing, every day, that you killed your son or daughter for no reason, that is a pain I would not want to live with. Mrs. BOXER. Will the Senator yield to me for a question? Mr. SANTORUM. Not yet. Mrs. BOXER. Let me know. I will be happy to wait until you are ready. Thank you. Mr. SANTORUM. There are great pains out there when you are dealing with a child that is not going to live. It hurts. And it is troubling. But you will find, not only from my experience but from the experience of doctors who deal with this all the time, that treating your son or daughter with dignity, loving them as much as you can for as long as you can--does not make the pain go away. It never goes away. When you lose a child it never, ever goes away. But it helps you live with it. What we are doing today is, hopefully, banning a procedure and explaining to all of those unfortunate people who may be dealing today, right now, with this situation, that there is a better way for everyone. Let us do the better way. Let us do the right thing. Let us do the just thing for everyone. Mr. President, I yield the floor. Several Senators addressed the Chair. The PRESIDING OFFICER (Mr. Roberts). The Senator from Oklahoma is recognized. Mr. INHOFE. Mr. President, let me just make a couple of comments. The PRESIDING OFFICER. Who yields time? Mr. SANTORUM. I yield 10 minutes to the Senator. The PRESIDING OFFICER. The Senator from Pennsylvania has the time. Does the Senator from Pennsylvania yield time to the Senator from Oklahoma? Mr. SANTORUM. I yield 10 minutes to the Senator from Oklahoma. Mr. INHOFE. I thank the Senator from Pennsylvania for yielding time. I think he made one of the best presentations I have heard on the floor of this body. I want to say that, when he deals with the facts, he is dealing with the facts but, you know, we are also dealing today with perceptions. I tried to make a list of those things I have heard over and over. There is a lot of redundancy on this floor but there are some things that have not been stated. I would like to share a couple of those with you. I am going to do something that is a little unusual, because I am going to read some Scriptures to you. It is not totally unprecedented in this body. In fact, the distinguished senior Senator from West Virginia does it quite often. So I would like to read a couple of Scriptures, just for those who care. Anyone who does not, don't listen. First of all, I have used this a number of times, Jeremiah 1:35 says, ``Before I formed you in the womb I knew you; Before you were born I sanctified you.'' Or the 139th Psalm, no matter which interpretation you use, it makes it very clear when life begins. Then, I was, not too long ago, at the U.S. Holocaust Memorial Museum. I had been to the museum in Jerusalem, and I found the same thing was printed on the last brick as you are going through. This is Deuteronomy 30, verse 19. It said: ``I call heaven and earth as witnesses today against you, that I have set before you life and death, blessing and cursing; therefore choose life, that both you and your descendants may live.'' And, last, I am always concerned that something that is as dramatic and is as significant as this issue is going to go unnoticed; that maybe there are Senators out there who are not really into this issue and they might want to vote the party line, or they might want to say, well, maybe there aren't as many of these procedures out there, so they just really are not knowledgeable of the subject. So, I will read Proverbs 24, 11 and 12: Rescue those who are unjustly sentenced to death. Don't stand back and let them die. Don't try to disclaim responsibility by saying you didn't know about it, for God knows. Who knows all hearts knows yours, and He knew that you know. Mr. President, I was listening to the Senator from Massachusetts who said it does not do any good if we pass this because the President is going to veto it anyway. But I suggest to you that the President may not veto it, and if he does veto it, maybe some people will come over who were not here a year ago on this side of the aisle. Ron Fitzsimmons who just last year insisted that the number of partial birth abortions were a relative handful now admits ``I lied through my teeth.'' He was lying. So if the President is predicating his decision to veto this ban on the basis of what was told to him by Ron Fitzsimmons, there is every reason he could turn around on the issue. I suggest also that we are talking now not just about a procedure, but a culture. I have a very good friend by the name of Charles W. Colson who gave these remarks upon winning the prestigious Templeton Prize for contribution to religion. Listen very carefully. He puts it all together, not isolating one procedure or one issue: Courts strike down even perfunctory prayers, and we are surprised that schools, bristling with barbed wire, look more like prisons than prisons do. Universities reject the very idea of truth, and we are shocked when their best and brightest loot and betray. Celebrities mock the traditional family, even revile it as a form of slavery, and we are appalled at the tragedy of broken homes and millions of unwed mothers. The media celebrate sex without responsibility, and we are horrified by plagues. Our lawmakers justify the taking of innocent lives in sterile clinics, and we are terrorized by the disregard for life in blood-soaked streets. I think that kind of puts it into a context, which we are now approaching, that this is not just a normal type of an abortion. I have a great deal of respect for one of the most intellectual Members of this body. It is Senator Patrick Moynihan from New York, who is a self-proclaimed pro-choice Senator. He said: And now we have testimony that it is not just too close to infanticide, it is infanticide, and one would be too many. This is where we get into the numbers game. I heard it said on this floor many times that we are talking about maybe 1 percent or maybe talking about those that are in the ninth month may be an infinitesimal number. But, in fact, one is too many. It was said on the floor that we may be only talking about 200 lives being taken during the normal delivery process. That is when a baby is given a natural birth and, yet, they take the life by using this barbaric procedure. We have all kinds of documentation that i

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PARTIAL-BIRTH ABORTION BAN ACT OF 1997
(Senate - May 15, 1997)

Text of this article available as: TXT PDF [Pages S4517-S4575] PARTIAL-BIRTH ABORTION BAN ACT OF 1997 The PRESIDING OFFICER. Under the previous order, the Senate will now proceed to H.R. 1122, which the clerk will report. The legislative clerk read as follows: A bill (H.R. 1122) to amend title 18, United States Code, to ban partial-birth abortions. The Senate resumed consideration of the bill. The PRESIDING OFFICER (Mr. Inhofe). Under the previous order, the Senator from California is recognized to call up an amendment. Mrs. FEINSTEIN. Thank you, Mr. President. Amendment No. 288 (Purpose: To prohibit certain abortions) Mrs. FEINSTEIN. Mr. President, I would like to begin this debate by sending an amendment to the desk. This amendment is sent on behalf of myself, Senator Boxer, and Senator Moseley-Braun. The PRESIDING OFFICER. The clerk will report the amendment. The assistant legislative clerk read as follows: The Senator from California [Mrs. Feinstein], for herself, Mrs. Boxer, and Ms. Moseley-Braun proposes an amendment numbered 288. Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: Strike all after the enacting clause and insert the following: SECTION 1. SHORT TITLE. This Act may be cited as the ``Post-Viability Abortion Restriction Act''. SEC. 2. PROHIBITION ON CERTAIN ABORTIONS. (a) In General.--It shall be unlawful, in or affecting interstate or foreign commerce, for [[Page S4518]] a physician knowingly to perform an abortion after the fetus has become viable. (b) Exception.--Subsection (a) does not apply if, in the medical judgment of the attending physician, the abortion is necessary to preserve the life of the woman or to avert serious adverse health consequences to the woman. SEC. 3. CIVIL PENALTIES. (a) Action by Attorney General.--The Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General or United States Attorney specifically designated by the Attorney General (referred to in this Act as the ``appropriate official''), may commence a civil action under this subsection in any appropriate United States district court to enforce the provisions of this Act. (b) Relief.-- (1) First violation.--In an action commenced under subsection (a), if the court finds that the respondent in the action has violated a provision of this Act, the court shall assess a civil penalty against the respondent in an amount not exceeding $100,000, and refer the case to the State medical licensing authority for consideration of suspension of the respondent's medical license. (2) Second violation.--If a respondent in an action commenced under subsection (a) has been found to have violated a provision of this Act on a prior occasion, the court shall assess a civil penalty against the respondent in an amount not exceeding $250,000, and refer the case to the State medical licensing authority for consideration of revocation of the respondent's medical license. (c) Certification Requirements.-- (1) In general.--At the time of the commencement of an action under subsection (a), the appropriate official shall certify to the court involved that the appropriate official-- (A) has provided notification in writing of the alleged violation of this Act, at least 30 calendar days prior to the filing of such action, to the attorney general or chief legal officer of the appropriate State or political subdivision; and (B) believes that such an action by the United States is in the public interest and necessary to secure substantial justice. (2) Limitation.--No woman who has had an abortion after fetal viability may be penalized under this Act for a conspiracy to violate this section or for an offense under section 2, 3, 4, or 1512 of title 18, United States Code. SEC. 4. REGULATIONS AND PROCEDURES. (a) In General.--Not later than 60 days after the date of enactment of this Act, the Secretary of Health and Human Services shall establish regulations-- (1) requiring an attending physician described in section 2(b) to certify that, in the best medical judgment of the physician, the abortion described in section 2(b) was medically necessary to preserve the life or to avert serious adverse health consequences to the woman involved, and to describe the medical indications supporting the judgment; and (2) to ensure the confidentiality of all information submitted pursuant to a certification by a physician under paragraph (1). (b) State Regulations and Procedures.--The regulations described in subsection (a) shall not apply in a State that has established regulations described in subsection (a). SEC. 5. RULE OF CONSTRUCTION. Nothing in this Act shall be construed to prohibit State or local governments from regulating, restricting, or prohibiting post-viability abortions to the extent permitted by the Constitution of the United States. Mrs. FEINSTEIN. Mr. President, I rise to offer a substitute amendment to H.R. 1122, which, as I said, is cosponsored by Senators Boxer and Moseley-Braun. The amendment we offer is presented as an alternative to the House-passed bill on so-called partial-birth abortions and as an alternative to the Daschle substitute as well. My colleagues and I offer this amendment for one reason: We very much believe that any legislation put forward by Congress that restricts access to abortions or to a particular medical procedure must be constitutional and must contain sufficient protections for a woman's health. The Feinstein-Boxer-Moseley-Braun bill provides that protection while instituting a ban on post-viability abortions similar to that in the Daschle bill. Our bill does three things. First, it prohibits all abortions after a fetus has become viable or able to live independently outside of the mother's womb. Second, it provides an exception for cases where, in the medical judgment of a physician, an abortion is necessary to preserve the life of the mother or to prevent serious adverse health consequences to the mother. And third, it provides stringent civil penalties for physicians performing post-viability abortions in the absence of compelling medical reasons. The penalties are limited to the physician and include for the first offense a fine of $100,000, and referral to a State licensing board for possible suspension of the medical license. For the second offense, the fine would be up to $250,000, with referral to the State licensing board for possible revocation of license. There is no health exception in H.R. 1122, known as the Santorum bill. And we do not believe that the health exception provided in the Daschle bill is sufficient, nor do we believe that it will meet the constitutional test. Let me begin by speaking of my opposition to the House bill. And let me begin by pleading with anyone listening to this debate to read the bill--read H.R. 1122. It is short. It is easy to read. I want to quote from page 2 of that bill to illustrate what this bill does. Let me begin on line 9: 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 two years, or both. The bill refers to a ``partial-birth abortion,'' which is a term not existing in medical literature or medical texts. So let us find out what a partial-birth abortion is. And we turn to line 19 of page 2 for that description: As used in this section, the term ``partial-birth abortion'' means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery. The issue here is clear. We heard yesterday on this floor a vivid description of a procedure, a procedure known as ``intact D'' Nowhere in House Resolution 1122 are ``intact D'' or ``intact D'' or any medical procedure referred to. Instead, we have a term not existent in medical science anywhere called ``partial-birth abortion.'' Now, anyone who is familiar with a woman's physiology knows that this term can be used to deny second-trimester and third-trimester abortions--virtually, I believe, all of them. If the concern of the authors of this legislation were truly in fact to prohibit or ban one specific procedure, why would they not spell out what the procedure is in legislative language just as they have graphically spelled out the procedure on the Senate floor? Why? Why not do that? I believe there is a reason why they did not do that. And the reason is, that I sincerely believe that this bill is meant to do much more, much more than simply ban a procedure known as intact D or intact D I believe that this bill is essentially a Trojan horse, a Trojan horse in the sense that it is not at all what it seems to be on the outside. If you look on the inside, which means opening the page of the bill, you will see that this bill is the first major legislative thrust to make abortion in the United States of America illegal. I stated yesterday on the floor that we are really a product of our live's experiences. And my life's experiences that have caused me to be essentially pro-choice are essentially threefold. The first, my days in college at Stanford University, days when I remember a bright young woman who committed suicide because she was pregnant and abortion was illegal in the United States. And I also remember the passing of a plate in a college dormitory so that another friend could go to Mexico for an abortion. I remember that well. My second life experience was in the early 1960's at the California Institution for Women, the women's prison in California for women convicted of felonies, where I set sentences and granted paroles to women convicted of providing abortions. I remember this well because the only way a case really came to the attention of the authorities was either through the morbidity or the mortality of the patient. And I remember the graphic stories in those cumulative summaries that were given to us prior to term setting, of what happened to women who were victims of illegal abortions. And I remember that the women who provided the abortions would leave and come back and commit the same crime again because of the importunings of other women. And the third graphic experience for me was becoming a grandmother and finding out that my daughter in her pregnancy had an unexpected, very serious, potentially life-threatening problem, and realizing how surprised I was not to know that this could happen in this day and age. But it did happen. [[Page S4519]] My story--my daughter's story--came out fine because today I have a bright-eyed and bushy-tailed and wonderful, light of my life, in the form of a 4\1/2\-year-old granddaughter by the name of Eileen. But I learned that there can be unpredictable occurrences, and that when we legislate--in a piece of paper that becomes an abiding law enforced everywhere throughout the United States of America--we ought to legislate with the knowledge that human life and human experience has many permutations that are unexpected and unanticipated. I view H.R. 1122 as doing much, much more than banning a simple procedure. That procedure is not mentioned anywhere in this piece of legislation. But it does set up the basis for lawsuit after lawsuit against any physician that might practice and might perform a second- trimester abortion. Every other type of abortion in some way has the head of the fetus coming through the birth canal. And then the case is, at what point is that fetus still living or not living? And so I think it is a potentially very dangerous piece of legislation in that regard. I mentioned yesterday that I basically do not believe that intact D or intact D should be used, that there are other forms of abortion. That is my personal belief. And I believe that the AMA is on its way in a medical venue of taking some steps to limit it. We all know we are talking about less than 1 percent of all of the abortions that take place in this country, in any event. So the question is, what do we do? What kind of legislation do we present that recognizes the exigencies, the human trials, the difficulties that a woman can have? Yesterday, I mentioned a young nurse; her name is Viki Wilson. When I was a county supervisor and mayor, I worked with her mother, Susan Wilson, who was a supervisor from Santa Clara County. Viki Wilson is a nurse, married to a doctor. In her 36th week she had a sonogram and she found out she had a severely deformed baby with its brain outside its skull. She learned that the contractions she was having were actually seizures that the child was having and that the child was incompatible of sustaining life outside of the womb. She went to a doctor and her doctor recommended the particular procedure that is under siege here today, as the procedure, at that stage of her pregnancy, that would be most protective of her health. I cannot tell you whether it was or not. I am not a physician. There is only one physician in this body who might know. Yet, we are going to legislate, in a bill that is drafted to be so broad, that it can impact much more than one procedure. The amendment that the three of us present to this body today, we believe, comports with Roe versus Wade. We believe it would not put in jeopardy every second- and third-trimester abortion. We believe it would prohibit every third-trimester abortion unless the life and the health, as defined by serious adverse health consequences to the mother, were at risk, and that this decision would be made by the physician and the woman, which I think is the appropriate remedy for this issue. I think this is a very difficult debate because most people have not read the bill before the Senate, H.R. 1122. Most people really do not understand the whole panoply of human ills that can take place in a pregnancy. I believe the AMA, in the recent paper they have put forward, very clearly indicates they believe that, with few exceptions, this procedure that is at question should not be used. However, they are not--and I think rightly so--not ready to sacrifice the integrity of the medical profession to say that no doctor, no matter what the situation is, no matter what the physiology of the woman may be, no matter that she may not be able to have another procedure, that she might be adversely impacted healthwise, cannot, no matter what the situation is, have this procedure as a remedy. Mr. President, we present to you a bill that we believe is constitutional, a bill that would ban all third-trimester abortions, unless the life and health of the woman, as defined as serious adverse health consequences, were threatened. The bill includes very strong civil penalties, which we believe would be a substantial deterrent to the performance of any third-trimester abortions unless there is a very serious medical need. Mr. President, I notice my distinguished colleague, and I ask the Senator from Massachusetts how much time he desires. Mr. KENNEDY. I would like 10 minutes, and I appreciate the courtesy, but I expect, Mr. President, that we are perhaps alternating back and forth. I see Senator DeWine, as well as Senator Santorum. Mr. SANTORUM. I will do a unanimous-consent request and then be happy to let the Senator from Massachusetts speak. Mrs. FEINSTEIN. I yield the floor. Privilege of the Floor Mr. SANTORUM. Mr. President, I ask unanimous consent that Steven Schlesinger, a detailee on the Judiciary Committee, and Michelle Kitchen, a member of my staff, be permitted privileges of the floor for the duration of the debate. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Massachusetts. Mr. KENNEDY. Mr. President, it is unfortunate that the Republican leadership has chosen to force this debate on the same confrontational and unconstitutional legislation that President Clinton vetoed last year, when reasonable and constitutional alternatives are so obviously available. It is clear that the primary purpose of the Republican leaders is not to regulate late-term abortions, but to roll back the protections for women guaranteed by the Supreme Court. If the goal is to pass effective legislation, the sponsors of the Santorum bill know they must meet the constitutional requirments for protecting of a woman's right to choose. President Clinton has made clear that he cannot and will not accept a ban on any procedure that represents the best hope for a woman to avoid serious risks to her health. The bill vetoed last year and the bill before us today are identical, and they clearly fail to provide these needed protections for women. The Supreme Court rulings in the Roe and Casey decisions prohibit Congress and the States from imposing an ``undue burden'' on a woman's right to choose to have an abortion at any time up to the point where the developing fetus reaches the stage of viability. Governments can constitutionally limit abortions after the stage of viability, as long as the limitations contain exceptions to protect the life and the health of the woman. This bill flunks that clear constitutional test in two ways. It imposes an undue burden--a flat prohibition--on a woman's constitutional right to an abortion before fetal viability. And it impermissibly limits the right to an abortion after fetal viability, by excluding any protection whatsoever for the woman's health. Given the clear constitutional problems with this bill, it is fair to ask, why do Republicans insist that we send it to the President, for another certain veto, when reasonable alternatives are available. In fact, there is little need for any Federal legislation in this area because 41 States already ban late-term abortions. Massachusetts has prohibited these abortions except when the woman's life is in danger or ``the continuation of the pregnancy would impose a substantial risk of grave impairment to the woman's physical or mental health.'' Many other States have similar restrictions. There is no evidence that the States are not enforcing their laws. Supporters of the Republican bill also claim that the public and Congress were misled about the actual number of abortions performed by the procedure that would be banned by their bill. But very few, if any, of us in the last Congress were misled about the facts. Only a few hundred of these procedures are performed after viability, and they are performed in cases where the fetus cannot survive because of a severe medical abnormality, or where there is a serious threat to the life or the health of the woman. It was clearly reported during last year's debate that the procedure was also used before the stage of viability, and that the number of such cases was larger, probably amounting to several thousand a year. But all of us were also [[Page S4520]] aware that Congress cannot constitutionally ban the procedure at that stage. We know that some doctors begin to use the particular procedure that would be banned by the Republican bill at about 20 weeks of gestation, which is well before the time when a fetus has the capacity for survival outside the womb. Most authorities place the time of viability at 24 to 26 weeks in a normal pregnancy. According to the best available statistics, 99 percent of all abortions are performed before 20 weeks. Only about 1 percent of all abortions are performed after that time, and two-thirds of those abortions are performed before the 23d week. This information is provided by the Alan Guttmacher Institute and used by the National Center for Health Statistics. It is the most accurate information available. Even so, it is difficult to draw a sharp dividing line on the viability of a particular pregnancy. A great deal depends on the prenatel care the woman is receiving. Low-birth weight babies reach viability at later stages of pregnancy. A further problem is that viability is to some extent a statistical concept. At 21 weeks of a normal pregnancy, few if any fetuses can survive. At 23 weeks about 25 percent survive. At 26 weeks about 50 percent survive. A physician's decision relies on best medical judgment, but it is hardly precise for a particular case. The real issue involves lives and the health of women. The so-called partial-birth abortion bill would not stop a single abortion. Instead, it would force women to use another, possibly more dangerous procedure if they must terminate their pregnancy to preserve their health. Of course, the sponsors of this bill continue to argue that there are no circumstances in which a procedure banned by the bill is necessary to preserve a woman's health. And, even worse, some supporters don't seem to care. Mark Crutcher, president of Life Dynamics, an antiabortion organization based in Denton TX, told the Detroit Free Press that the bill is ``a scam being perpetrated by people on our side of the issue * * * for fund-raising purposes.'' It doesn't seem to matter to the proponents of this defective Republican bill that women like Maureen Britell, Eileen Sullivan, Coreen Costello, Erica Fox, Vikki Stella, Tammy Watts, Viki Wilson, and others will be forced to risk serious health consequences if this bill becomes law. Doctor after doctor has told us that this procedure may be necessary to preserve a woman's health. The American College of Obstetricians and Gynecologists has said: An intact D may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision. The intervention of legislative bodies into medical decisionmaking is inappropriate, ill- advised, and dangerous. Perhaps if the Republican men in Congress were the ones to get pregnant, they would show more compassion for the women who find themselves in these tragic circumstances. Take the case of Coreen Costello. After consulting numerous medical experts and doing everything possible to save her child, Coreen had the procedure that would be banned by this legislation. Based on that experience, she gave the following testimony to the Senate Judiciary Committee last year: I hope you can put aside your political differences, your positions on abortion, and your party affiliations and just try to remember us. We are the ones who know. We are the families that ache to hold our babies, to love them, to nurture them. We are the families who will forever have a hole in our hearts. We are the families that had to choose how our babies would die * * * please put a stop to this terrible bill. Families like mine are counting on you. I oppose this legislation. Instead, I stand with Coreen Costello and others whose lives and health must be protected. The alternative proposed by Senator Snowe and Senator Daschle provides that protection, and so does the alternative proposed by Senator Feinstein, Senator Boxer and Senator Moseley-Braun. I intend to vote for these alternatives, because they respect the Constitution, and above all they respect the right of women and their doctors to make these difficult and tragic decisions. The PRESIDING OFFICER. The Senator from California. Mrs. FEINSTEIN. How much time is the Senator requesting? Mrs. BOXER. I ask for 15 minutes. Mrs. FEINSTEIN. Mr. President, I am happy to yield 15 minutes to the Senator from California. The PRESIDING OFFICER. The Senator from California. Mrs. BOXER. Mr. President, let me say how proud I am to stand with my colleague, my senior Senator from California, Senator Feinstein, and the senior Senator from Illinois, Senator Carol Moseley-Braun, who has just arrived on the floor, to speak in favor of the bill which really addresses an issue that the American people want addressed. It does so in a way that is constitutional. It does so in a way that is respectful of women and their families. When we approach this issue, we have very strong feelings in the approach that is taken, in a sensitive way. It is harmful legislation. It will harm women, will hurt women, will lead to women dying, will lead to women suffering infertility, suffering paralysis, and all needlessly. So what we have done in this legislation, which I am very proud of, is to basically codify Roe versus Wade. In other words, we support a woman's right to choose with the understanding that after viability, when the fetus can live outside the womb with or without life support, we want to be very careful that there should be no abortion at all unless the woman's life is threatened, or her health is threatened, and in those cases where a doctor so determines and the woman's family so agrees, that that woman will be able to terminate that pregnancy in a way that protects her life and her health. What we are attempting to do in the course of this debate is to put a woman's face back on this issue because, when you listen to the other side, the woman is completely forgotten. As I said yesterday, the day we pass legislation that harms more than half of our population is the day that I wonder what we are doing as a country. I hope that the other side on this issue would join hands with us and get this passed. We know the President would sign this bill. Then we can tell the American people together that the only cases of late-term abortion in this Nation that would be allowed is when the woman faces a life-threatening situation, if the pregnancy continues, or one that is so serious that action must be taken to terminate the pregnancy. Senator Santorum would outlaw a particular procedure and not allow it be used except in the most narrow circumstance. I want to tell you what some doctors have said about this procedure that Senator Santorum would ban. The American College of Obstetricians and Gynecologists is an organization representing 37,000 physicians. As I have said in the past, I know those of us who come to the U.S. Senate are pretty strong people who believe in our views, who believe in ourselves, but we ought to leave our egos at the door when it comes to protecting lives. When it comes to medical emergencies, we do not have the capability of deciding what procedure ought to be used in a hospital room. If you were to ask your constituents, I don't care what party, or whether they are Independent, Republican, Democratic, or whatever party they are for, who would you rather have in the emergency room with you, Senator Santorum, Senator Boxer, or the family doctor who is trained, who understands the issue? I think they would say, ``I don't want any politicians in the hospital room with me. I want the best physician that I can find for my wife or for my daughter or for my niece. And I want that doctor to have the full range of options,'' knowing that there will never be an abortion in the late term unless the life or health of the mother is at stake. That is a pretty moderate course, it seems to me, a pretty reasonable course. And that is the course of the Feinstein-Boxer-Moseley-Braun bill. Let me repeat, under our bill, there will be no late-term abortion, no post-viability abortion unless the doctor determines that to protect the woman's life and health he or she must terminate the pregnancy. [[Page S4521]] Senator Feinstein talked about Viki Wilson. I have her picture up here behind me with her loving family. And I think it is worth repeating the story. In her 36th week of the pregnancy, the nursery was ready, the family was anticipating the arrival of their new family member. Viki's doctor ordered an ultrasound which detected something that all of her prenatal testing had failed to detect. As Senator Feinstein told you, two-thirds of her daughter's brain had formed outside the skull, and the doctors feared that Viki's uterus would rupture in the birthing process leaving Viki sterile. After consulting with other physicians, with their clergy, with their God, in order to preserve Viki's fertility, they made the painful choice to have this procedure that would be outlawed under the Santorum bill. Now you see Viki, who has protected her fertility, a decision made with her doctor and her God. This procedure would be outlawed by the Santorum bill. The 37,000 gynecologists and obstetricians stated that this procedure that would be outlawed under the Santorum bill ``may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances, can make this decision. . .'' Today I received an additional letter that I want to share with my colleagues from David Grimes, a physician in San Francisco, CA. He tells the story--that he had never used this procedure that Senator Santorum wants to outlaw. But he talks about it this way, and the time that he did use it recently. He says: A woman in the Bay Area became seriously ill with preeclampsia (which is toxemia of pregnancy) at 24 weeks' gestation. She had a dangerous and extreme form of disease, called HELLP syndrome . . . she had liver failure and abnormal blood-clotting ability. The pregnancy had to be terminated to save her life. During several days spent unsuccessfully in attempts to induce labor, her medical condition continued to deteriorate. Finally, in desperation, the attending physician called me to assist . . . He said he accomplished the procedure in a manner of minutes with very little blood loss. She recovered quickly thereafter, and her physician discharged her home in good condition after a few weeks. He said: . . . I received a lovely thank you note from her husband. You know, this isn't only about women. It is about their loving husbands and their loving fathers. He ``received a . . . note from her husband thanking me for saving his wife's life.'' And the doctor said: In this instance, an intact D was the fastest and safest option available to me and to the patient. Congress must not take this option away. So, yet--and I have many other letters from physicians--that is exactly what this Congress is set to do. With the exception of 1 physician, who I don't believe is an OB-GYN, we have 99 people in here who do not know a whit about being an obstetrician or gynecologist. They don't have any training, at least that I know of. I find it the height of--I don't even know the right word to use--the ``height of ego,'' I guess, to think that we would know more than a physician, we would pass legislation that would take an option away from a physician. I can't believe that we would be doing this. I can tell you, I just had a community meeting in California. Maybe I knew 2 people out of 700 people that came out to the community meeting. The floor was open. It was their meeting. And not one of them stood up in that meeting and said, ``Senator Boxer, you ought to go there and outlaw medical procedures.'' What they told me is go back there and get that budget balanced, educate our children, and preserve our freedoms. So I have to say this is now the third time we have taken up this debate. It is the third time. It is painful. It is difficult. The reason I find it so painful is because in the name of saving pain, this Congress is going to vote for a bill that is going to cause families pain, and not just momentary pain, but long-lasting pain, because when a woman loses her fertility it is long-lasting pain, or if a woman gets paralyzed it is long-lasting pain. I want to talk to you about a couple of other women: Maureen Britell, a 30-year-old, Irish-Catholic mother of two, who lives in Massachusetts. On February 17, Maureen and her husband were awaiting--this is in 1994--joyously awaiting the birth of their second child. On that date, when she was 5 months pregnant, a sonogram determined that her daughter had no brain and could not live outside the womb. Her doctor recommended termination of the pregnancy. The next day a third-degree sonogram at the New England Medical Center in Boston confirmed the diagnosis that the baby had no brain and was not viable. Maureen and her family sought counsel from their parish priest, Father Greg, who supported the decision to terminate the pregnancy. Let me repeat that. Maureen and her family sought counsel from their parish priest, Father Greg, who supported the decision to terminate the pregnancy. They named their daughter Dahlia. She had a Catholic funeral, and was buried at Otis Air Force Base in Cape Cod. So Senators are going to interfere with the decision made by a family, its doctor, and their God. And by the passage of the Santorum legislation, if in fact it is going to pass, which indications are it will, that is just what we are doing--the height of ego. ``We know better than a doctor. We know better than a priest. We know better than a rabbi. We are going to be in the hospital room. We are going to say what medical procedures can't be performed.'' What is the next one? There are no pretty medical procedures, period. What is the next one that we are going to stand up here and outlaw? I want you to meet Eileen Sullivan. Eileen Sullivan, with 10 brothers and sisters, runs a nursery school in southern California. And she is an Irish-Catholic woman. Eileen writes, ``For as long as I can remember, being in the company of children was when I was happiest. So when my husband and I watched the home pregnancy test slowly show a positive result, we were ecstatic. After three years of trying to conceive a baby, I didn't believe it. So I kept checking the test against the diagram on the package. Sure enough, we had done it. We were going to have a baby.'' Eileen continues: My long awaited pregnancy was easy and blissful. As I charted my baby's growth week by week, the bond grew stronger between us. Many nights I spoke to my baby, saying that I accepted it just as it was, boy or girl, with dark eyes like mine or blue like my husband's. I didn't care--I was just so happy that we would finally be parents. At 26 weeks, Eileen went to her obstetrician for a routine ultrasound. After a few moments, her doctor got quiet and began to focus intently on the monitor. The doctor confirmed that there was a problem and sent Eileen and her husband to have tests immediately. The Sullivans went to a genetic specialist for another ultrasound. The doctor concluded that among other things: the baby's brain was improperly formed and being pressured by a back-up of fluid. His head was enlarged, his heart was malformed, his liver was malfunctioning, and there was a dangerously low amount of amniotic fluid. According to Eileen, for 2 hours the specialist detailed the baby's anomalies. Eileen writes, ``My husband and I held one another and tried to understand what was happening. This was a nightmare. We spoke to a genetics counselor and had a battery of additional tests including an amniocentesis and a placenta biopsy.'' She continues: ``When the tests came back, the prognosis was the same--the anomalies were incompatible with life.'' ``Not wanting to accept this,'' she writes, ``we went to another specialist--a pediatric cardiologist. His prognosis was no better. According to the cardiologist, our baby's heart condition was lethal and he would not live.'' She continues: ``We wept. We discussed what we should do, what was best and safest for myself and the baby. After all the talking was over, we were faced with the hardest decision of our [[Page S4522]] lives, and we opted to do what we thought was right. We opted to undergo a late-term abortion. Our long awaited, much anticipated baby was not going to make it, and there was nothing we could do to change that.'' Eileen continues: ``What we could do is choose the best way to end our pregnancy and help improve our chances of future pregnancy. I had had cervical cancer.'' She goes into all the problems and all the reasons why she had to make this choice. She said, ``We chose * * * a safe, surgical procedure that protected my health, spared my baby needless suffering and allowed us to hold our child and say our goodbyes. This is the procedure that would be banned by the legislation you are considering today.'' And she says, ``Please leave these difficult medical decisions where they belong--between women, their families and their doctors.'' So I think you have seen, Mr. President, that the women who have undergone these surgeries wanted these children desperately. Their husbands wanted these children desperately. They were religious, they are religious women. Many of them say they do not consider themselves pro-choice. But what we would do with the Santorum legislation is to take away an option that saved their fertility, saved their health, and perhaps even saved their lives. Why on Earth would we do this? I believe the Feinstein-Boxer-Moseley- Braun alternative is the sane way to go, the appropriate way to go. It keeps these decisions where they belong, and yet it says the only time that an abortion in the late term will be allowed would be when the woman's life is in danger or her health is in danger. So I proudly stand with my colleagues, and I urge my colleagues to be strong, to be courageous. I listen to these ads. I read these ads. They are misleading. They use hot button words, and I have to tell you, if you look at this and you look at these women, this, my friends, is the truth. These women stand and tell the truth. Let us stand with them. I thank you, I say to my friend and colleague, and I yield the floor. Mr. SANTORUM addressed the Chair. The PRESIDING OFFICER. The Senator from Pennsylvania. Mr. SANTORUM. Mr. President, I yield myself such time as I may use. Mr. President, there are so many things I would like to say, but let me just start with one at a time, and that is the pictures the Senator from California put up here of women who have been in situations where they were faced with a fetal abnormality and were convinced, unfortunately, by some genetics counselors and others to have an abortion as their option. Let me show you a picture of someone who wasn't convinced by genetics counselors that that was her only option. That is Donna Joy Watts. I talked about her yesterday. She had the same condition as two of the women that Senator Boxer just described--same condition. Her mother had to go to four hospitals to find someone who would not do what the people that Senator Boxer just talked about did, which is terminate the pregnancy, abort the child. She said no. She says, I'm going to let my child live in the fullness of what God has planned for her. I am not going to end her life. I am not going to make the decision to end her life, like any other mother or father would not, if they were faced with a sick child, kill them. Why would you kill your child? Because your child is sick? Because your child might not live long? Why kill your child? Lori Watts and Donny Watts said, no, we are not going to kill our child. We are going to do what we can. We are going to treat her with dignity and respect like any other member of our family. We are going to love her and do everything we can to support her. So they delivered Donna Joy Watts. The doctors would not treat her. They said she was going to die. They would not even feed her for 3 days. You want to talk about all these doctors who are so concerned about saving lives. Then why are we debating physician-assisted suicide if all these doctors are so concerned about saving lives? People who perform abortions are not principally concerned about saving lives. They are worried about malpractice concerns, particularly if you have a difficult pregnancy. They are worried about a whole lot of other things. But I would suggest, unfortunately, there are too many--if there is one, there is too many--doctors out there who--after she was born, doctors were referring to Donna Joy as a fetus laying there alive, breathing--a fetus. So do not tell me, do not tell me that all these caring, compassionate doctors would, of course, do everything to save a child's life. It is not true. God, I wish it were true. And, unfortunately, bad advice is given out by people who either do not know, have not taken the time to understand what options are available, what technology has been developed, or do not care or just are afraid to deal with the problem. Mr. and Mrs. Watts had to go to four hospitals just to find a place to have her delivered. They would not deliver her. They would abort her. They would do a partial-birth abortion. In fact, they offered a partial-birth abortion, but they would not deliver her. So do not bring your pictures up here and claim that is the only choice. This is not a choice. These are little babies. And they are asking us to help them now. This is not Senator Rick Santorum, nonphysician, speaking. Over 400 obstetricians and gynecologists--and by the way, the person who designed this barbaric procedure that we are debating was not an obstetrician. You hear so much about all these experts. He was not an expert. He is a family practitioner who does abortions, and you can only question as to why he spends all his time doing abortions instead of taking care of families. But that is what he does. He does abortions. This is not taught in any medical school. It is not in any peer review literature. It is not done anywhere but abortion places. It is not done in hospitals that deal with high-risk pregnancies. Ask the question. I will ask it. Can you find a place that deals with high-risk pregnancies that has perinatologists at their unit that does partial- birth abortions? The answer is no, zero. No hospitals do this procedure. If this is a procedure that was so important to be kept alive and so important to be an option, then why don't the experts, the people who study high-risk pregnancies, perform this? If this was the best choice--and the Senator from California suggested that in fact would be the only choice in certain cases. Yesterday, she listed five conditions in which this would be the only choice. Now, if you are a perinatologist, someone who deals in late-term pregnancies, and you are not performing this--you are basically telling the perinatologists that they are doing malpractice because they are not doing this procedure. Let me talk to you about one perinatologist who wrote to me. This is Dr. Steve Calvin, assistant professor, Division of Maternal-Fetal Medicine, Department of Obstetrics and Gynecology, University of Minnesota in Minneapolis: As a specialist in Maternal-Fetal Medicine, I practice with the busiest group of perinatologists-- That is obstetricians who work on high-risk pregnancies and deal with these fetal problems-- in the upper midwest. The busiest group of perinatologists in the upper Midwest. I also teach obstetrics to medical students and residents. I know of no instances when the killing of a partially born baby was necessary to accomplish delivery in any of the five medical situations listed by Senator Feinstein. Senator Feinstein claims that partial-birth abortion is necessary to end a pregnancy in the following five situations: Fetal hydrocephaly, fetal arthrogryposis, maternal cardiac problems (including congestive heart failure), maternal kidney disease and severe maternal hypertension. The first two conditions are significant fetal problems. Hydrocephalus-- And that is exactly, by the way, what Donna Joy Watts had-- is an increased amount of cerebrospinal fluid that can cause enlargement of the head and arthrogryposis includes deformities of the fetal limbs and spine. Significant as these abnormalities may be, they do not require the killing of a partially born fetus. Delivery can be accomplished by other means that are safer for the mother-- I repeat, ``safer for the mother''-- and give the fetus at least a chance of survival. And, I might add, apart from this, some dignity, some dignity to one of our children, one of our humankind, in the case of the family, one of their family. [[Page S4523]] The other three conditions are maternal illnesses that may indeed require ending the pregnancy. But, as with the fetal problems, there is no reason that the treatment must include suctioning out the brain of a partially born baby. One of my biggest concerns is that the opponents of this ban are claiming that this destructive procedure is the only method of ending a pregnancy. Abortion supporters have previously acknowledged that surgical mid-trimester and late- term abortions are more dangerous to a woman's health than induction of labor. Let me read this again. Abortion supporters have previously acknowledged that surgical mid-trimester and late-term abortions are more dangerous to a woman's health than induction of labor. Their concern for women's health and safety apparently ends when there is any threat to unrestricted abortion. Signed Steve Calvin, MD. And I will put up this quote from 400 doctors, over 400 doctors, including the former Surgeon General, C. Everett Koop. I suggest these over 400 doctors, many of them members of ACOG, which is American College of Obstetricians and Gynecologists, also are concerned about maternal health. Many of these are perinatologists, people who specialize in high-risk pregnancies. I would think they would be concerned about maternal health. Many of these doctors are pro-choice and they said the following clearly. While it may become necessary, in the second or third trimester, to end a pregnancy in order to protect the mother's life or health, abortion is never required. Now, they did not say it should be an option. They said never. These are experts. Senator Boxer says, well, Rick Santorum should not be in the operating room. I would not want to be in the operating room. I would pass out if I was in the operating room. The fact of the matter is I am not going to be in the operating room. These folks are. This is what they say. ``Never,'' not sometimes, ``never required.'' It is never medically necessary, in order to preserve a woman's life, health or future fertility, to deliberately kill an unborn child in the second or third trimester, and certainly-- Underline certainly-- not by mostly delivering the child before putting him or her to death. This last line is very important. What is required in the circumstances specified by Senator Daschle [Senator Boxer, Senator Feinstein] is separation of the child from the mother, not the death of the child. In other words, there may be cases where you must separate the child from the mother, you must deliver the baby, either by induction and delivery, vaginally or by cesarean section, but in no case, according to a doctor--and I ask if you can produce one perinatologist who would say that it is necessary, absolutely necessary, to kill the child in order to protect the life and the health of the mother, because I have hundreds who say it is not, hundreds from the finest universities and the finest medical schools all over this country who say absolutely, definitively--and the former Surgeon General of the United States, C. Everett Koop--never necessary, never necessary. Now, we also have to talk about all these cases that we are concerned about the mother's health. We make the assumption that abortion is an option to preserve the mother's health or life. I heard that over and over again. It has to be out there in late trimesters, after 20 weeks. Let me share a couple of statistics that shed some light on this. This was referred to by Dr. Calvin. I want to back it up by the statistics. This is from the Alan Guttmacher Institute. Who are they? They signed letters with NARAL and Planned Parenthood and all these other abortion groups, in support of this procedure, in support of every liberalization you can possibly imagine. They are a pro-choice, some would even suggest pro-abortion group. Here is what they say. The risk of death associated with abortion increases with the length of pregnancy, from 1 death in every 600,000 abortions at 8 or fewer weeks to 1 per 17,000 at 16-20 weeks, and [after 20 weeks, when partial-birth abortions are performed, they are considered late-term abortions after 20 weeks] 1 per 6,000 at 21 or more weeks. It is 100 times more likely that a mother will die than if the abortion were performed in the first 8 weeks. It is 100 times more likely. This is what these people are advocating, performing abortions. Let me throw one statistic on top of that. I will show it. I will read it. ``It should be noted that at 21 weeks and after, abortion is twice as risky for women as childbirth: The risk of maternal death is 1 in 6,000 for abortion and 1 in 13,000 for childbirth.'' So, aborting a child through partial-birth abortion, late in term, is statistically more dangerous to the life of the woman than inducing labor. In other words, not only is it preferential for our society not to kill children who should be given a chance at birth, late, when there may be a chance of viability or just when they should have at least some dignity attached to their life, but it is more dangerous to abort than it is to induce labor or to have a cesarean section. It is more dangerous. The folks who say they are protecting a woman's health and life are arguing for procedures that do the exact opposite. Facts: I know we do not like to talk about facts when it comes to abortion. We like to put up pictures of nice families and warm little babies, that somehow or another, this family is better off because of an abortion. The fact is by having an abortion she was twice as likely to die and not be in that picture. That is the fact. We do not want to talk about that. We want to make sure the right of abortion is paramount among all rights. Because that is what this amendment does--nothing. It lets there be abortion on demand, anytime, anywhere, on anybody. That is what this amendment does. It has no restrictions. It is an exception that is not an exception. It is an exception that says that, while we cannot have postviability abortions except for the health of the mother-- let me tell you what Dr. Warren Hern, who wrote the definitive textbook on abortion, called ``Abortion Practice,'' said. Here it is: ``Abortion Practice,'' Warren M. Hern, from Colorado. My understanding is this is sort of the definitive textbook on teaching abortions. He does second- and third- trimester abortions and is very outspoken on this subject. He does not use partial-birth abortion, I might add; does not see it as a recognized procedure. But this is what an abortionist who does late- term abortions--in fact, has people come from all over the world to have abortions done by him--this is what he said about, not the Boxer- Feinstein amendment but the Daschle amendment, which we are going to debate next: I will certify that any pregnancy is a threat to a woman's life and could cause grievous injury to her physical health. In other words, abortion on demand, anytime during pregnancy. And he believes this. Some would say you are relying on the doctor's bad faith--no. He believes this. And he has a right to believe it. If you look at the statistics, I mean, you know, unfortunately some women do die as a result of pregnancy and, therefore, he could say legitimately there is a risk. Any pregnancy is a risk. It may be a small risk, but it is a risk. And all these bills require, that we are going to hear today, is just a risk. Not a big risk, a risk. So what we have are limitations without limits. What we have is a farce, to try to fool all of you, to try to fool the press. It has done a very good job fooling the press. We have wonderful headlines about how we are trying to step forward and do something dramatic on limiting late-term abortions. Phooey, we have a step forward into the realm of political chicanery, of sham, of obfuscation, illusion, that does nothing but protect the politician at the risk of the baby. That is what is going on here. That is what is going on all day. You are going to hear a lot of it. You are going to hear, ``Oh, we need to do this, we need to protect this.'' Here are the facts as pointed out by their side. I am using their facts. The Alan Guttmacher Institute--their numbers. Even when we debate with their information they cannot refute it. The fact of the matter is, there is no reason to do a partial-birth abortion and there is every reason in the world to stop it. It is a dehumanizing procedure. You wonder why we have a society that just is becoming adrift, that does not know right from wrong, that does not have any sense of justice, that does not have--we do not have any compassion for each other? I will give you a good example why that happens. Because on the floor of the U.S. Senate we are debating a procedure where we can kill a [[Page S4524]] little innocent baby that is completely delivered from the mother except for the head. It is moving outside of the mother, a little baby who has done nothing wrong to anybody, and we are saying, ``You don't deserve to live.'' Give people like Donna Joy Watts a fighting chance. It will ennoble us all. We can look to Donna Joy and her family and say there are parents who showed the best, who showed the best in our hearts, who showed the willingness to fight for life, for things that are at the core of who we are as humanity. Let that spirit come back into American culture. Stop this culture of death and self-centeredness and focus in on life and dignity. What about poking scissors in the base of a little baby's skull and suctioning its brains out is dignifying the human being? You would not do that to a dog or an old cat that you wanted to put to sleep. You would not do it to a criminal who has killed 30 or 40 people. And you do it to a little baby who has done nothing wrong and just wants a chance, for however long it may be--and it may not be long--but, for however long, the dignity of life. The Senator from California talks about the long-lasting pain to the family that we would be imposing on them. What is so painful about looking at yourself in the mirror and saying: ``I have done everything I can to help my little girl or my little boy have a chance at life. I gave them every chance. I loved them as much as I possibly could in the time that God gave us.'' What is so painful about that? I will tell you pain. Facing, every day, that you killed your son or daughter for no reason, that is a pain I would not want to live with. Mrs. BOXER. Will the Senator yield to me for a question? Mr. SANTORUM. Not yet. Mrs. BOXER. Let me know. I will be happy to wait until you are ready. Thank you. Mr. SANTORUM. There are great pains out there when you are dealing with a child that is not going to live. It hurts. And it is troubling. But you will find, not only from my experience but from the experience of doctors who deal with this all the time, that treating your son or daughter with dignity, loving them as much as you can for as long as you can--does not make the pain go away. It never goes away. When you lose a child it never, ever goes away. But it helps you live with it. What we are doing today is, hopefully, banning a procedure and explaining to all of those unfortunate people who may be dealing today, right now, with this situation, that there is a better way for everyone. Let us do the better way. Let us do the right thing. Let us do the just thing for everyone. Mr. President, I yield the floor. Several Senators addressed the Chair. The PRESIDING OFFICER (Mr. Roberts). The Senator from Oklahoma is recognized. Mr. INHOFE. Mr. President, let me just make a couple of comments. The PRESIDING OFFICER. Who yields time? Mr. SANTORUM. I yield 10 minutes to the Senator. The PRESIDING OFFICER. The Senator from Pennsylvania has the time. Does the Senator from Pennsylvania yield time to the Senator from Oklahoma? Mr. SANTORUM. I yield 10 minutes to the Senator from Oklahoma. Mr. INHOFE. I thank the Senator from Pennsylvania for yielding time. I think he made one of the best presentations I have heard on the floor of this body. I want to say that, when he deals with the facts, he is dealing with the facts but, you know, we are also dealing today with perceptions. I tried to make a list of those things I have heard over and over. There is a lot of redundancy on this floor but there are some things that have not been stated. I would like to share a couple of those with you. I am going to do something that is a little unusual, because I am going to read some Scriptures to you. It is not totally unprecedented in this body. In fact, the distinguished senior Senator from West Virginia does it quite often. So I would like to read a couple of Scriptures, just for those who care. Anyone who does not, don't listen. First of all, I have used this a number of times, Jeremiah 1:35 says, ``Before I formed you in the womb I knew you; Before you were born I sanctified you.'' Or the 139th Psalm, no matter which interpretation you use, it makes it very clear when life begins. Then, I was, not too long ago, at the U.S. Holocaust Memorial Museum. I had been to the museum in Jerusalem, and I found the same thing was printed on the last brick as you are going through. This is Deuteronomy 30, verse 19. It said: ``I call heaven and earth as witnesses today against you, that I have set before you life and death, blessing and cursing; therefore choose life, that both you and your descendants may live.'' And, last, I am always concerned that something that is as dramatic and is as significant as this issue is going to go unnoticed; that maybe there are Senators out there who are not really into this issue and they might want to vote the party line, or they might want to say, well, maybe there aren't as many of these procedures out there, so they just really are not knowledgeable of the subject. So, I will read Proverbs 24, 11 and 12: Rescue those who are unjustly sentenced to death. Don't stand back and let them die. Don't try to disclaim responsibility by saying you didn't know about it, for God knows. Who knows all hearts knows yours, and He knew that you know. Mr. President, I was listening to the Senator from Massachusetts who said it does not do any good if we pass this because the President is going to veto it anyway. But I suggest to you that the President may not veto it, and if he does veto it, maybe some people will come over who were not here a year ago on this side of the aisle. Ron Fitzsimmons who just last year insisted that the number of partial birth abortions were a relative handful now admits ``I lied through my teeth.'' He was lying. So if the President is predicating his decision to veto this ban on the basis of what was told to him by Ron Fitzsimmons, there is every reason he could turn around on the issue. I suggest also that we are talking now not just about a procedure, but a culture. I have a very good friend by the name of Charles W. Colson who gave these remarks upon winning the prestigious Templeton Prize for contribution to religion. Listen very carefully. He puts it all together, not isolating one procedure or one issue: Courts strike down even perfunctory prayers, and we are surprised that schools, bristling with barbed wire, look more like prisons than prisons do. Universities reject the very idea of truth, and we are shocked when their best and brightest loot and betray. Celebrities mock the traditional family, even revile it as a form of slavery, and we are appalled at the tragedy of broken homes and millions of unwed mothers. The media celebrate sex without responsibility, and we are horrified by plagues. Our lawmakers justify the taking of innocent lives in sterile clinics, and we are terrorized by the disregard for life in blood-soaked streets. I think that kind of puts it into a context, which we are now approaching, that this is not just a normal type of an abortion. I have a great deal of respect for one of the most intellectual Members of this body. It is Senator Patrick Moynihan from New York, who is a self-proclaimed pro-choice Senator. He said: And now we have testimony that it is not just too close to infanticide, it is infanticide, and one would be too many. This is where we get into the numbers game. I heard it said on this floor many times that we are talking about maybe 1 percent or maybe talking about those that are in the ninth month may be an infinitesimal number. But, in fact, one is too many. It was said on the floor that we may be only talking about 200 lives being taken during the normal delivery process. That is when a baby is given a natural birth and, yet, they take the life by using this barbaric procedure. We have all kinds of documentat