Further Discussion of Partial Birth Abortion Ban Act (Pt. 5)

Mr. SANTORUM. Madam President, to address the letter the Senator from Michigan read, I want to assure the young lady who wrote that letter to the Senator from Michigan—and it is a very compelling story, one that has my sympathy, certainly—my heart goes out to her and her family for what she had to go through. Let me, please, assure her it is crystal clear from the language in the bill that what happened to her is not offered under this legislation. I will read it:

The term partial-birth abortion means an abortion in which the person performing the abortion deliberately and intentionally vaginally delivered the living fetus.

Here is the key operative language:

delivered the living fetus for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus.

The doctor in that case, first off, did not perform an abortion, did not deliver the child for the purpose of killing the child. So it is clear beyond a shadow of a doubt—and we have discussed this at hearings and on the floor multiple times—there are obviously times, unfortunately and tragically, where a birth is either induced, or a natural delivery where complications arise, and for the life of the mother the pregnancy is terminated. That is obviously a horrible and tragic situation. That is clearly outside of the bounds of this definition.

I just assure this young woman who wrote the Senator, and maybe even met with the Senator from Michigan, her case would not under any circumstances—if you are going through a procedure for the intention of delivering the child—this is for a person performing an abortion. This doctor was performing a delivery of a child who had complications, which resulted in having to terminate the pregnancy to save the life of the mother. That is clear in two cases. No. 1, they weren't performing an abortion. They didn't deliver for the purpose of performing an act that the person knows will kill the partially delivered fetus. No. 2, there is a life-of-the-mother exception in the bill. So in either case—predominantly the first case—the case the Senator from Michigan read—

Ms. STABENOW. Will the Senator yield for a moment?

Mr. SANTORUM. Yes.

Ms. STABENOW. I wanted to clarify that, in fact, given the situation, they were performing an abortion to do that. That was the intent of the procedure. It was an abortion. Additionally, I say the mother's life was not in jeopardy, but her health and future fertility were in question. There were a number of issues relating to her health as well.

I just indicate, with all due respect, I think the issue here, when we are debating medical procedures on the floor, really gets to the point about whether or not we in the Senate should be debating medical procedures. Earlier, there was a debate about whether a child which was born with a brain outside of its head was in fact to be categorized as a disabled child. All of these issues we are debating here as non-medical personnel, we don't know the facts or what happened in any individual case. So that would be my concern.

Mr. SANTORUM. Maybe I wasn't listening as attentively as I should have been. Maybe I heard it incorrectly. I am happy to review what the Senator read. I apologize if I got that wrong.

In either case, I wanted to clarify we are not talking about cases where there are not abortions being performed.

With respect to the statement that we should not be making these decisions, with all due respect, we make decisions here about everything under the sun—things that 50 years ago who would have thought we would be debating. To suggest we don't have the technical expertise to determine what is a brutal, gory, horrendous procedure and ban it—we make illegal in this country lots of things we find to be morally objectionable and offensive. I think we have every right—in fact, we have a duty to speak on this. To suggest we in the Congress don't have the right to make these decisions, that we have to give it up to the courts—unelected people, just give it up to them; I don't need to be ruled by a bunch of judges.

People elected me and the Senator from Michigan and everybody else in this Chamber to go forward and to make decisions about issues of importance to the people of our States. That is what we are going to do.

Ms. STABENOW. Will my colleague yield one more moment?

Mr. SANTORUM. I will be happy to yield.

Ms. STABENOW. I interject, we are not asking that this right be given up to the courts; we are asking that these decisions be left up to a woman, her family, and her faith.

Mr. SANTORUM. I appreciate the Senator's comments, but in all due respect, she is leaving it up to the courts because the courts have made this decision and the courts have dictated the law of the land. They have proscribed in elected representatives the right to have any impact on that. We had that debate just a few minutes ago with Senator Harkin and his amendment.

The courts have completely trumped the legislature. They have decided to take an entire body of law away from us and the State legislatures. I believe the Senator was in the State legislature at one point. That is my recollection. They have taken it away from the State legislatures, taken it away from the Congress, taken it away from people in our democracy, in our Republic, and decided to hold it up across the street where nine, at the time men, decided to take the law into their own hands by creating a right that did not exist. It just did not exist. I do not know how you say this. All through time, all through the history of this country, this right was there and we did not find it. All of a sudden, we found this right in the middle of the Constitution in this liberty clause.

As I said before, they took the liberty clause of the Constitution, and within that clause they found this new right, this new right that took liberty and put it ahead of life, even though our Founders put life ahead of liberty because that is what our Creator did. We are endowed by our Creator with life, liberty, and the pursuit of happiness. Not liberty, life. You have to have life to enjoy liberty. What the Supreme Court did was put some person's liberty ahead of another person's life. That is fundamentally wrong, I do not care what your feeling is on abortion. It is wrong, and I suggest the Senator from Michigan and both Senators from California would agree with me that when the Supreme Court did that in the Dred Scott case, when they put the liberty of the slaveholder ahead of the life of the slave, the Senator from Michigan I am sure today would stand up and say: That is wrong; you cannot put someone's liberty rights ahead of someone's life rights.

What argument do you make in the case of abortion? Because that is it exactly. Remember, the liberty clause of the Constitution is the genesis of a right to an abortion. The liberty clause is the genesis of the right to an abortion, and it trumps the life of this other human being. That is the fact.

You can argue that it is a different case—people have—that somehow this child inside the womb is not a human being. But it is. It is genetically human. It is alive. It is a living human being. You can say in this case it is a special case. That is what they said in the 1850s, right here on this floor. They said it was a special case—a special case because, you know, these black people, they are not like us. These little children, they are not like us. But that is what they did in the 1840s and 1850s.

They put in the Dred Scott case that the liberty rights of the slaveholder trump the life rights of the slave. The slave was property. The child in the womb, under the Supreme Court Roe v. Wade decision, is property. Look at this case with open eyes. Look at this case and what it does, the history that is being repeated in the world today, and you wonder why people still march in the streets. It is the same reason—the same reason. It is the same case. It is Dred Scott, and for some reason we just choose not to see it.

What does this amendment do? It affirms Dred Scott. If you like Roe v. Wade, vote for this amendment because this is the law right now. Basically, the Harkin amendment makes no change. It takes the partial-birth statute, wipes it out, and just says: The law of the land is the law of the land. OK. We have accomplished nothing here. We have accomplished nothing over the last 4 days.

If you eliminate the underlying statute, which is the partial-birth abortion bill which we believe is constitutional, you wipe it out, all you do is restate the law, and that is what the Feinstein amendment does. So if you are for the partial-birth abortion bill and vote for this, do not go home and say you are for the partial-birth abortion bill because you are not because this amendment excises the underlying bill and replaces it with a restatement of Roe v. Wade. That is what this amendment does. Nothing else.

I suspect the Senator from California would agree with that. I do not think I am mischaracterizing her amendment whatsoever. It restates Roe v. Wade that says you cannot have abortions postviability except to protect the life or health of the mother. That is what Roe v. Wade said; that is what this amendment says.

In practice, of course, health means anything, so there is no restriction at all. In practice, this amendment will mean the same thing: There is no restriction at all.

With respect to the Durbin amendment—again, I said in all candor to him and I will repeat it on this occasion—at least I believe the Senator from Illinois was trying to find some restriction, was trying in a rather painful and I would argue ultimately failed way to find some movement, some attempt to reduce or put some stricture on postviability abortions. I think he failed in doing so, but I think he made an honest attempt to try. This does not even attempt to try. This basically restates Roe v. Wade.

Again, as far as I am concerned, this is the vote on the bill. If you vote for this, you basically vote to kill the bill and replace it with nothing. What you replace it with, again I would make the argument, is the Dred Scott case. That is what you replace it with. You replace it with putting people's liberty rights above people's life rights.

I repeat over and over, there is a reason the Founders put the ordered rights in the place they did. I will quote again:

    .    .    . they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

    I think everyone in this Chamber would agree, you cannot pursue happiness if you are not free, and you cannot enjoy freedom if you are not alive. So, of course, you cannot put freedom ahead of life. You cannot put someone's freedom ahead of someone's life. That is not right. That is out of order.

    As I said before, we did it once before in this country and we paid a horrible price, and we have left a horrible legacy that has stained this country. I would argue we are doing the same thing. We are repeating the failures of history. For some reason—as many people did in the 1840s and 1850s, good upstanding—in the movie "Gods and Generals," people have objected to the fact all these people were God-fearing, southern generals and others; they were portrayed in almost a good, positive frame that these are good people; how can they believe that someone's liberty rights trump someone's life rights? How could they believe, these good, God-fearing people—these are faithful Protestants, Catholics, and Jews—how could they believe that? You just scratch your head and say they must have been bad people.

    I do not think they were bad people, and I do not think the people on the other side of this issue are bad people. I think they just got it wrong. I think they do not understand the lessons, the wisdom of the people who wrote our founding documents, the wisdom of understanding basic rights and the ordering of those rights to give meaning to those rights because if you misorder the rights, they have no meaning. If you put happiness before liberty so that your right to happiness trumps my right to freedom, well, then, I am your slave. I am the object of your happiness for your own benefit. That is not fair. If you put my happiness in front of your life, well, obviously no one is going to say that is fair. And the same thing, if you put my freedom to do what I want in front of your right to life, most people would say that is not fair. But that is the law of the land. That does not say this is not a difficult issue. That does not say there are not cases that could pull at your heart strings and that the decisions people have to make are tough decisions. They are. But that is why—

    Mrs. BOXER. Will the Senator yield for a question?

    Mr. SANTORUM. In a moment. But that is why happiness is at the end. Because you know what, life and liberty are all about tough choices sometimes, all about making decisions which are not necessarily easy, and happiness results at the end, hopefully. We have to make a lot of tough decisions to get to that point. It is of lower priority. There are higher, more noble things than the pursuit of happiness. That is what our Founders understood. These basic rights, as painful, as troubling, and as difficult as they are to preserve, are important because without them there is no hope of freedom, there is no hope of happiness, there is no hope of prosperity. And so it is the case with the unborn. There is no hope of liberty, there is no hope of happiness, because we have misordered our priorities and rights in this country.

    I know that is a tough message, and I know it is not a popular thing to hear, but I believe in my soul this is corrupting the body of this country, as slavery corrupted the body of this country for 200 years, and then some. We have an obligation to face history and to face the reality of what we are doing, and all we are asking is to end one little brutal procedure, one little insult to humankind. Three inches away from that legal status that would deem this person back in order, back in order where their life counts more than somebody else's liberty; 3 inches from coming under those founding documents that give them rights. But they might as well be 3 miles, for their life is ticketed for extermination in such a brutal fashion, in the hands of a doctor who was taught to heal.

    We have an obligation to end and stop evil, even if it is just a little thing, even if it is only a few thousand times a year in this country. It almost boggles my mind to think that 3, 4, 5, 6, whatever thousands of these that occur a year is considered to be rare and infrequent. I say to my colleagues, if they are for the underlying bill, they cannot vote for the Feinstein amendment because it simply terminates this bill and replaces it with nothing, replaces it with current law.

    No one who votes for this can say they are for the partial-birth abortion ban, because they are not. They are for eliminating that ban and replacing it with current law, a reinstatement of Supreme Court law, which is nothing as far as doing anything about this brutal procedure.

    I am happy to yield. Can I yield on the Senator's time if that is okay?

    Mrs. FEINSTEIN. May I ask, first, how much time we have remaining?

    The PRESIDING OFFICER. The Senator from California has 10 minutes 36 seconds. The Senator from Pennsylvania has 25 minutes 23 seconds.

    Mr. SANTORUM. I will yield on my time.

    Mrs. BOXER. I appreciate that. I have two questions for the Senator. Is the Senator aware that 78,000 women a year around the world die of illegal abortions? And since he stated that the other figure I put out is false, I went back and got the World Health Organization number. Is the Senator aware of this?

    The second question I have is: The Senator, in having a debate with Senator Clinton, which I thought was probably one of the more instructive things that has happened this afternoon, talked eloquently about the rights of the disabled, and I wondered why the Senator, in the two last votes that we had, voted against the Individuals with Disability Education Act, IDEA funding, which would fund education for children with disabilities.

    Mr. SANTORUM. As the Senator knows, I have been one of the strongest advocates for increase in funding for the disabled. I was one of the people who worked on this side of the aisle to try to get a dramatic increase. When I came to the Senate, IDEA was funded at 5 percent. It was promised at 40. One of the things I said on this floor and said repeatedly across my State, it was my objective to get it to where it was promised in 1975, which was 40 percent.

    One of the concerns I had with the actual reauthorization of the legislation was not that we should not be putting more money in to help people with disabilities through the educational process. I disagreed with some of the substantive changes within the law, particularly when it came to how we—

Mrs. BOXER. This is appropriations. These are two votes.

Mr. SANTORUM. In that case, you are talking about the mandatory spending issue, and I do not believe—

Mrs. BOXER. No.

Mr. SANTORUM. That is my understanding.

Mrs. BOXER. I appreciate the Senator has not seen it.

Mr. SANTORUM. I have not seen it. I know I voted against mandatory spending for IDEA, but I voted consistently for increases.

Mrs. BOXER. These are two votes for 2 years in a row.

Mr. SANTORUM. As the Senator from California knows, since Republicans took control of the Chamber in 1995, IDEA funding has gone up from 5 percent to, I believe, about 15 to 20 percent right now through the initiative of many of us who saw this as a real scourge on the Congress for mandating something, saying we would fund it, and then we do not.
I do support it. I may not support the level of increases. As the Senator knows, when a hefty increase is supported, then somebody comes along and tries to double or triple that and blow a hole in the budget. I think my record is clear that I voted for responsible and steady increases to get us up to the 40 percent, and I have made a pledge to do so.

Mrs. BOXER. I ask unanimous consent that the record of these votes be printed in the RECORD.

Mr. SANTORUM. I have no objection.

Mr. SANTORUM. I want to counter a couple of other things. The Senator from New Jersey says I keep referring to the Bergen County Record, and he made a statement that has been proven false. I can say that the Bergen County Record has never printed a retraction to the story and claims to this day that their investigative reporter was not wrong. So there is an honest disagreement. The paper stands by their story, has not printed a retraction, and has said publicly that they have no intention of doing so. So just because Senator Lautenberg found somebody who disagrees with the story does not mean it is not true.

I want to go, finally—and then I will be happy to yield back to the Senator from California—to what this health exception means.

Under Doe v. Bolton, the health exception means—and I am going to read the case. "Health" was broadly defined.

Medical judgment may be exercised in light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.

So just understand what this amendment does. It strips out the language of the partial-birth abortion ban, replaces it with the language basically from Doe v. Bolton, which is the current law, which is no exceptions. In other words, there are no limitations under current law, by the courts, for any abortion at any time. There simply are no limits.

So that may be where many Members of this Chamber are, and I respect that. I disagree with them, but I respect that. To simply restate the law and then claim that one is for the partial-birth abortion bill, I think, falls hollow on the Chamber and hopefully we can defeat this amendment.