Further Discussion of Partial Birth Abortion Ban Act (Pt. 8)

Mr. SANTORUM. Mr. President, having now gone through the process of trying to pass a piece of legislation that was found unconstitutional by the Court, let me be very clear, it is not my intention to try to pass another piece of legislation that is going to be unconstitutional. If the Senator is suggesting that my motive here is to pass a piece of legislation and pull one over on the Court, let me make very clear I have no intention of trying to pull one over on anybody. This Court is not a friendly Court on this issue.

I realize I have, and the people who have worked on the drafting of this legislation have, a heavy burden to carry. So I am not being cute. I am not being deceptive. I am simply trying, to the best of my ability, to adequately and sufficiently describe a procedure to include that procedure and exclude all others. Because that is what the Court asked us to do—to define this procedure so specifically as to exclude others.

The Court went through great detail, talking about other procedures where a child could still be alive and portions of that child could be outside the mother. They could be doing another form of abortion and an arm or a leg or some portion of the body could go outside of the mother in the process of killing the child in the womb. So they said the original definition was not clear enough. So we came back and made it crystal clear. We said the person performing the abortion:

.    .    . deliberately and intentionally vaginally delivers a living fetus, in the case of head-first presentation the entire fetal head is outside the body of the mother.

You do not do any other procedures where you present the head. You don't do it. I don't think any doctor in the land would say you do any of these other abortions where you present the head. It is just not done.

Second:

.    .    . or in the case of breech presentation, any part of the fetal trunk past the navel.

So it is not a hand or a foot or an arm. It is the legs, the feet, the buttocks, and the lower part of the abdomen is outside of the mother, and in most cases the arms—the hands and arms.

That is a pretty clear definition of this procedure and cannot be—from all of the descriptions we have received in testimony—confused with any other procedure.

The AMA board of trustees said:

The procedure is ethically different from other destructive abortion techniques because the fetus, normally 20 weeks or longer in gestation, is killed outside of the womb.

These other procedures are done inside the womb. That doesn't mean maybe a portion of the baby may be outside. But it is killed by the doctor inside the womb.

The "partial-birth" gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own baby.

This is the American Medical Association. They recognize that this is different. Courts say they may recognize it is different, but you haven't adequately defined it. Now we have adequately defined it. We have said the entire baby, basically, except for the head is outside of the mother. That is a pretty clear definition.

This idea that it is somehow vague and we have not addressed that issue I reject. We have addressed that issue. We have gone through the health exceptions, the Senator from California did. And I will not argue against myself. I think we have been successful in stating that we have rebutted the health exception by the stipulations that we have made in the bill.

Let me remind Members this is a vote to excise the underlying bill, eliminate it, substitute for it, strike it, and insert existing law—nothing, no change. This bill would have the effect of being on the floor of the Senate and have no meaning whatsoever. It simply is a restatement of Roe v. Wade. If you are for eliminating this procedure, you cannot vote for this amendment. It doesn't even try to do anything else. At least the Durbin amendment was a substitute. You eliminated the partial-birth. You could make the argument that we were eliminating all postviability abortions.

The Senator from California says this wouldn't change the law one bit—not one bit. All you are doing is killing the underlying bill and replacing it with nothing. That means you are voting against the bill.

I hope a good, strong majority of Members will vote for this bill and not simply strip this bill and replace it with nothing because that would be a pretty clear sign they are not in favor of the bill.

I yield the remainder of my time.