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Partial-Birth Abortion Ban Act of 2003 Conference Report - Continued

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Location: Washington, DC

PARTIAL-BIRTH ABORTION BAN ACT OF 2003 CONFERENCE REPORT—CONTINUED

Mr. SANTORUM. I yield myself such time as I may consume.

Mr. President, I have listened to this debate on both sides, and I continue to hear a lot of the same things. I just think it is important to set the record straight with respect to what many have heard today.

First, the Senator from California, Mrs. Boxer, has objected to my using the term "killing" the child when describing the diagrams of the partial-birth abortion. So I wanted to make sure I was not using terms that were inflammatory or inaccurate.
She said I was referring to the fetus as a child instead of the fetus. I looked up the definition of fetus: "An unborn child." So
I don't think referring to a fetus as a child is incorrect when the definition of a fetus is "an unborn child, from the third month until birth." This child is obviously in excess of 3 months into gestation, so it is obvious I am using a correct term.
She objected to me using the term "killing." I will quote some people in the abortion movement to justify my using of this term. This is from Faye Wattleton, former president of Planned Parenthood:

I think we have deluded ourselves into believing that people don't know that abortion is killing. So any pretense that abortion is not killing is a signal of our ambivalence, a signal that we cannot say, yes, it kills a fetus, but it is a woman's body and ultimately her choice.

So say even those in the abortion movement.

Judy Arcana, a pro-choice author and educator, said:

Sometimes a woman has to decide to kill her baby. That is what abortion is.

I understand how people want to avoid talking about the baby, the child, the fetus, or whatever term you feel most comfortable using. It is what it is. It is a human being. I understand we like to use terms that don't refer to the human being.
In fact, in all the debate we have heard today on the other side, we hear this concentration and talk about the woman and the right to choose. We hear very little discussion about what the choice is all about. I know most Americans like choices and they like the right to choose. But I think it is important that people know what the choice is all about, what we are choosing.

What we are choosing here is to kill a human being. Yet many on the other side just don't want to consider what is being chosen here. What many on that side like to think is that we are choosing a medical procedure. The Senator from New Jersey earlier referred to it being similar to the removal of a cancerous intestine. Maybe some people look at babies as this sort of cancer or this thing that they don't want anymore, that somehow affects them in some way. But I think it is important for us, if we are going to make decisions that impact millions of lives, to face up to what we are doing and we don't try to couch it in terms that sound nice, that sound American—words such as "freedom" and "choice" and words such as that.

What we are choosing is to take away a fundamental right of every person in America, and that is the right to life. So, yes, I will use the term "killing" because that is exactly what it is, the extinguishing of a life. It is a child, it is a baby, an infant, a fetus, a living human being.

Second, the Senator from California has suggested that this is not a medical term. Well, I had my staff run and look it up in Webster's Medical Dictionary. In Webster's, the term "partial-birth abortion" is in fact defined:

Abortion in the second or third trimester in which the death of the fetus is induced after it is passed part way through the birth canal.

As to this idea that it is not a term used, it is in the dictionary. It is interesting that the Senator from California would say that this is not a medical term, that this doesn't exist. Yet she has repeated many times that this thing that doesn't exist is a great threat to women. If we abolish something that doesn't exist, somehow or another this is a horrible thing we are doing to women. That doesn't necessarily make sense to me. Then she goes on and says this thing that doesn't exist—she claims it doesn't exist—is medically necessary at times. I have a hard time grappling with this argument in the alternative. First you argue it doesn't exist, and then it does exist and it is medically necessary.

The Senator from California, last month, put in the RECORD statements from Physicians for Reproductive Choice and Health, and in this letter in the Congressional Record, they say:

So-called partial-birth abortion does not exist. There is no mention of the term partial-birth abortion in any medical literature.

That is not true.

Physicians are never taught a technique called partial-birth abortion; therefore, they are medically unable to define the procedure. We know that there is no such technique as partial-birth abortion.

She makes the argument that it doesn't exist, and then she argues that it is necessary. I don't know how you can have it both ways. It either does exist and it is necessary or it doesn't exist and it is not necessary. We find interesting arguments that don't seem to hold up upon closer examination.

Another thing that doesn't hold up under examination is the repeated attempts by those who oppose this legislation to misinform the public as to what it does. I am not only going to go through the most recent example of this, but the chronology of events around this legislation, which started with Charles Canady in the House of Representatives and Bob Smith in the Senate, who did an outstanding job.

I remember when Bob first came to the Senate floor. He was ridiculed as being this extreme person who would bring this medical procedure to the floor and it was an outrageous thing for a Senator to do. He had the courage to stand up for his convictions and follow through. But I remember at hearings, they were saying this procedure didn't exist, first, and, second, the anesthesia given to the mother would kill the baby, and that this was only done on mothers who were in a position where the baby was badly deformed or the mother's health was in danger, and it was only done a few dozen times a year.

Every one of those things I have mentioned has been debunked. They are simply not true. Yet here we are just days away from passing this bill again in the Senate for the third time, but the fourth time we have debated, and we see a statement by Planned Parenthood last month that says:

S. 3 is a bill to outlaw the medical procedure used primarily in emergency abortions.

"Primarily in emergency abortions." Let me, again, without reading the comment below, state this is a 3-day procedure.
This is a procedure where the woman presents herself to the abortionist, and I say abortionist because this procedure is only done in abortion clinics. It is not done in hospitals, as this organization that Senator Boxer submitted for the RECORD said. They don't teach this procedure in medical school. It was designed by an abortionist for the convenience of the abortionist.

She presents herself to an abortionist who gives her something to help dilate her cervix and tells her to return 2 days later.

Can you possibly imagine someone in an emergency situation presenting themselves to a health care professional who is in an emergency situation because of her pregnancy, who is given something to dilate her cervix and sent home for 2 days?

On the face of it, it makes no sense. But yet they persist in spite of the fact that Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers, is quoted in the New York Times on February 26, 1997—1997, not February 26, 2003, 2002—6½ years ago:

Mr. Fitzsimmons recalled the night in November 1995, when he appeared on "Nightline" on ABC and "lied through my teeth" when he said the procedure was used rarely and only on women whose lives were in danger or whose fetuses were damaged.

"Lied through my teeth" in 1995, he said, on "Nightline." But in 1997, he came clean. He said:

In the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along, Mr. Fitzsimmons said. The abortion rights folks know it, the antiabortion folks know it, and so probably does everyone else, he said in the article in the Medical News, an American Medical Association publication.

They knew it. In 1997, they knew this. A month ago they were still saying it.

I don't mind having a good honest debate, and the Senator from California, Mrs. Feinstein, brought up legitimate legal issues, a proper, good debate, but when the organization that is principally behind the stopping of this bill a month before this bill gets presented continues to try to misinform the American public, I think you have to ask yourself a question as to the credibility of that organization and the credibility of their case.

There are a couple other comments that were made on which I have to set the record straight. The Senator from California,
Mrs. Boxer, said this abortion procedure needs to remain legal out of respect for women and "because it gives the fetus dignity."

Anyone who looks at this abortion procedure and suggests that pulling a child feet first through the birth canal at 20 weeks of gestation, who otherwise would have been born alive, and have a pair of scissors thrust in the base of their skull and have their brains suctioned out is an act of dignity I think has to rethink what the word "dignity" means. To treat any human being, to treat any living thing in that fashion is insulting to that life. It certainly is not an act that I would call a dignified act or an act that shows respect for that child.

A lot has been made by both Senators from California and others about the need for a health exception. This gets in to the meat of this debate with respect to its constitutionality. The Court did state that there were two reasons for the Nebraska law on partial-birth abortion to be overturned. One was that it did not have a health exception that was required by Roe v. Wade.

Step back and think about this debate in a larger context. I don't think most Americans, if I can put up the last chart of the diagram of the procedure—I don't think most Americans contemplate that Roe v. Wade covers abortions done late in pregnancy by healthy mothers with healthy babies who would otherwise be born alive being treated in such a brutal and barbaric fashion. I don't think most Americans see the scope of Roe v. Wade as including that type of abortion but it does.

That is really the wake-up call for America here: That Roe v. Wade is not what they claim it to be. If it is later in pregnancy, it is mothers who have health issues or the child has health issues. No, that is not what we are talking about here. We are talking about there needs to be a health exception, according to this court, for a procedure done late in pregnancy on healthy mothers with healthy babies treated in a brutal fashion such as this. I don't think most Americans would have said: Gee, we need a health exception here or Roe v. Wade covers this issue, but that is what they say; that based on the evidence they compiled in the Federal district court in Nebraska, the court examined the evidence and determined that a health exception was necessary, based on the evidence that was submitted at trial.

We believe strongly the evidence submitted at trial was incomplete; that there has been a lot of evidence submitted to the Congress and in publications that is counter to what the Nebraska district court found, and that the overwhelming weight, and I would argue the dispositive weight, of evidence presented to this Congress, which is a finder of fact just as the district court is, is that it is never medically necessary.

The Senator from California has said the American College of Obstetrics and Gynecology has written a letter saying that it may be medically—that is the term, "may be medically necessary." Yet in the letter she has entered into the RECORD, which she has entered many times before, they do not present one example of a case in which it would be medically necessary.

For 8 years I have stood on the floor of the Senate and have asked for such a case from the American College. To date, the American College has never replied to my request. They have not sent one case to be submitted into this RECORD as to where this may be medically necessary actually is medically necessary.

One has to wonder the validity of the statement that it may be medically necessary if they can't find a case in fact where it is. Cases have been submitted by both Senators from California where some obstetricians have said this was medically indicated in this case. For every 1 letter that has been submitted, we have had 6, 7, 8, 9, 10 letters from maternal fetal medicine specialists—they are specialists in high-risk pregnancies—perinatologists who say not only aren't those cases good cases but they are contraindicated.

It is bad medicine. So we do not really have any uncontrovertible case where it is medically necessary. I think that is important for the Court to consider. I think it is also important for the Court to consider that the Congress, which has had multiple hearings of fact, unlike the Court, was able to make a determination and have a vote overwhelmingly in both the House and Senate that these facts are as we say they are. I believe we have a right as a body to make that determination.

We hope, just as we listen to the Court in matters of law because that is their responsibility, that as finders of fact they would listen to what we come up with. I know many on the Court think it is a one-way street. They just tell us what they think and we have to do whatever they tell us and we have no input into what the Court decision is.

That is not the way our Framers envisioned it. I found it sort of humorous that the Senator from California said the Framers did not envision the Congress amending the Constitution by legislative findings. I will assure the Senator from California that our Framers did not envision the Supreme Court amending the Constitution by judicial fiat but they do. Roe v. Wade is
a case in point.

So there are lots of things our Framers did not envision, I say the most grotesque of which is the Court activism that we have seen across the street.

With respect to this health exception, it is overwhelmingly clear that it is never medically necessary.

Why do we go to such length in saying that a health exception is not medically necessary? Well, because if we had a health exception to this bill—and many have suggested, just put in a health exception. I mean, are you not concerned about women's health?

Well, I do not think anyone is not concerned about women's health. In fact, the evidence presented is overwhelming that this procedure is a riskier procedure than other abortion procedures and is never medically indicated. So if one looks at the overwhelming body of evidence and they are concerned about women's health, they would be for banning this procedure because it is never medically indicated. It is done only for the convenience of abortionists and is, in fact, unhealthy. So if one's concern is women's health, then they would be for banning this procedure.

The interesting point is, why are they pushing so hard for this health exception and why are we resisting it so much? Well, what does the health exception mean? This is the little secret that to those who have not followed the abortion debate may say, what is the big deal? Why do you not put in a health exception? That sounds reasonable.

The problem with the health exception is that it is so broad an exception it swallows up the bill because a health exception—when Roe v. Wade was decided, there was a companion case decided called Doe v. Bolton, and in that case health was defined as: Medical judgment may be exercised in the light of all factors: physical, emotional, psychological, familial, and the woman's age relevant to the well-being of the patient. All of these factors may relate to health. This allows the attending physician the room he needs to make the best medical judgment.

So over time what this has been interpreted to mean is health means anything: emotional, physical, spiritual, psychological, whatever it is, stress, anxiety. Some have even brought it to economic concerns.

Health is an exception that swallows the rule. So as long as the doctor says the woman obviously exhibited anxiety, stress, discomfort, she had a headache or whatever, it does not matter. It does not say severe. It just says anything. So what this provision did, and that is what the Court wanted to do, was to give absolute latitude to the doctor to do whatever the doctor wanted to do in consultation with the patient. So the health exception is no exception at all. It is a barred antiprohibition. So understand that the health exception bars the bill, stops the bill from having any effect. So that is why we resist.

In our case, we think we are outside this health exception because it is actually unhealthy for the woman and it is never medically necessary.

Before I move on to the next topic, I want to go through some of the health risks as outlined—we have a series of letters which I will submit for the RECORD—that partial-birth abortion poses serious health risks for women.

First, as I mentioned before, the physician has to dilate the cervix a couple of days before the abortion is performed, creating a risk, according to several physicians, to an incompetent cervix, a leading cause of future premature deliveries or infection, and is the main cause of subsequent infertility.

As we can see, the baby is brought in feet first through the birth canal. When they reach in to pull the baby out of the uterus—reaching into the uterus to pull the baby's feet through the cervix is a dangerous procedure, risking the tearing of the uterus. It poses an increased risk of uterine rupture, abruption, amniotic fluid embolus and trauma to the uterus as a result of converting the child into a footling breech position. Grabbing the baby's legs could perforate the uterus, which could result in severe hemorrhage and possibly a hysterectomy. Then the procedure that follows where the Metzenbaum scissors are placed in the base of the baby's skull to kill the baby and puncture the baby's skull, putting the scissors into the baby's brain is a partially blind procedure. As we can see, the physician has no way of seeing where those scissors are entering the baby or if they are even entering the baby.

This blind procedure with a sharp instrument may expose the uterus to sharp bone shards, bone shards from the baby's skull upon the puncture. They may lacerate different parts of the woman's body and cause hemorrhaging and could necessitate a hysterectomy to save the mother's life. This is not a riskless procedure. This is a risky procedure.

I reiterate, this is not taught in medical schools. There are no peer review journals published that suggest this is a superior way, much less an appropriate way, to deal with an abortion. There are no studies that have been done, that are controlled in nature, to show that this is a proper procedure. This is a rogue procedure. It is medically unhealthy and it is medically unnecessary.

Both Senators from California talked about their recollection of the pre-Roe v. Wade days. The Senator from California,
Mrs. Boxer, suggested the debate we had a month ago with respect to the number of maternal deaths as a result of abortion prior to Roe v. Wade were women in all States—in some States, abortion was legal, not in all States—that women as a result of that had higher incidents of maternal death. The Senator from California continued to indicate that there were some 5,000 deaths per year as a result of abortion not being legal everywhere in the United States.

I entered information in the RECORD from the Bureau of Vital Statistics, including more recently the Centers for Disease Control, suggesting at the time of 1972, prior to the decision being made, there were 83 maternal deaths. The Senator from California suggested that is only because the only reported deaths were States in which abortion was legal.

That is not the case from the statistics. Had that been the case—it is not, according to the information we have gathered, but had it been the case, then why were there 1,231 reported deaths from abortion in 1942, where abortion was not legal in any State in the country?

So if her information was correct, if they were only reporting cases in States in which abortion was legal in 1942, there would have been no deaths because there were no States in which abortion was legal. But in fact they were reporting from States where abortion was legal and illegal.

What you saw from 1942 down to 1972 was a decrease, from 1,231, almost straight line down to 83 deaths in 1972. Why?
Because medicine improved. Antibiotics, first and foremost, is probably the principal reason, because of infection, but there were a whole variety of reasons. The improvement of medical science is why those numbers continued to decrease. So the idea that somehow or another there were thousands of women dying prior to Roe v. Wade is just not backed up by the facts.

We have an obligation; as much as we would like to paint a picture for the eyes particularly of young people who didn't live then, as much as we would like to paint this picture to young people to convince them of the justice or righteousness of the right to abortion, that things were really bad, that women were dying in droves, there was a horrible situation prior to Roe v. Wade, we cannot. You have to deal with the fact that was not the case with respect to the amount of maternal deaths.
There may be other factors that you consider and you are welcome to make the arguments about how people felt at the time. That is fine. But you cannot play with the facts to present a case that is not true.

I want to quote Bernard Nathanson who was, at the time of 1972, an abortionist. He says:

How many deaths were we talking about when abortion was illegal? In N.A.R.A.L.—

A group he helped found, the National Abortion Rights Action League—

we generally emphasized the drama of the individual case, not the mass statistics, but when we spoke of the latter it was always "5,000 to 10,000 deaths a year." I confess that I knew the figures were totally false, and I suppose the others did too, if they stopped to think about it. But in the "morality" of our revolution, it was a useful figure, widely accepted, so why go out of our way to correct it with honest statistics?

This is a very serious issue. I would argue it is the greatest moral issue of our time. I think we have an obligation to use honest statistics, at least honest statistics—honest statistics, honest cases. The Senator from California brought up the case of Vicki Wilson, as she has repeatedly throughout this debate over the past several years. She said Vicki Wilson needed a partial-birth abortion because of a medical condition she and the baby had. Let me quote from Vicki Wilson's own testimony to Congress.

My daughter died with dignity inside my womb, after which the baby's body was delivered head first.

Not feet first. Vicky Wilson did not have a partial-birth abortion. Yet it is a case that is continually used here to justify a
partial-birth abortion being kept legal.

The case was also made she needed to have one done. Quoting Vicki Wilson:

I knew I could go ahead and carry the baby until full term but knowing, you know, that this was futile, you know, that she was going to die, I felt like I needed to be a little bit more in control in terms of her life and my life.

Vicki Wilson did not have a medical emergency or a health need, from the standpoint of what most people would consider to be a health need, which is physical health.

I caution, when people listen to this debate, that they listen to the debate of what is real, what the facts are, and what the consequences are. There is no question in my mind that the consequences of this debate are the most profound consequences we face as a country and more specifically as a culture as to who we are. Because ultimately what this is about, banning this procedure, is about who we are going to accept in our human family. Do we accept this little baby? You can pull out the photo Senator Brownback showed earlier. If we can accept this little baby at 20 weeks or 21 weeks into our human family, or do we say no, no, you may look like us, you may have hands and feet and you may have a heartbeat, you may be perfectly normal, you may have looked like us when we were that age, but we are not going to include you in the human family. We are not going to call you an American. We are not going to give you the rights provided to you under the Constitution.

It really is about who we accept. I would argue it is about who we are going to love, who we are going to nurture, who we are going to support.

Today in the Senate we have a chance to say in some very small way—and I admit, I will agree with the Senators from California and others that this will do very little to limit the number of abortions. I agree with that. But in some small way
we are acknowledging this little child, this little child is a member of our family.

The Senator from Iowa, Senator Harkin, as well as the Senator from California, Senator Feinstein, talked at length about the striking of the Roe v. Wade language from this bill that passed the Senate. The language stated Roe v. Wade was the law of the land and should continue to be the law of the land. It passed by a couple of votes here in the Senate.

I think many of us found that to be somewhat in contrast with the underlying purpose of this bill, in the sense that this was a very small tip of the hat, recognition of the humanity of this child, we were not going to treat this child in this grotesque fashion. That is all.

It doesn't say that child couldn't be killed in some other fashion that was medically safer for the woman. But it says when it comes to delivering a child and having that child just inches away from being born, we were not going to go that far. This, really, was too close. So we gave a small nod, a small nod to the humanity of that child in the process of being born.

So many of us thought, sort of restating this sense of the Senate about the primacy of Roe v. Wade was an insult to even this little nod that I would argue is outside of Roe v. Wade. Unnecessary, is what it is. Roe v. Wade is, according to the Court, how they will decide abortion cases.

I vehemently disagree with them and I will continue to fight on this floor and anywhere else I can to make sure that law, that Court decision taking the decision away from the American public—which is where it was prior to Roe v. Wade—taking the decision of great moral import away from the American public, is returned to the people.

We just saw an election in California where the people rose up and said they wanted to take back control of their State. We don't have such a process here. The Court is insulated from the public rising up and saying no, we don't like your decision—or even from the Congress. It takes a huge amount of effort. It is a very difficult process to amend the Constitution, pass both Houses of Congress by a constitutional majority, 67 percent; plus get three-quarters of the States to ratify a constitutional amendment. Yet this Court by a whim can amend the Constitution with five votes, and did so.
They amended the Constitution like that.

I don't think that is the way the Framers wanted it. I think they set forth a constitutional amendment process because that is the way they wanted to create new rights or change the Constitution, not to allow the Court to do it.

I have likened the Roe v. Wade decision—I was fortunate enough Sunday to be in St. Louis, MO and had the opportunity to walk by the courthouse, which is right in downtown St. Louis, where the Dred Scott case was initially decided. That is where the district court was.

You look back, and people in St. Louis have great pride in the fact that case was there, and many Missourians stood up and fought against what that case was all about. I would argue that Roe v. Wade is exact in kind as the Dred Scott decision. Like the Dred Scott decision, Roe v. Wade—unlike, if you think back, and think of any other major Supreme Court decision, where rights, individual rights were dealt with—almost every other Supreme Court decision in which individual constitutional rights were dealt with, over time the public grew to accept. That is because over time, the public grew to understand the justice of that decision.

The most recent one is civil rights decisions. But in Dred Scott the abolitionist and so many others knew of the injustice—yes, it was the law; that is what the court said. They decided the case. There were too many in this country who said, no, I don't believe that is right.

It is amazing if you see the polling of young people in America, there is actually a higher pro-life sentiment among young people than older people, but you would think people who grew up, knowing this was the law—because when people hear the law they think, if it is the law, it must be right; it must be just; it must be ethical; it must be moral; otherwise, it would not be the law. The law is a great teacher. It is the greatest teacher to young people as to what is right and what is wrong.
Young people, knowing the law, still say there is something inside me that says this is not right. Just like young people in the 1850s and 1860s, who said there is something inside me that tells me this is not right.

Abraham Lincoln said a house divided against itself cannot stand. So here we are today, with the American public deeply divided on this issue, deeply divided because so many people for 30 years have only known the law and the popular culture. Does the popular culture depart at all from what the law is? Is there anything you see coming out of Hollywood or New York that at all disagrees with this, the Supreme Court notion of what the law should be? Of course not. Yet this feeling is out there, this sentiment, like the abolitionists of the 1860s who said it may be the law, but in this case that does not make it right. That does not make it just. So while we had a great debate on Roe v. Wade, this will have no impact. It is just a debate that will continue to go on.

The final point I make about this is one I have made before. Why are Dred Scott and Roe v. Wade alike? Because the Dred
Scott decision put the rights, the property rights, the liberty rights of the slaveholder above the life rights of the slave. In our founding document, the Declaration of Independence, Thomas Jefferson wrote: We are endowed by our creator with certain inalienable rights. Then he listed them: The right to life, liberty, the pursuit of happiness. In that order—life, liberty, pursuit of happiness.

In Dred Scott, we took the fundamental right, life—for without life you cannot have liberty; without liberty you cannot pursue happiness. So they are put in order for a reason. What Dred Scott did was take the life rights of a slave and put them under the liberty rights of someone else.

And Roe v. Wade, the reason I compare it to Dred Scott, does the same thing. It puts the life right of this little human being that we have decided not to accept in our society as a person and subjugates them to the liberty rights, the choice of someone else, in this case the baby's mother.

The Senator from California says why don't we trust women more? I do. But you cannot ignore the fact that one-third of all pregnancies in America end in abortion. This is a very small piece of legislation, I will admit that. But it is important just for a brief moment, just for some rather small piece of legislation that affects, if you consider 1.3 million abortions, less than 1 percent of all abortions, far less, .1 of all abortions, but in some small way it begins to recognize the humanity that we have to display toward this child and not treat this child in such a brutal fashion.

I conclude by thanking my colleague from California and all those who have been involved in this debate over the years. We have had a vigorous debate. That is important in the Senate that we debate these very important issues. I thank all those on both sides of the aisle who have engaged in that. I thank Senator Smith for his courage in bringing this bill up; Senator DeWine, in particular, who has been a tremendous champion on this issue; along with Senator Brownback, Senator Ensign,
Senator Voinovich, and so many others who have come to the Senate and taken on this issue.

I thank my staff: Heather MacLean, for the tremendous work she has done in supporting me in every way possible in getting the information I need when I need it, to carry this debate forward; and Michelle Kitchen; prior to her, Wayne Palmer, my legislative director; and all the members of my staff.

Finally, I thank all who have been sending your prayers to Washington, DC, through this debate. They have made a difference.

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