Pain-Capable Unborn Child Protection Act -- Motion to Proceed

Floor Speech

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Mrs. FEINSTEIN. Mr. President, I come to the floor to express my strong opposition to the bill we are going to be voting on tomorrow morning, and that is a bill to limit women's choice by banning abortions after 20 weeks of pregnancy. I would like to make several points today: Why the bill is unconstitutional, the truth about late-term abortions, the bill's rape certification requirements and the absence of a health exception, and, finally, how this debate is much more than this one bill.

Let me be clear, Mr. President. This bill is just one part of a sustained assault on a woman's access to health care and her right to make decisions for herself and her family.

First, this bill is unconstitutional. Similar State laws banning abortion at 20 weeks have been struck down by the courts. The Supreme Court in the controlling opinion in Planned Parenthood v. Casey, 1992, stated:

The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.

Viability refers to the point at which a fetus could survive outside the womb. The Supreme Court's 2007 decision in Gonzales v. Carhart summarizes that portion of the Casey decision stating, ``Before viability, a State may not prohibit a woman from making the ultimate decision to terminate her pregnancy.''

In 2012, Arizona enacted a law prohibiting abortions after 20 weeks. The Ninth Circuit found that statute unconstitutional. Now that is a direct case in point from one circuit. The Ninth Circuit said the law conflicted with a long line of Supreme Court cases that found bans on women's right to abortion prior to viability as unconstitutional.

In that case, Arizona admitted that a fetus at 20 weeks was not viable. A conservative judge on the Ninth Circuit, Andrew Kleinfeld, said he was ``compelled'' to strike down the Arizona law based on existing precedent. The Supreme Court subsequently denied Arizona's petition to hear the case.

Other State laws banning abortions at 20 weeks or earlier have also been struck down on these grounds. For example, Idaho's 20-week ban was struck down by the courts. The opinion in that case stated that the Idaho law was ``directly contrary to the court's holding in Casey that a woman has the right to `choose to have an abortion before viability and obtain it without undue interference from the State.' ''

The court's rulings have been informed by medical experts, and medical experts have said repeatedly that a fetus is not viable at 20 weeks. Let me give you a good example. Dr. Hal Lawrence, the chief executive officer of the American Congress of Obstetricians and Gynecologists, recently addressed this issue, and I would like to read a portion of his remarks:

The 20-week mark is just not notable from a fetal development standpoint. More than 40 years ago, the Supreme Court stipulated that abortion is legal until a fetus is viable. Well, in no way, shape, or form is a 20-week fetus viable.

Now, this is a medical OB/GYN, who is head of the association speaking. Continuing to quote him:

There is no evidence anywhere of a 20-week fetus surviving, even with intensive medical care. Unfortunately, some advocates of abortion bans are pointing to a new study they claim heralds 22 weeks as being the new point of viability. They suggest that we might someday reach viability at 20 weeks. It is essential that we address that now, before this becomes another myth about abortion that is accepted as reality.

The doctor goes on to say:

First, this new study was not conducted to add fuel to the fire of abortion rights opponents. It was intended to help give OB-GYNs and neonatologists improved understanding of the challenges and opportunities associated with early premature delivery. Second, even in this study, survival at 22 weeks was only 5 percent overall. This is why the medical community refers to the ``threshold of viability,'' because there is no point at which viability is clearly established. Even among babies that receive intensive medical care, survival only reached 23 percent, and most of those babies had moderate to severe neurological impairment. Importantly, this study only looked at babies without fetal anomalies, which surely would have lowered the survival rates even more.

Bottom line: A ban on abortion before viability, which is exactly what this bill represents, is unconstitutional, and the courts have spoken on the issue.

Next, I would like to set the record straight on the widespread misconceptions about late-term abortions. First, they are not usual. They are extraordinarily rare. Just 1 percent of abortions occur after 20 weeks. Secondly, many of the pregnancies terminated after 20 weeks occur because something has gone terribly wrong--the fetus has a fatal disease or the woman's health is in danger. Let me give an example. Christy Zink, a mother of two here in Washington, testified before Congress against this bill. In 2009, after trying for years to become pregnant, she and her husband were elated to be expecting a boy. Unfortunately, when Christy reached the 21st week of her pregnancy, the MRI revealed that her baby's brain had not developed correctly. One side of it was missing.

Everything up to that point looked normal. The brain scan wasn't capable of detecting the problem any earlier. Christy and her husband consulted the best doctors hoping there was some treatment, but nothing could be done. They were devastated.

If Christy's baby had made it to the end of the pregnancy, according to her doctors, he would have been in terrible pain and likely died soon after birth. Christy said, ``The decision I made to have an abortion at almost 22 weeks was made out of love and to spare my son's pain and suffering.''

Christy's incredibly difficult story isn't just an isolated example. There are many fatal diseases that can't be detected until later in a pregnancy, including one that causes the fetus's organs to develop outside of the body. Another, called severe brittle bone disease, causes the fetus's bones to break inside the womb.

Our own colleague, Congresswoman Jackie Speier from California, someone I know very well, shared her story on the House floor in 2011. She terminated a much-wanted pregnancy at 17 weeks due to a medical complication. She said, ``To suggest that somehow this is a procedure that is either welcomed or done cavalierly or done without any thought is preposterous.''

Congresswoman Speier is right. Making this personal medical decision is one of the most gut-wrenching decisions a woman could make, and there is no good option. But these decisions need to be made by women, in consultation with their doctors and their families, not by politicians. Every situation is different, and we shouldn't pretend to stand in a woman's shoes and make these choices for them. We shouldn't make a difficult decision even harder.

Next, I wish to discuss the fact that this bill has no exception for the health of the mother. Only when a mother's health deteriorates to the point that she could die does it allow an exception. This is unconstitutional as well. The Supreme Court's controlling opinion in Planned Parenthood v. Casey said that even after viability, the government may restrict abortion ``except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.''

The Supreme Court's 2000 decision in Stenberg v. Carhart reiterated this point. The decision quotes Casey and other cases about the need for a health exception. It is true the Supreme Court in Gonzalez v. Carhart in 2007 upheld a Federal ban on a particular abortion procedure, a law many of us opposed, but the Gonzalez decision still quotes Casey and other cases about the need for a health exception, and it does not suggest that the government can completely ban abortion after a particular week of pregnancy without a health exception.

The bottom line: This bill would endanger women by banning abortion even when necessary to protect the mother's health--and that is also unconstitutional. This is shocking because in no other circumstance would we restrict medical care until the patient is at risk of death. In cases where the mother is bleeding severely or has gone into septic shock, it could be too late to save her or prevent serious injury.

Another shocking provision of this bill requires rape victims to provide certification from law enforcement that they have been raped, as well as proof that they have attended counseling or received medical treatment.

Just a few months ago I spoke on the Senate floor in support of anti-human trafficking legislation. The bill was stalled because some of us wanted to ensure that trafficking victims had access to the medical services they needed, including abortion. There seemed to be agreement on both sides that a trafficking victim who has been raped repeatedly, imprisoned, and abused should be able to get the health care she needs. Yet under the bill we are voting on, a 13-year-old sex trafficking victim--a rape victim--would not be eligible for an exception unless she gets a note from law enforcement or a child welfare agency.

I just did a sex trafficking meeting in Los Angeles with three district attorneys from big cities in California, as well as the sheriff of L.A. County and the chief of police. What they told me is the average girl, sex-trafficked, is between the ages of 12 to 14. So this isn't some outrageously small example. Let's say the victim is 12 to 14. She has been traumatized, she has been emotionally and physically abused. Supposing she was one of those in Oakland, where she was handcuffed at night and stripped naked and then worked the streets during the day. She may not be ready or even able to go to the police. She wouldn't qualify for a rape exception under this bill. That is just terrible. My Republican colleagues would force her to endure the pregnancy--the result of rape--because she didn't have the right paperwork.

Finally, I wish to talk about why it is important to view this bill in the broader context of efforts to dismantle women's access to health care and ban abortion outright. Anti-choice groups have been trying to make it as hard as possible, bit by bit, piece by piece, for women to access safe, legal abortion care.

Take this latest attack on Planned Parenthood. The individuals who made the highly edited videos spent years trying to befriend Planned Parenthood officials and obtain the footage--you can read about it on the front page of Politico today--and they are under investigation for possible criminal activity. They used false identification to represent a fake medical company. The videos were presented to the public as unedited, but forensics experts at the firm Fusion GPS tell us that is not the case. Content is missing and numerous edits have been made to even the so-called full footage videos. Many Members of Congress have requested the full videos. These requests have gone, as one might expect, unanswered.

The point is, a woman's ability to make her own health care decisions is under sustained, unrelenting attacks, most of them by men. Historically, it has always been interesting to me to see that some of the most vocal, the most sustained voices, are male voices, and all women have asked is to be able to control their own reproductive system.

As a result, more than one in three American women lives in a county without a single health care provider that offers abortion services. Today these services are unavailable for millions of low-income women in the country, just the way it was when I was young, when we had to pass the plate at Stanford so women could go to Tijuana for an abortion, and many of us felt she would kill herself if that didn't happen.

As a result of new restrictions, women are once again turning to unsafe methods, much as they did before Roe v. Wade. Women were forced into unsafe conditions, often in back alleys. Some were permanently injured or died. I am old enough to remember those days. In the early 1960s, when I set sentences in California, as a member of the California Women's Board of Terms and Parole, I set a sentence--which the State had determined the sentence law at the time for abortion was 6 months to 10 years. I remember interviewing the woman when she came back. I remember her name. I said to her: Anita, why did you do this again? You should know better. She said to me: Because people are so compelling, and I felt so sorry for these women. That is what this leads to. That is what this leads to.

In 2013, Bloomberg News reported on the increasing number of women in Texas buying pills on the black market to induce abortion. One woman interviewed, a mother of four, was on her way to buy these pills at a flea market. She said:

You'd be amazed at how many people, young people, are taking those pills. I probably know 12 to 20 people who have done this. My cousin just went to the flea market a few months ago.

That is the result of actions like this. When those of us who lived through pre-Roe recount the risks of returning to the way things were, we truly are not exaggerating. Restricting access to safe, legal abortion doesn't reduce abortions; it makes women desperate, it increases health risks, and can lead to death.

At the same time women are facing these attacks on access to health care and the ability to make health care decisions, there is also an effort underway to cut programs that help new mothers and their children. Nearly 15 million children in the United States live in poverty--15 million. That is less than $24,000 a year for a family of four, and nearly half of these families don't have enough food to eat. There are more homeless children in this country--2.5 million, 500,000 of them in California alone--than ever before. One in five of these children actually lives in my State. It is astonishing to me that with all the talk about supporting children, Republicans continue to cut the very programs that support them. These are programs such as the Supplemental Nutrition Assistance Program, Head Start, child care subsidies, Medicaid, and housing assistance.

House and Senate Republican budgets have proposed cutting $5 trillion from nondefense spending, which includes programs to help low-income families. These attacks on vulnerable families must stop.

In conclusion, the bill we are considering today is unconstitutional, and the highest Court of the land has found that so. It would trample on a woman's right to make her own medical decisions. It would even force women to continue pregnancies in the most tragic of circumstances. But this bill is only the start.

If the groups pushing this bill have their way, only the most privileged women in our country will have access to safe, legal abortion. That is how it was before Roe v. Wade. I remember it well. And the women of this Nation will not stand to return to this time. Not on this Senator's watch.

I strongly urge a ``no'' vote.

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