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Further Discussion of Partial Birth Abortion Ban Act (Pt. 3)

Location: Washington, DC

Mr. SANTORUM. Mr. President, I want to review what the Senator from Louisiana said with respect to abortion. I think the Senator from Louisiana expressed her view as to what Roe v. Wade means. I sincerely believe that she feels that way. She would like the law to be that way, and I think most Americans would like the law to be more toward her direction than where it really is.

The law is pretty clear—Roe v. Wade and the companion cases—that in fact the right to an abortion is, in America today, at any time for any reason.

That is what happens. You can cite the case in Roe that talks about the issue of viability, but there was the Doe v. Bolton case that was decided with it; it was read together.

In Doe v. Bolton, the Court ruled abortion could be performed after fetal viability if the operative physician judged the procedure necessary to protect the life or health of the woman. That is where we come down, health of the woman. Under Doe v. Bolton, the health of the woman is anything—is anything. The Senator from Ohio just read this, and I will read it again:

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

There is simply no restriction there. There is no limitation there, and there are people on the Court today who have interpreted that decision consistently with that no limitation. In fact, I would argue the Court is going even further in that direction. There is some scary language—this is the Carhart case—there is some downright scary language in this decision. I just wish the public understood how absolute this right is, how unfettered this right is, and how absolutely resistant the pro-abortion side is at keeping that pure right in place—unrestricted, unfettered right in place. But we are going even further than that.

We have a case here where we have two Justices of the U.S. Supreme Court, Justice Stevens and Justice Ginsburg, in a concurring opinion—thank God it is not the majority opinion—but in a concurring opinion in the U.S. Supreme Court, this is what Justice Stevens says, and this is what the Senator from Louisiana was saying:

The liberty clause—

Oh, how words can be twisted.

The liberty clause in the fourteenth amendment includes a woman's right to make this difficult and extremely personal decision, makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.

Do you know what this means? This means he can do anything he wants, any procedure, none of them reviewable. That is why we had to pass a bill last year called the Born Alive Infant Protection Act. Why? Because Justice Stevens, one of the nine imperial Judges on the U.S. Supreme Court, unelected, had decided that if a doctor wants to deliver a live baby and then kill it, that is a procedure. Do you know what. Justice Stevens said that if that is what the doctor believes, fine. That is how far we are going. That is the corruption of this entire issue of abortion. It is just so corrosive that it takes people who see words such as "liberty" and turns them into murder. Liberty means now murder, in the eyes of Justice Stevens and Justice Ginsburg. Oh, this is such a caustic issue that just corrodes the essence of the spirit of America.

Senator Durbin—I have said it repeatedly—I believe in good faith is trying to put some restriction in place to what has gone off. By the way, Justice Stevens, unfortunately, and Justice Ginsburg are not alone. You have Peter Singer, whom the New Yorker magazine calls "the most influential living philosopher"—the most influential living philosopher. As you will hear these statements, you may wonder, no, this is just some kook. No, Professor Peter Singer, distinguished chair, where? Princeton University. Peter Singer has argued that when the death of—what he argues—I will not quote him. I will submit this for the RECORD so there will be plenty of quotes in here because I do not have much time.

What he argues is that a child once born should be allowed to be euthanized up until—he has updated his opinions here. He believed it was only waiting 28 days after birth before deciding whether the baby has rights, but now he has said that is an arbitrary figure and it should be—"Oh, I think it should be somewhat short of 1 year but the point is not for me or anyone else to say, it should be up to the parents and, of course, the doctor."

You say this is crazy, allowing a parent or society, in the case where the parent is not there, to euthanize a child; that is crazy. I can guarantee, go back 50 years and maybe there were debates on this floor that thought abortion would be a crazy thing and that could not happen in our society; we could not have 1.3 million abortions.

I heard the Senator from California, and I hear this over and over: We want abortion to be safe, legal, and rare. Twenty-five percent of all pregnancies in this country end in abortion. By anybody's estimation, is that rare? Twenty-five percent, is that rare? Forty-seven percent of abortions in this country are a woman's second abortion or more. Is that rare? Is there something corrupting our society here?

I understand the Senator from Illinois is trying to get at least some piece of it, but he fails. He fails. He fails on four counts, and let me quickly go through them, and more actually, the Senator from Ohio listed a few more.

Four major counts: No. 1, there is a substitute. It eliminates the ban on partial-birth abortion. Most partial-birth abortions are done in the 20- to 26-week area where there is a question of viability. You have—and I entered those in the RECORD—you have up to 75 percent viability at the time of 26 weeks. But, again, it is a substitute that eliminates all previous viability abortions. No. 1.

No. 2, it does not define viability, and it leaves it up to the doctor to determine what is viable. If the doctor says this child is not viable, there is no review, and as soon as you say it is not viable, the statute does not apply. So all you have to do, if you want to have an abortion, is say it is not viable; nobody has to review it and the statute is not operable.

No. 3, risk of grievous injury to the physical health of the mother. Again, it uses the term "risk." It does not say how much risk. It can mean any amount of risk—one-half of 1 percent risk.

We have Dr. Warren Hern, who wrote the textbook on third-trimester abortions, the leading expert in this country, saying:
I have very serious reservations about this procedure. You really can't defend it.

He also has a quote that says he would certify that every pregnancy has a risk of grievous physical injury to a mother—every pregnancy. What if he makes that statement and it is not true? What happens? The Senator from Illinois had criminal penalties potentially for perjury. Those are now removed from the bill. There is no criminal problem with that physician or the other physician who has come in to look at this from having any criminal sanctions.

What are the sanctions? He could lose his license. Not really. The State has to promulgate regulations under this statute to suspend or revoke a license. It does not say they have to revoke it or say how long the suspension is. It could be 1 day. I suspect in States such as New York, Connecticut, and Massachusetts, where abortions are overwhelmingly supported, you could have 2 hours of revocation, or something like that. It would be a ridiculous standard.

The bottom line is it mandates no revocation or suspension of license of any weight, and even at that, it is revocation or suspension or a fine up to $100,000 in the first case, $250,000 in the second, but it could be a dollar.

Again, there is no floor in the amount of money. So there really is the potential for no consequences in a lot of States, or maybe even in most States. It is a substitute. If one is against partial birth, they cannot be for this amendment. If it is understood that viability kicks one out of this statute to begin with, and it is only the decision of the doctor that determines viability and there is no review of that, that makes this statute basically inoperable, I would argue, for every abortion that is done in America.

Then if one gets in, there is the risk question, which again nullifies, really, any weight on the physician because risk can mean such a small amount of risk to make it almost inconsequential. Finally, there is no penalty if all that does apply.
So I suggest that while I believe the Senator from Illinois was trying to do something to attack what I described as an unfettered right to an abortion is the preeminent right in America—

The PRESIDING OFFICER. The Senator's time has expired.

Mr. SANTORUM. I thank the Chair.

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