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Public Statements

Executive Session

Location: Washington, DC

EXECUTIVE SESSION -- (Senate - September 28, 2005)


Mr. BROWNBACK. Mr. President, I rise to speak on the nomination of John Roberts to be Chief Justice of the United States. I speak about this at an exciting time for this country. This will be the 17th person to occupy this position. It is a rarity for this position to become available. I love this Nation.

I love the institutions of this Nation. More, I love the people of this Nation.

I know, as well, that John Roberts does too. I know from the time I have spent talking with him and hearing his comments, that he too loves this Nation. He loves the people of this Nation and he looks forward to its greater greatness into the future. I am looking forward to his service.

When the Frenchman, Alexis de Tocqueville, whom many of us quote often, visited the United States in the 1830s, he wondered how Americans could maintain a genuine representative government when the liberty they enjoyed would suggest that the average citizen would be a purely self-interested individual. If we were to give them pure liberty, they would, he believed, just pursue self-interests. So how could you have a government that would govern when everybody is focused on their self-interest?

He was amazed to find what kept Americans joined together and with their government was what he called ``habits of the heart.'' By this, he meant that citizens often were concerned about the greater public good, along with their own narrow self-interests. So, while they had their own self-interests, their hearts pulled them to a greater public good and these ``habits of the heart.'' That led to their participation in political discourse, to be involved in their communities, and take care of their fellow citizens.

Throughout our history, our ``habits of the heart'' have informed and driven America's conscience. The people knew the colonial system stifled freedom, so they rejected the British monarchy and ultimately ratified the U.S. Constitution. The people knew in their hearts that slavery was wrong, and that terrible institution was rightly brought to an end. It was difficult, and it was at a terrible cost. And the people knew that the legal promise of equal protection was empty without racial justice.

Throughout the consideration of Judge Roberts' nomination, many of my colleagues have spoken about a particular issue that I want to discuss, and its impact and relationship to that habit of the heart. This particular issue, which is at the center of the debate for Judge Roberts, is the right to privacy. They also have demanded that Judge Roberts adhere in a few cherished cases to stare decisis, that is, the practice of letting a precedent stand for the sake of stability in the law, regardless of whether the precedent reflects the correct interpretation of the law.

What is striking about this discussion is that it has not been illuminated by what Tocqueville saw in us long ago--those ``habits of the heart'' that make Americans aware of the greater good and of the justice due their fellows citizens.

To explain what I mean, consider Judge Roberts' confirmation hearing. During the hearing, Judiciary Committee members spent a lot of time discussing section 2 of the Voting Rights Act. It was often mentioned that it was critical for Congress to enact a so-called effects test in order to eradicate discrimination in voting practices. Under this test, a neutrally worded law was to be struck down if it diluted the political preferences of minority voters, even if that effect was intentional. If there was an effect where it had a negative impact on voting for minority groups, it was to be thrown out, it was to be declared unconstitutional, it was a bad effect.

It seems to me there is a broader lesson to be learned by discussion of an effects test. And I agree with that effects test in the Voting Rights Act; it is absolutely right. It seems to me there is a broader lesson to be learned about the effects test.

During the debate on Judge Roberts, some have argued about whether he will vote to affirm or reject abstract legal principles, without really considering what the real effects of these principles have been. And when it comes to the right to privacy and stare decisis, the discussion of effects has been obscured, if not ignored altogether.

The standard argument we have heard is that cases such as Roe v. Wade and Planned Parenthood v. Casey have established the right to privacy, and that such cases should be maintained for the sake of ``stability'' and ``settled expectations.'' Yet both our heads and our hearts tell us that these decisions deserve much more searching scrutiny. This is in part because we rightly resist insulated courts short-circuiting political

debates. But it is also because we rightly believe that these decisions and doctrines have all-too-real effects.

And so it is with the right to privacy. Some of my colleagues have argued that this right, which has been interpreted to guarantee a right to abortion, has been beneficial to women. They argue the right to abortion has ``freed'' them to pursue such goals as full participation in the workforce. But there are certain other effects of this right which should be identified, if we are to have an honest appraisal of what this right has accomplished, and what it has wrought.

I have pointed out repeatedly that in the wake of Roe, 40 million children have been aborted in America--40 million souls who could have brightened our existence and made their contribution to the habits of the American heart. But even this general result of abortion's cold reality masks the specific costs of the Supreme Court's constitutional misadventure in Roe. For it has become clear in recent years that it is the so-called least among us, the disabled, who have paid a disproportionate price as a result of the right established in Roe and other cases.

Let me give you some examples. According to recent numbers released in November of 2004 by the American College of Obstetricians and Gynecologists, over 80 percent of pregnancies involving a child with Down Syndrome were terminated ``by choice'' in the 1980s and 1990s--80 percent. Again, that is ``by choice.'' According to the Centers for Disease Control and Prevention, out of over 55,000 pregnant women screened, 83 percent of unborn children are terminated after testing positive for cystic fibrosis. Finally, the CDC noted that for spina bifida and similar neural tube defects, at least 80 percent of pregnancies ``were electively terminated.''

These particular numbers are astonishing, and not just because they represent the wholesale destruction of generations of unborn disabled children. What makes them painfully ironic is that this trend persists even in a society that has extended significant protections to the disabled once they are born.

A prime example, of course, is the Americans with Disabilities Act of 1990, which was an historic achievement. I applaud my colleagues, Senators Kennedy and Harkin, and my predecessor, Senator Bob Dole, for their important role in passing this milestone legislation.

Deeming the protection of the disabled a ``human rights issue,'' the first President Bush called the ADA ``the world's first comprehensive declaration of equality for people with disabilities.'' His successor, President Clinton, stated on the ninth anniversary of the passage of the ADA that ``For too long, we have encumbered disabled Americans with paternalistic policies that prevent them from reaching their potential. But now, we endeavor to empower individuals with the tools they need to achieve their dreams.'' I would note that to dream, they have to be alive.

In enacting the ADA, the Congress explicitly made the following finding, upon which one of the protections of the ADA was based:

People with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally.

In worthy fulfillment of the promise of the Declaration of Independence that ``all Men are created equal,'' the Congress issued in the ADA a ``clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.'' There were not qualifiers for it. They did not say at certain places or points of time in life. They said this is a ``clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,'' period.

To enforce this mandate, Congress explicitly ``invoke[d] the sweep of congressional authority, including the power to enforce the Fourteenth Amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.''

The ADA establishes extensive protections for persons with disabilities. It protects them when they seek employment; it protects them when they attempt to use government services; it protects them when they wish to use public transportation; it protects them even when they want to book a hotel room or seek access to a restaurant; it even protects the hearing-impaired and speech-impaired who want to share in the benefits of the revolution in telecommunications.

Similarly, 30 years ago, Congress passed the Individuals with Disabilities Education Act, IDEA. In the act, Congress found, among other things, that ``[d]isability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society.''

These are worthy and grand statements of inclusion and support to people with disabilities.

The ADA and the IDEA demonstrate that the disabled need and deserve the protection of the law in order to fulfill their potential.

Yet ironically, it is when the disabled are most vulnerable--indeed, completely voiceless--that our society leaves them completely unprotected. The laws offer no shelter to them before they are born. In this dangerous legal vacuum has stepped the Supreme Court. In 1973, just 2 years before enactment of the IDEA, the Court invented a right to abortion--a right which has proven lethal to legions of disabled Americans. And in a cruel jurisprudential twist, it was none other than the 14th Amendment, which Congress invoked in enacting the ADA, upon which the Supreme Court based the right to abortion.

What does it say about our society that we refuse to acknowledge the damaging effects of Roe on the disabled? Where does the path lead when we ignore the habits of our hearts, which demand that we extend our compassion to these Americans? What have we become when we have jettisoned the unalienable right to life Thomas Jefferson found self-evident in favor of the moral and legal quicksand of Roe?

The sad experiences of other countries suggest a few unsettling answers to these questions. For example, China recently criminalized abortion for the purpose of sex selection. The reason for this is revealed by figures--an effects test, if you will--showing that 119 boys are born in China for every 100 girls--119 boys for every 100 girls. This gender gap can be attributed to the combination of the Communist government's one-child policy with a culture that often values sons more than daughters.

So millions of parents have aborted baby girls hoping to have a boy next time. If current trends continue, some experts say that China could have as many as 40 million men who can't find spouses by the year 2020.

India faces a similar problem. Sex determination has been a serious problem there since the 1970s, when amniocentesis began to be widely used to determine the sex of the unborn child. A 1985 survey revealed that 90 percent of amniocentesis centers were involved in sex determination, with nearly 96 percent of female fetuses aborted. In response, India outlawed fetal sex determination for sex selection 8 years ago, but prenatal sex determination through ultrasonography continues.

Indeed, the situation has become so dire that the Indian Medical Association has appealed to the conscience of that country--the habit of the heart of that nation--and the world to save baby girls from abortion. The association says that up to 2 million baby girls still are killed by abortion every year. A former President of the Indian Medical Association told the BBC that the situation has led to a demographic imbalance of up to 50 million fewer women in the country than would be expected.

This selective destruction of the unborn in other countries has a grim predecessor in American history: the eugenics movement. As Edwin Black has noted in a book called ``War on the Weak'':

[T]he eugenics movement slowly constructed a national bureaucratic and juridical infrastructure to cleanse America of its ``unfit.'' Specious intelligence tests, colloquially known as IQ tests, were invented to justify incarceration of a group labeled ``feebleminded.'' Often the so-called feebleminded were just shy, too good-natured to be taken seriously, or simply spoke the wrong language or were the wrong color. Mandatory sterilization laws were enacted in some twenty-seven states to prevent targeted individuals from reproducing more of their kind. Marriage prohibition laws proliferated throughout the country to stop race mixing. Collusive litigation was taken to the U.S. Supreme Court, which sanctified eugenics and its tactics. The goal was to immediately sterilize fourteen million people in the United States and millions more worldwide--the ``lower tenth''--and then continuously eradicate the remaining lowest tenth until only a pure Nordic super race remained. Ultimately, some 60,000 Americans were coercively sterilized and the total is probably much higher.

The source of the word ``eugenics'' is very interesting. The very word was coined by Francis Galton, the nephew of Charles Darwin. Galton believed that ``what nature does blindly, slowly, and ruthlessly, man may do providently, quickly, and kindly.'' In 1883, Galton created a new term for this manmade ordering of life. As Black describes it, Galton ``scrawled Greek letters on a hand-sized scrap of paper, and next to them put two English fragments he would join into one. The Greek word for `well' was abutted to the Greek word for `born' ..... and the word he wrote on that small piece of paper was `eugenics'.'' Well born.

Among the strongest proponents of eugenics was Margaret Sanger. Sanger advocated for the mass sterilization of so-called ``defectives'' and the wholesale incarceration of the so-called ``unfit.'' She particularly supported the sterilization plan of those people she deemed unfit; she believed this plan would lead to the ``salvation of American civilization.'' She also argued for sterilization of those who were ``irresponsible and reckless,'' including those ``whose religious scruples prevent their exercising control over their numbers.'' For these people, she contended that ``there is no doubt in the minds of all thinking people that the procreation of this group should be stopped.'' She repeatedly referred to the lower classes as human waste not worthy of assistance, proudly promoting the views that these ``weeds'' should be ``exterminated.''

Sanger went on to found a group that came to be known as Planned Parenthood, the very same organization which successfully prevailed upon the Supreme Court to reaffirm Roe v. Wade in the 1992 case of Planned Parenthood v. Casey. Sanger's legacy still resonates today.

Dr. John Harris of Manchester University in England has offered a slightly milder formulation than that of Sanger. He has stated that:

Eugenics is the attempt to create fine healthy children, and that's everyone's ambition....... We're not trying to do this through killing people or eliminating individuals, we're trying to do this by making choices about which people will exist in the future.

Given the experience of other countries with abortion; given our own experience with abortion of the disabled; and given the natural repugnance most people have with the eugenics movement, I would suggest to my colleagues that Roe and other related cases simply flunk the ``effects test'' we have long applied in the context of voting and other rights. These cases have carved millions of voices out of our civic core and cannot withstand moral scrutiny, much less an honest legal examination.

The right to privacy as it has been extended has not only weakened our legal culture; it has made us poorer as a people. It is impossible not to recognize the significant contributions made by those with disabilities who do survive; they help to bring out the humanity in each of us, and we are better for it. Every time I see one of these beautiful children, I am reminded of what joy they bring, and what joy their counterparts might have brought.

How can we, as a nation, stand for the principle of equality, that we are all blessed to be alive, that we are all capable of great success regardless of disability, and that we are a compassionate society, when our laws blithely allow the elective termination of more than 80 percent of a vulnerable population. It is incomprehensible.

Numerous men, women, and children with disabilities have overcome adversity and achieved great successes in their lives. I would like to take a few minutes to share a few of their stories.

Here is a picture of Abby Loy. I met her last week when she visited my office. She is a beautiful young girl and she has Down Syndrome. She does modeling and was recently featured in a book called ``Common Threads,'' which illustrates the numerous accomplishments achieved by people with Down Syndrome. Abby and her mother came to Capitol Hill from Michigan last week to promote awareness of disability issues and to illustrate Abby's wonderful life journey.

Look at this beautiful child. This note is from her parents:

When Abby was born, physicians and social workers informed our family of all of her potential limitations, developmentally and physically. When we asked what Abby's education path might look like, we were told that she would attend special classrooms. Abby has been successfully educated with support in all regular education classes and continues to grow. We felt Abby would prove herself to be much more capable than others believed ..... It continues today.

Again, that note is from her parents.

It is a tough choice when a mother or a spouse gets a diagnosis in utero that a child has Down Syndrome; it is agonizing. I know from my own thoughts when we were having our children. Yet I ask people to look at the beauty of the child and embrace her. If they can't, there are other groups and individuals that will. It is a tough choice, but it is a child, a beautiful child, a child that can accomplish much.

I want to show another example. This one is Samuel. I have had Samuel in to testify before a subcommittee I chaired last year. I am rather partial to the name Samuel myself. In this picture he is catching fish. It doesn't look like a very big fish and the fish doesn't look too happy, but Samuel is sure happy. He has spina bifida, which most medical professionals call a devastating birth defect. These are his parents' words:

Though we were devastated by learning that our unborn son had spina bifida, we wanted to do all we could to improve the quality of his life. Ending it was never an option. Let's see what we can do to improve it. At 21 weeks gestation, Samuel had fetal repair of his spina bifida lesion. Today he is a 5-year old kindergartner. He is imaginative, funny, and compassionate. He can read, swim, and catch even the fastest lizard. He has touched many lives. We are so thankful for him and are eager to see what great things he will accomplish.

Normally, about 80 percent of children diagnosed with spina bifida are terminated and killed in utero.

I have a final example. This is a lady who looks at her Down Syndrome as an ``up syndrome'' and has started ``Up with Down Syndrome''. She has served on President Clinton's Committee on Mental Retardation. She served three terms from 1994 to 2000, one of the first two members with a disability to be appointed to this committee. Her name is Ann M. Forts. She goes around the country and talks with individuals about what she can do. The second paragraph of a letter she sent to me is particularly striking:

As I think about my active and happy life on the upside of my Down Syndrome dis``ability'', I find it extremely frightening to think of how vastly different my life would have been if my parents had taken that ill-conceived professional advice when I was born.

In other words, to put her in some form of an institution rather than bringing her home.

These are inspirations to all of us. And if you need further inspiration, just go talk to Jimmy, the elevator operator right outside the door of the Senate Chamber, who brightens all of our lives.

They will not be defeated by their disabilities, and we celebrate them for that. But think about the many more like them, think about the more than 80 percent of the beautiful capable children, similar to Abby, Ann, Jimmy, and Samuel, who are never given a chance because their lives are terminated before they are born.

We should not use bland phrases such as ``right to privacy'' or ``stare decisis'' to disguise the issue at stake with Judge Roberts' nomination to be Chief Justice of the United States. We must be truthful with the American people, as well as ourselves, and admit that this confirmation is, at its root, about the most fundamental and basic right of all: the right to life.

As Americans, it is our duty to protect and defend the weakest among us. The duty is not only mandated by our laws but nurtured by our conscience and our habits of the heart.

With the recent enactment of the bipartisan partial-birth abortion ban and bills like the Pre-Natally Diagnosed Awareness Act, which I sponsored with Senator Kennedy, we have begun heading in the right direction. However there is still significant work to be done.

There is still a glaring inconsistency between the life that we deem to be worthy of protection under the Constitution, and the life which we do not. The value placed on certain persons and stages of life seems to be arbitrarily assigned. The Constitution clearly states in the 5th and 14th Amendments that ``no person'' shall be deprived of ``life, liberty, or property without due process of law.''

``No person.'' What does that mean? Does it extend to an unborn child? Is an unborn child a person or merely a piece of property? A person is entitled to inalienable rights established under the Constitution and laws of the United States. Property can be done with as its master chooses. I posed this question to Judge Roberts during his confirmation hearing. Because this issue may come before the Court at some point in the near future, he declined to answer directly. But the persistence of this issue simply underlines the importance of each Supreme Court vacancy.

I will support the nomination of John Roberts to be Chief Justice of the United States. I will do so based in part on his stellar credentials for the position, but also on my hope and my prayer that he understands what is at stake when the Supreme Court interprets the people's Constitution--not a sterile debate over arcane legal principles and Latin doctrines but the very habits of our hearts.

I yield the floor.

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