Partial-Birth Abortion Ban Act of 2003

PARTIAL-BIRTH ABORTION BAN ACT OF 2003

The PRESIDENT pro tempore. Under the previous order, the Senate will resume consideration of S. 3, which the clerk will report.

The assistant legislative clerk read as follows:

Message from the House of Representatives to accompany S. 3, an act to prohibit the procedure commonly known as partial-birth abortion.

The PRESIDENT pro tempore. Under the previous order, the time until 10:30 a.m. will be equally divided between the Senator from Pennsylvania, Mr. Santorum, and the Senator from California, Mrs. Boxer, or their designees.

The Senator from California.

Mrs. BOXER. I thank the Chair.

Mr. President, I thank my colleague for agreeing to a time split this morning where I will speak for 30 minutes and, at the end of that time, Senator Santorum will speak for 30 minutes, and then we each expect to have other Senators speaking. We will figure out at that point how to divide the time.

We are here this morning because there is a strong disagreement between the House and the Senate on the issue of Roe v. Wade, a Supreme Court decision that occurred in 1973 which ruled that it was unconstitutional to take away a woman's right to choose and that found a privacy right in the Constitution.

The Senate has gone on record several times supporting the Roe decision. In S. 3, the bill that was brought to us by the Senator from Pennsylvania and others, which for the first time banned an approved medical procedure—the first time ever—without a health exception, Senator Harkin added an amendment to support Roe. I will show you what that amendment was and what the debate is about.

Senator Harkin's language in S. 3 that was disagreed to by the House is the following:

It is the sense of the Senate that—

(1) the decision of the Supreme Court in Roe v. Wade—

And it cites the ruling—

was appropriate and secures an important right; and

(2) such decisions should not be overturned.

This is the simple language that the Senator from Iowa, who spoke quite eloquently last night, made part of S. 3.

The Senate had a debate about the Harkin amendment. It was an extensive debate about why it is important that a woman's right to choose remain the law of the land, why it is important that the Court not overturn it.

The House, which says it very much wants to ban the procedure that is banned in S. 3 without a health exception, could have simply taken the Senate bill and sent it off to the President, and we would have had the argument about this underlying bill in the Supreme Court, where it is going to go, by the way, where I believe it will be ruled unconstitutional because the centerpiece of Roe is that a woman's health and life must always be protected.

Let's look at the language in Roe which provides for the woman's health to always be protected and why, to those of us who believe Roe v. Wade was rightly decided, it is so important.

The important point about Roe, which people sometimes don't get, is that it is a very modest decision, a very moderate decision. It balances all the interests in a way that is fair. It says that in the early stages of a pregnancy, a woman has a right to decide whether to carry this child to term. She makes that decision after searching her soul, talking to her family, her doctor, her God.

Guess what. Government isn't in the picture, Senators are not in the picture, Congresspeople are not in the picture, Senator Boxer is not in the picture, when a woman is making this decision. Neither is Senator Santorum nor Senator Frist nor Senator Stevens nor Senator Daschle. As far as this Senator is concerned—and I represent the largest State in the Union—that is the way it should be.

I support everyone making their own decision as Roe states they should have the right to do in the early stages of a pregnancy. In the late stages of a pregnancy, after viability—that is when a fetus can live outside the womb—this is what the Court said in Roe:

The State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe—

Meaning ban—

abortion, except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

It is a very sensible law. After viability, any State in the Union can ban abortion but always making an exception for the life and health of a woman.

We have a decision, that I believe was very carefully thought out, that balances everyone's views, or let's say the majority of views, and indeed the majority of the people support Roe. In my particular State, it is overwhelming, but it is a strong majority across the country.

Here is why it is so important. I guess my colleagues said: Why is Senator Boxer having us vote to disagree with what the House did? The House tossed out the support of Roe in S. 3 and said: We don't want it. Therefore, the two bodies will go to conference.

Why do I want to take the time and have a debate about Roe? First of all, it is a very serious worry to many people in this country that with the Supreme Court at roughly a 5-to-4 vote on Roe, we could lose this right, and with the Senate now only having 52, 53, or 54 people in favor of Roe, which is diminishing, this is a problem. With the House anti-choice, this is a problem. They believe that making sure people understand what Roe actually did, what the decision actually did, is very important. So I think for that reason, to remind all of us what Roe v. Wade actually said and actually did, it is important.

The other reason is, the underlying bill goes completely against Roe. Why? Because Roe v. Wade said, yes, the State—meaning the Government—can even go so far as banning abortion but always having an exception for the life and health of the mother. This bill makes no exception for the health of the mother.

Now, why is this important? What could happen to a woman if she cannot have the particular procedure that is being banned, as Members of the Senate and the House play doctor, and for the first time decide that they are going to outlaw a procedure?

Let us look at what could happen to a woman's health. The night before last I put in documentation, letters, that laid out these problems. This is what doctors tell us could happen if the procedure that is banned in this bill cannot be used to save the health of a woman. I want everyone to think about whether they want their wife, their daughter, their sister, their friend, their aunt, or anyone else they love to go through this.

A woman might have a hemorrhage, a hemorrhage that could get worse and worse and could lead to serious, long-term damage. Her uterus could rupture, meaning she may well never have another child. She could get blood clots, and everyone knows how serious that is. She could have an embolism, a stroke, damage to nearby organs, even paralysis. This is what doctors tell us.

We do not have one OB/GYN in the Senate. The OB/GYNs tell us these are the things that could happen if a safe procedure that is recognized is not available to a woman, and yet this bill, S. 3, bans this procedure, does not give a whit about this in the end because there is no health exception. Believe me, my colleagues tried to offer very tight health exceptions and oh, no, the other side would not give an inch—no health exception.

This is what could happen to a woman, and the only saving grace of S. 3 is that it has the Roe language in it that we support in Roe. What does that say? It says to the Supreme Court across the street that even though the Senate passed S. 3 and banned a procedure, it also at the same time said, do not overturn Roe. Roe has a clear statement that the health of the mother must always be protected.

I hope everyone on the other side votes for this. I have heard it is possible because there is a technicality here. If this amendment or this motion to disagree goes down, then there will be no conference and the bill cannot go forward. I hope all my colleagues on the other side vote for this, I really do, because I want a strong signal to go out that this Senate disagreed with what the House did when they said strip out the Roe language.

If everyone on the other side, or a lot of my colleagues on the other side, vote with us and we get a strong vote, that sends a message to the conferees that most of the people wanted to keep the Roe language. I trust they will come back after conference with the Roe language. Send this bill into conference with a strong vote for Roe, and we expect Roe will come back in the bill.

I think it is important to look at what happened before Roe so I am going to read a couple of statements. Dr. Douglas Black, Concord, NH, was then—pre-Roe, pre-1973—an OB/GYN. He did his specialty training in New York City from 1959 to 1963. During that time he saw hundreds of botched back-alley abortions, and many women died. But that was only the tip of the iceberg. For every one woman who died, there were many others who were rendered pelvic cripples. He said it was not a pretty sight, and he remembers doing hysterectomies on 13-year-old girls. Also, he and others were often unable to treat women until the women told police where they had gotten the abortion.

Dr. Black says:

I can vividly remember pot-bellied, cigar-chomping detectives picking on some young, very sick kid, bleeding excessively, with shaking chills of fever and a high temperature.

That is what it was like pre-Roe. That is why Senator Harkin offered this amendment. That is why the Senate voted for it and that is why we disagree with the House stripping out this amendment supporting Roe.

Let me read another one. This one is from Philadelphia, PA, Dr. Louis Gerstley. Dr. Gerstley has been an obstetrician and gynecologist since the early 1950s. From 1956 through 1967, he worked at the Philadelphia General Hospital, where a 32-bed ward was kept purely for the end results of badly botched abortions. Imagine that, they had beds set aside for women who had to go to the back alleys and sneak and pass dollar bills across a table to some back-alley abortionist. The beds were constantly filled, and Dr. Gerstley saw women who were sick, who were dying, and who died.

He remembers one 22-year-old woman in particular who came into the ward suffering from septic shock from a botched abortion. He and others worked on her for 6 hours and finally decided to give her a hysterectomy to save her life. The procedure was performed without anesthesia because she had no blood pressure and no pulse. The patient died. Dr.
Gerstley has said:

I never want to see that again.

He opposes the criminalization of abortion. That is why we are here, because we want a strong vote going into conference that Roe v. Wade should not be reversed.

Let us look at Senator Harkin's language again. It is very temperate, very clear, and very important. It is worth a debate. I appreciate the fact that we have a debate about Roe.

It is the sense of the Senate that the decision of the Supreme Court in Roe v. Wade was appropriate and secures an important right; and such decisions should not be overturned.

It is very simple, very elegant.

We do not want back-alley people, who are not doctors, who are not trained, to touch a young girl in trouble, or anyone who deserves to have their health protected. Their health must be protected. That is why Roe is so important.
Dr. Robert Prince from Dallas, TX, has been an OB/GYN since 1958. At the end of his third year of medicine, he did a research fellowship in Nashville, TN. One of his duties was to perform autopsies. Since abortions were illegal, any death attributed to an abortion required an autopsy. In his own words:

My first case was that of a 20-year-old college student, who had been brought into the emergency room by her boyfriend for vaginal bleeding. She had gone to a nurse's aide, who had attempted to place a catheter in the cervix to effect an abortion. A vital blood vessel was damaged, and the patient was in shock when she arrived at the emergency room. .    .    . In a clinic setting, this patient would have survived in spite of the injury .    .    . if abortions were legal, she would have survived.
How often did this happen in the pre-Roe years? Multiply the scenario by a thousand.

Rollyn Carlson, Austin, TX, was 20 years old in the summer of 1971 and pregnant. She decided to have an abortion and found an office in Mexico on the other side of the Texas border. After the abortion, she bled heavily and ran a high fever for 3 days. She was one of the lucky ones. She married and had two children. She now has a teenage daughter and is concerned about her. What if she got pregnant? What if she needed an abortion? Rollyn worries that if abortion is illegal, her daughter would have to have an illegal abortion and could die.

Here is the point. People in our country can make their own decisions in a personal, private, difficult moral, sometimes religious, decision. Some will decide to have the child, to keep the child, to love the child. Some will decide to put the child up for adoption. Some will decide to have a legal abortion in the early stages.

Under Roe v. Wade, if a person waits until the end, that is a time when the State can step in, always, and say, no—but always protecting the health and the life of the woman. Again, that is why Roe is so important. That is why being pro-choice is so important, because it says that I respect you. I will do anything I can to protect your right to decide however you want to decide. I will not force you to decide the way I want you to decide.

I wasn't elected to be God. I am a Senator. I was elected to respect you and respect your freedom and to pass laws that balance your rights with other rights. Roe v. Wade was that type of decision. It is very important that it not be overturned.
It is very important that it be part of this law that is in front of us because the law that is in front of us makes an exception for the health of a woman.

If we have the Roe language, we are sending a signal that, yes, a majority wants to ban this procedure. They couldn't get the votes to have an exception for health, but we still support Roe. That is why this is important. This is not some technical matter that we voice vote. This is a moment in time where we can discuss and debate the wisdom of the Harkin amendment, which is very clear and simply says Roe is important.

I want to read this. Some of the stories are very hard. This woman's name is Romanita, from Pittsburgh, Pa. Romanita married and had three children, one, her daughter Norma, with spinal bifida. Her husband was a heroin addict and had left the home. One day he showed up and he raped her. He then disappeared and she found that she was pregnant. She sought an illegal abortion and experienced bleeding for 2 weeks. She lived to tell the tale.

Again, our being here is not frivolous. I hope the other side will not paint it as such. We have so many issues facing our country today that are so important. We have an economy that has lost 3 million jobs in the last couple of years. We have deficits as far as the eye can see. We have to deal with that. We have environmental laws that have been rolled back. We have to deal with that. We have our young men and women in Iraq in terrible danger, without much help from the international community, unfortunately. We have a request for $87 billion. We have to deal with that. We have to work that out in a way that protects the troops and yet makes sure we have some kind of exit strategy and we are not turning our back on the needs of our own people. We want to make sure procurement reform is done, so when Iraq is rebuilt it is done in a way that is fair.

All those issues are before us. I don't come to the floor in a frivolous manner because I am working on all those issues. I have an important hearing today that involves a big industry in my State that is in some kind of trouble. We are having a hearing about that. So, no, I have come here early in the morning because I want to make the case to my colleagues as to why we are calling for a vote on this issue of Roe v. Wade. We are asking our colleagues to strongly disagree with what the
House did when they stripped out the Harkin language. We want to send a strong message—hopefully, a very large number of votes will come our way on this one—to the conferees: Keep the Harkin language in the bill, please. We know we differ with the House. But we are right on this one.

I thank you, Mr. President, and I thank my colleague from Pennsylvania for being so gracious as to allow me to open this debate. I know he will have a vigorous dissent, and I respect that. I suspect we will dissent on this matter many times in the future if we are both here to be able to do that. Of course that is up to the people of our States.

I yield the remainder of my time and yield the floor.

BREAK IN TRANSCRIPT

Mrs. BOXER. Let me say to my friend, one death is too many, if it is your wife. We could debate the numbers. I gave you cases, cases, cases here. A woman who was raped and had to go get an illegal abortion. I have so many more of these.

I have the data and I have the sources. I will, before the end of the morning, have them printed in the RECORD. But, again, there are varying estimates. I have never heard the one, 83, as being a serious estimate.

Be that as it may, Roe v. Wade says that you always protect the life and health of a woman. That is a basic disagreement you and I have.

Mr. SANTORUM. I appreciate the basic disagreement. I think we are allowed to disagree on our opinions. We are not allowed to argue and disagree with the facts. The facts are what they are. This is from the Centers for Disease Control. These are numbers out of the abstract. I will be happy to give them to the Senator. But these are from the National Center for Health Statistics of the Department of HEW. This was in 1975, so that is from the Department of Health, Education and Welfare at the time. These were the official statistics of the United States.

Again, I am not challenging the remarks of the Senator that every life is important. But I think presenting accurate evidence is also important if we are going to have a discussion about what the case was. Let's look at the case of abortion-related deaths. In 1942 there were 1,231; total maternal deaths were 7,267. Every single year, without fail, every single year, the total number of maternal deaths went down because medicine improved. The total number of abortion-related deaths went down. Why? Every year, I believe, without fail—there are 1 or 2 years where it popped back up and dropped back down—it went down almost in a direct line and was continuing to go down. So the idea that Roe v. Wade is saving even—in 1973 there were 36. The bottom line is that very few—given the number of pregnancies that were occurring in those years—very few women died as a result of "botched" abortions. The idea that thousands and thousands were—well, I will quote for you Bernard Nathanson, who was an abortion doctor at that time. He says:

How many deaths are we talking about when abortion was illegal? In NARAL [that's the National Abortion Rights Action League] we generally emphasize the drama of the individual case.

You heard the Senator from California come back when I said the statistics are wrong.

We talk about the individual case, not the mass statistics. But when we spoke about the latter it was always 5,000 to 10,000 deaths a year. I confess I knew these 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?

The bottom line is we are making a policy decision based on, hopefully, factual evidence. I want to make that clear.

A couple of other things about what the Senator from California said and last night the Senator from Iowa said, that a majority of Americans support Roe v. Wade. Maybe if you asked the question, "Do you support Roe v. Wade?" a majority of Americans would say, "Yes, it is the law of the land." Most people, if it is the law, generally comply with the law and so most people say it is probably fine, although if you describe what the law is without saying it is Roe v. Wade
and ask if they agree, you find that a majority of Americans do not agree with Roe v. Wade.

In fact, there was a study done a couple of months ago by the Center for the Advancement of Women. Faye Wattleton, a very well known abortion rights advocate, formerly affiliated with Planned Parenthood—I believe the head of Planned
Parenthood—instituted a study this summer, and they asked the question about abortion to women—not to men, to women. They found that 17 percent of women in America—this is a pro-choice group—17 percent of women in America said abortion should be banned, period—never legal. Another 34 percent said it should be against the law except in the case of rape, incest, and life of the mother. If you add 17 and 34—I will get one of the pages to add that up for me—it is 51; 51 percent of American women are either against abortion, period, or only in the case of rape, incest, and life of the mother, which if you ask people in this Chamber if you are against abortion except in the case of rape, incest, and life of the mother, you are considered pro-life. Most people in this Chamber who are pro-life are for the exception of rape, incest, and life of the mother.

So the majority of American women, according to an abortion rights group—who, by the way, described the results of this as "disappointing"—don't agree with Roe v. Wade. A majority of American women do not agree.

Let me broaden that even further. They asked this question, as an option: It should be available but under stricter limits than now. In other words, it should be less available than Roe v. Wade allows. Add another 17 percent to that. Now we are up to 68 percent of women in this country who believe Roe v. Wade is wrong; 68 percent of women disagree with Roe v. Wade.

Now, the fourth category was: It should be generally available to those who want it. This is a very tricky thing. It should be generally available. It did not say, it should be what Roe v. Wade is, the law: It shall be available for any reason at any time.
That is what Roe v. Wade is. This idea that this is a moderate, reasonable provision, Roe v. Wade, is nonsense.
Roe v. Wade and its subsequent decisions have established an absolute right to an abortion at any point in time. The Senator from California says the State can prohibit abortions, late-term abortions. I asked the Senator, and I have asked her more than once in these debates, and today—she has not provided any evidence—I asked her to give me one example where an abortion was stopped in this country under Roe v. Wade, an example where someone wanted an abortion and, because of the Supreme Court decisions, was barred. It does not happen. Why? The Senator says, well, there is this health exception that is very important. There always has to be a health exception.

Look at the Supreme Court cases that define what a health exception is. According to Doe v. Bolton, the companion case to
Roe v. Wade, health means any health: Mental health, physical health, economic health, stress, distress. Anything that could possibly affect mental or physical health is a health exception.

What does that mean? This is an exception that swallows the rule. The health exception means that abortion is legal, period, up until the moment that the child is completely separated.

The point of the partial-birth abortion debate is the child is all but separated. The child is completely delivered except for the head. And you do not believe Roe v. Wade is extreme? Under Roe v. Wade, this Supreme Court said that 3 inches from separation still is covered by Roe v. Wade. At 38 weeks, 3 inches from being born, you can still kill your child.

It was interesting, when the Senator from California went through the different options a woman has. She said you can deliver your child and take it home, you can deliver your child and give it up for adoption, or you can terminate the pregnancy. She did not say—she used the term "child" in the first two instances, but in the third instance it is "terminated pregnancy," as if the child does not exist.

The third option is to kill your child. That is the option. It is very stark. It sounds rather cold, chilly, but it is.
In the extreme nature of Roe v. Wade, if really known by the American public, these numbers I have been reading would be even higher—this 30 percent that says it should be generally available.

If you ask the question, Should it be available for all circumstances at any time up to the moment of separation, including up to 39½ weeks, I daresay the number of people who would be supportive of Roe v. Wade, which is the law, would be in the very low double digits and, I would hope, single digits. But I don't know that. I have not seen any polling on that because no pollster asks the question of what the law really is. They put it in fuzzy terms to gather more people. But even with this fuzzy language, even written in a way for the pro-choice groups to get the best number they possibly can, two-thirds of the American people oppose Roe v. Wade.

I find it remarkable the Senator from Iowa last night got up and called my opposition to this extreme when two-thirds—I said of people, two-thirds of American women—say what the Senator from Iowa is doing is extreme, is wrong, is not what they believe. He does not represent them. His extreme views—and they are extreme, not by my definition, not by my morality, not by my theology, but looking at what the American public believes. Extreme means out of the mainstream, on the edge.

If you look at the polling data now on abortion, Roe v. Wade is on the edge; it is not where the American public is. One of the reasons for that, I happen to believe, is medical science. I saw a TV commercial the other day of what I think is called the 4-D sonogram, where you can actually see these 3- or 4-D images—I don't know what they are—but color images of a child in the womb. I saw an article in the paper talking about how they can see a baby in the womb smile and have facial expressions. It gave rise to a study or discussion as to whether children of the womb feel pain, or how much.

It is very hard for the American public—and I know this is a battle that people usually internalize, and most people do not talk about abortion—when they see those images, see this little baby in the womb. There is a commercial. It is a GE commercial, and I thank them for the courage to run the commercial. I know it was incredible the amount of heat they got. From whom? From these organizations that call themselves women's rights organizations, pressuring General Electric to pull the ad.

These are women's rights organizations that don't want women to know what is going on within their own body, but they are women's rights organizations. They want to hide facts from the very people they want to, "give rights to." They don't want them to see. They want to keep the deception to the very people whose rights they say they are protecting.

But General Electric, to their credit, kept the ad about this incredible new technology. At the end of the ad, you see this closeup of this baby in the womb—this little face—and then it dissolves into the face of the baby, subsequently, after the baby is born—the same face. It is not a different baby. It is not one baby in the womb and another baby in its mother's arms a couple months later. It is the same baby.

But the other side, the "women's rights" organizations, don't want you to know that. They don't want you to see that.
They don't want you to understand what abortion is.

The reason I have been so passionate about the issue of partial-birth abortion is because, for a long time in this country, the whole debate about abortion was about the rights of women only—only. You never saw the baby because in an abortion, you do not see the baby. In partial-birth abortion, you cannot miss the baby. It is a baby. It is moving. This baby would otherwise be born alive because of the late-term nature of when these abortions are done. We are being called extreme because we do not want to allow a procedure which allows the baby—who would otherwise be born alive, who in 99 percent of the cases is healthy, with a healthy mother—to be delivered in a breach position, and have a pair of scissors thrust into the back of the baby's head, when they are literally inches away from being born? We are extreme if we want to stop that?

George Orwell, in 1984, could not have thought we could twist the English language so much that such horrendous actions would be twisted to somehow we would be the extremists in trying to defend the rights of these little children not to be treated in such a horrible fashion.

No. No. We are going to proceed. And we are going to proceed with this debate on the motion to disagree with House amendments. And I make a request of every one of my colleagues from both sides of the aisle to vote to disagree with the House amendment. Why? Because that is the way you get to conference.

This is a procedural motion. I never, in my 9 years, recall that we ever had a debate about what is strictly a procedural motion to go to conference. But some point is trying to be made, which, frankly, escapes me, that somehow if we vote for the disagreement, somehow we are arguing that we are for the Senate version versus the House version. What we are for is a bill that will be passed by both Chambers and signed by the President, and that will be the original contents of S. 3, which I suspect will pass here and pass, hopefully, by a very large margin.

I want to go through some of the points the Senator from California made. She talks about the medical evidence, and she put a chart up of all of the things that could go wrong with a woman in the cases of not having a partial-birth abortion available.
I think we just need to review the facts. Again, you are entitled to your own opinion. You are not entitled to your own facts.

Five thousand people dying from abortion prior to Roe v. Wade a year—factually incorrect, unsupportable. We have people who were involved in the movement, as I commented earlier, who said they made up the number. Yet 30 years later, they are still using the number in spite of the National Center for Health Statistics, the Federal agency at the time that was responsible for keeping track of the number of maternal deaths, deaths of mothers due to abortion, saying—actually, there were two organizations. One was the Center for Disease Control. They said 83. They just began that year keeping track.
And then the National Center for Health Statistics said 70. So somewhere between 70 and 83, not 5,000.

You are not entitled to your own facts to influence the decisionmaking of the American public or Members of Congress. If you are going to make your argument, you are entitled to your opinion. I can respect your opinion. A lot of people hold that opinion in this country, and it should be represented here, but it should be represented honestly. It should be an honest debate about what the case was before Roe v. Wade, and an honest debate as to what the case is now. I would argue that neither has been put forward by the other side.

They exaggerate claims of what was going on before. They minimize what is going on now. They minimize the real effects of Roe v. Wade. You never hear them talk about the 1.3 million abortions a year that go on. I am not talking about 5,000 or 83. I am talking about 1.3 million children die from abortion in this country—a third of all pregnancies; somewhat less than a third now. Thankfully, it has come down. But for roughly a third of all children conceived in this country, their lives end before they have a chance to enjoy the freedoms this country provides.

Last night, I had a discussion of how this country on this issue is out of whack, how we have put the liberty rights of a woman above the life rights of her child. As I said last night, the last time we did that in this country was back in the early 1800s. We put the liberty rights of the slave owner above the life rights of the slave.

I refer and have referred to the Roe v. Wade decision as Dred Scott II because it is the second time in the history of this country we have taken the fundamental premise of our country—the founding document of our country, the Declaration of Independence, which said, "We hold these truths to be self-evident"—back then we actually used very lofty terms such as "truths," absolute things that we all agreed on, the truth. They believed there was a truth and that you could actually find what that truth is.

We said: We hold these truths to be self-evident that all men are created equal—all—and that they are endowed by our
Creator with certain inalienable rights. And they listed three—the three foundational rights upon which this country was founded—life, liberty, and the pursuit of happiness—not liberty, happiness, life; not happiness, life, liberty—life, liberty, happiness. Why? Because it sounded better? Life, liberty, pursuit of happiness sounds better than happiness, liberty, life?
Is that why they did that? It sounded better? Jefferson was good at writing, and he just said: Boy, this sounds better. I will put life, liberty, pursuit of happiness. That sounds nice?

How many people think that is the reason they did it that way?

Of course not. He wrote it that way because that is the way you have to write it. You can't have happiness without freedom and liberty. How can you truly be happy, how can you truly pursue what God has called you to do in this life if you are not free to do it, if someone tells you what you must do or what you must say, what you must believe. Likewise, how can you be free, how can you have liberty if you are dead or the equivalent of dead in the case of the slave? They are there for a reason, and they are in that order for a reason. Roe v. Wade scrambles them, just like Dred Scott scrambled them.
It was wrong then. It is wrong now. It was legal then. Why? Because the Supreme Court said so. It is legal now. Why?
Because the Supreme Court said so.

Back then a bunch of people stood up on this very floor and said no. Millions of people across America said no. We had great leaders in our country, including President Lincoln, who said no. Remember the mainstream view was, who are we to tell others how they should live their life? Who are we? I am not God. How can I tell a slaveholder they can't do something they did in the Bible, own slaves? That has been the tradition of this country. Who am I to make those choices for other people? I trust them. I trust their judgment. I trust their morality. How dare you not trust these people that they are not treating these people kindly, that they aren't doing the right thing for them? How uneducated of you to feel that way.

Do these arguments have a somewhat familiar ring to them? It is the same debate. It is just as wrong. For it is our job here to say what is right and what is wrong. That is what laws are. Laws are the reflection of the collective morality of our country. Roe v. Wade was a usurpation of that collective morality. It was a hijacking of the collective morality of this country by nine Justices of the Supreme Court who decided they would play God. Now we just follow along as so many did in the early 1800s. They just followed along. Why? Because it was the law. And who are we to judge these people who own these slaves? Who are we? Who are we? That is a question all of us need to ask: Who are you? How much are you standing up for what you believe is right and what, in many cases, we know is right, and how often do you just sort of turn away and say: Well, that is the law? It is an uncomfortable issue and we will just leave it alone. And so we pass language, sense-of-the-Senate language that says this law, Dred Scott II, is something that should continue in America.

I believe, as much as I believe that I am standing right here today, that this law will be overturned, not by the courage of Senators, not by the courage of Governors or judges, but by the wisdom of the American people. We are seeing it happen.
The more people find out about the injustice that abortion is and the extremeness of Roe v. Wade, people are changing.
That is why there is this desperate attempt to hang on, to codify Roe v. Wade or to support Roe v. Wade, to prop it back up, this wretched decision that is affecting so much of society.

We are going to have a chance in a few weeks, once we pass this resolution of disagreement, to vote on the conference report on S. 3, which is the partial-Birth Abortion Ban Act. We will have an opportunity—I hope it will not be filibustered—to vote straight up or down on whether to send this bill to the President, which he said he will sign, and send it across the street. That is where it is going to end up. Across the street from the Senate happens to be the Supreme Court of the United States. They will have another opportunity to look at this procedure based on the factual record.

Again, I challenge any Member on either side of the aisle to come forward with a reason why this procedure needs to be legal for the health of the mother. Not one piece of evidence has been entered in the record ever that this procedure was ever necessary to protect the health of the mother. No one even makes an argument that it protects the life of the mother, but there has never been a case introduced that has not been refuted 30 different ways that suggests that this procedure is necessary for health. So the health exception of Roe v. Wade, as a result, is not applicable here because there is no medical reason why this procedure needs to be legal.

In addition, we have tightened the language. The other concern in the Court was that it was vague and could have included other late-term abortion procedures. There are many in this Chamber who would like to ban all late-term abortion procedures. That is not what this bill does. It simply bans a procedure which the vast majority of the American public, anywhere from 70 percent to 80 percent, believe should be banned. By the way, if you are with 70 or 80 percent of the American public, you are hardly on the extreme. By definition this can't be extreme if 70 to 80 percent of the American public support what you are doing.

We have tightened the language to ban a procedure, just one—this one. So there is no doubt now that the Court had before, because of the language in the Nebraska statute, that we might include other abortion techniques. We are including one technique, this one, a technique that is never used to protect the health or life of the mother. Roe v. Wade is as expansive a right as there exists today. Let me repeat that: The right to an abortion in America is more absolute than the right of free speech, than the right of freedom of assembly, than the right of freedom of the press. Under constitutional interpretation, there is no limitation on the right to abortion—none—where these others all have limits. I would argue not great limits, but they are all limited in some fashion by the Court and by statutes that have been found constitutional by this Court. Except abortion, there is no limit. There is no practical limitation on the right to an abortion.

This—candidly and unfortunately, in some respects—is not a limitation on abortion either because if it were a limitation on abortion, the Court would find it unconstitutional. But it is not.

It is a rogue procedure that candidly is unhealthy. We have mountains of evidence from experts in the maternal field of medicine who say this procedure is the least healthy option for women. Obviously, it is the most horrendous and brutal to the child.

That is our plea. It is a modest one. It is so modest that many people do not understand why we are even pursuing it on both sides of this issue. They ask, Why are you suggesting this? It is not going to do anything. It will bar one procedure that is not used very much—a few thousand times a year. But, as the Senator from California says, every life matters.
Every case is a tragedy. So we should do it if we can. We should, and we will, hopefully in a few weeks.

I yield the floor.

The PRESIDING OFFICER. The Senator from California.

Mrs. BOXER. Mr. President, thank you very much. I have gone to one meeting. And I have another hearing. I appreciate my colleague from Pennsylvania being so gracious as to work the time so I could continue to come back and forth.
Before I left the floor, I promised him I would put in the RECORD the various publications that have stated that approximately 5,000 women a year died from illegal abortions before Roe.

Mr. SANTORUM. Mr. President, will the Senator yield for a question?

Mrs. BOXER. In a moment.

The Senator read from the CDC figures. I realized as I left the floor that at the time women were having these illegal botched abortions and were dying—it made some of them infertile, and they were suffering from trauma—they were not supporting the CDC or any government entity because they would have been put in prison because abortion was illegal. Any claim that the CDC would know the accurate number of illegal abortions just flies in the face of all common sense. Women were not cooperating with the Government. They were in fact standing up to the Government which had outlawed the procedure.

I am glad to yield to the Senator.

Mr. SANTORUM. In how many States in 1972 were abortions illegal?

Mrs. BOXER. I could tell you it was illegal in my State. I will be happy to give you all of that. That isn't the point. At the point in time when the CDC was collecting these numbers, many of the women were having abortions. In my State—probably the most populous State at that time—they were not reporting these things.

My friend challenged me. I come back with the fact that I don't believe the Senator could say the United States Government knew. But I will tell you who did know.

Mr. SANTORUM. Will the Senator yield for a question.

Mrs. BOXER. I have a book that has stated that number.

I am glad to yield.

BREAK IN TRANSCRIPT

Mr. SANTORUM. I can't imagine that—first of all, this number was derived from death certificates. If a person is dead, they are not going to report an abortion. There is no concern about a woman reporting her own death because she fears being prosecuted. These numbers were derived from death certificates from hospitals and the cause of death of the women who died. It has nothing to do with self-reporting. They are dead. The idea that somehow these women aren't reporting because they are afraid of being prosecuted—with all due respect, they are dead.

Mrs. BOXER. I am talking about the number of illegal abortions.

Mr. SANTORUM. That is not the number used. The Senator used the number of 1,000 deaths.

Mrs. BOXER. Excuse me. I don't interrupt the Senator, if he would allow me to respond.

I am saying to the Senator that the collection of data at that time would not be done by someone who feared prosecution. If a person dies, I can tell you that right now doctors weren't reporting these things. Families didn't want to say their child did something illegal. The Senator is the only one I have ever met in the movement to outlaw Roe who would put the number of deaths at 83. But I want to tell the Senator that 83 deaths of women—and I have read stories and my friend has heard them, and they are brutal stories about 13-year-old girls, and women who were raped who were afraid—these people died. You can take your number of 83 which is the CDC and which would, I say, make no sense because people were afraid to death, frankly, and families were afraid to report that. Or you can take the number of 5,000 which has been written about quite a bit in science magazines, or you can take some other number in the middle. My friend can pick whatever number he wants.
He has chosen the number of 83 women who died. That is 83 families destroyed. But you can belittle. That is fine.

The bottom line is that Roe v. Wade said the Government has a right after viability to ban abortions. But there is always an exception for the health of the woman.

My friend can sugar-coat his bill any way he wants. But the fact is even the people who want to ban abortions have written—and I just read an account today where one gentleman who was a big leader in this movement to overturn Roe said this bill is unconstitutional.

That is the reason why it is important for us to say we support Roe, because this Senate shouldn't be reporting language that is unconstitutional and which jeopardizes the health of a woman.

Mr. SANTORUM. Will the Senator yield?

Mrs. BOXER. I yield for one more question. I appreciate having a chance to finish my remarks.

Mr. SANTORUM. I want to clarify and put a question to the Senator. Using my numbers—these are not my numbers; these are the numbers from Department of Health, Education and Welfare back in 1975. The Senator says people didn't want to report that. I want to clarify for the RECORD that these are figures derived from death certificates. My question is, Is the Senator suggesting that doctors lied on death certificates about the reason for the death? That is what the Senator is suggesting.

Mrs. BOXER. I am suggesting to my friend that when people could go to prison because a woman had an abortion in the early stages of her pregnancy—this is my opinion—I don't believe there is going to be accurate reporting. I think it had a terrible impact on people. People were so frightened.

We have testimony from a doctor who said that while a woman was on the table bleeding to death, the doctor was afraid to perform an abortion because—he was allowed to do it because the woman was raped, but he was afraid until the police cleared it.

The bottom line is this was a period in our history where women were made to feel like criminals. I remember those days. Women's lives were lost. The number of illegal abortions is hard to determine. It is hard to determine the cause of death.
The fact of the matter is I don't know too many people who believe the number of 85. There are people who lived in those days who saw how many women were having these abortions. Perhaps they were raped. Perhaps it was a situation where they wanted a family, and that wasn't to be. Whatever the reason, it was happening. They weren't reported, and I don't believe the deaths were accurately reported.

The point is, Why are we here having this debate? Would I still be standing here if I believed that "only" 85 women a year died? Yes, I would be, because that is too many deaths, if it is your friend, if it is your mother, if it is your sister, or if it is your aunt.

The question isn't only how many illegal abortions there were and how many women died. The Senator made no reference to how many women became infertile. Then the Senator says something that is totally untrue—that we have never placed into the RECORD at all any statement that shows that by banning this procedure which is banned in this bill with the health exception there could be health damage.

There is testimony of Anne Davis before a hearing of the Subcommittee on the Constitution of the House Judiciary Committee. She is a physician licensed to practice medicine in New York, and she is a board-certified OB/GYN. She got her education at Columbia. She is a fellow of the American College of OB/GYN.

With all due respect to my colleague from Pennsylvania—and I totally respect his right to his opinion and would fight for his right to have it—I trust an OB/GYN more than I do him on matters pertaining to a woman's health and her body.

She says this bill will severely limit physicians' ability to provide the best medical care to their patients. She says it is confusing; it is contradictory; it would be difficult for physicians to interpret. And she says she believes after reading it, the bill appears to ban safe and common abortion procedures used well before fetal viability. By the way, this was another ground on which the Supreme Court overturned a similar Nebraska statute. It said it was vague.

She says the bill leaves physicians with an untenable choice of not being able to provide the appropriate medical care and, she says, it poses grave risks to the patient. Let me repeat that. My colleague said there was not one bit of evidence that the procedure that is banned—not one bit of evidence—that it could hurt a woman and that I put none in the RECORD.

I refer to my colleagues the testimony of Anne R. Davis, M.D., before the House Subcommittee on the Constitution on March 25, 2003.

Mr. President, she says it puts patients at risk, and she goes on about it. She goes into great detail. I will not take the Senate's time because it is highly technical and it has to do with medicine, and this is not, as I said, a doctor's office. It is the Senate floor.

It goes on for pages and pages. The bottom line is, she is saying there are times when this procedure that is banned is the one that is necessary to protect women. As a matter of fact, she has a whole section titled: "The bill lacks necessary exceptions to protect women's health and their lives." And she goes through that.

This is the first document for the RECORD. It is 11 pages. I hope Senator Santorum will take the time to look at that.

Then I have a very important letter from another OB/GYN. As a matter of fact, she is an adjunct professor in the Department of Obstetrics, Gynecology, and Reproductive Sciences at UC-San Francisco where she directs the Center for Reproductive Health Research and Policy. She says she represented the United States at the International Conference on Population and Development. She served on a number of boards of organizations that promote emergency contraception and new contraceptive technologies and supports reducing teen pregnancy. I hope my friends agree that is a good idea. Her area of expertise is family planning and reproductive health.

Very clearly in her four-page letter to us—again, a lot of which is technical—she lists these very problems of what could happen to a woman if there is no health exception in the bill. Here is what she says: Death, infertility, paralysis, coma, stroke, hemorrhage, brain damage, infection, liver damage, and kidney damage.

The Senator from Pennsylvania said I never put anything in the RECORD that said if they cannot use this procedure that is banned in this bill there would be problems. Here is another, Felicia Stewart, M.D., with the highest qualifications you would ever want to have if you ever needed to go to an OB/GYN, which none of my male colleagues would ever have to do, but my female colleagues would have to do.

I ask unanimous consent to print this letter in the RECORD.