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Partial-Birth Abortion Ban Act of 2003-Conference Report

Location: Washington, DC


The PRESIDING OFFICER. Under the previous order, the Senate will proceed to the consideration of the conference report to accompany S. 3. The clerk will report.

The assistant legislative clerk read as follows:

The committee of conference on the disagreeing votes of the two Houses on the amendment of the House to the bill (S. 3) to prohibit the procedure commonly known as partial-birth abortion, having met, have agreed that the Senate recede from its disagreement to the amendment of the House, and agree to the same with an amendment, signed by a majority of the conferees on the part of both Houses.

(The Conference Report was printed in the House proceedings of September 30, 2003.)

The PRESIDING OFFICER. Under the previous order, there will be up to 4 hours for debate equally divided between the majority leader or his designee and the Senator from California or her designee.

The Senator from Pennsylvania.

Mr. SANTORUM. Madam President, I would like to enter into a time agreement for the first portion of the time allotted in this debate. I ask unanimous consent I be given the first 20 minutes until 11 o'clock; following that, the Senator from
California be recognized for 20 minutes; following the Senator from California, the Senator from Alabama, Mr. Sessions, be recognized for 10 minutes; following the Senator from Alabama, the Senator from Kansas, Mr. Brownback, be recognized for 20 minutes; following Senator Brownback, the Senator from California would then be recognized for 30 minutes. We will stop there and go from that point.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mrs. BOXER. I have a question. That would take Senator Brownback until 11:40 or 11:45?

Mr. SANTORUM. To 11:50, and the Senator from California would have until 12:20.

Mrs. BOXER. I thank the Senator.

The PRESIDING OFFICER. The Senator from Pennsylvania.

Mr. SANTORUM. Madam President, we are here today on the verge of something the United States has done on two previous occasions; that is, pass a conference report to ban a partial-birth abortion procedure to be done in the United States of America. The only difference this time is we have a President who has said he is willing to sign this legislation.
This is a very important day for this country and for those babies who would be the object of this brutal procedure. Having it banned in the United States of America is a historic event and a step forward in human rights for this country.

We have overcome two Presidential vetoes but now have a President who will sign this legislation.

The other thing that stopped this legislation from moving forward and becoming law was the United States Supreme Court decision in the Nebraska partial-birth abortion case. We have addressed those issues. There were two issues the court cited as its reason—in a 5-to-4 decision—for finding the Nebraska partial-birth abortion statute unconstitutional.

Those two reasons were, No. 1, that the statute was vague. We have amended the language of this statute to make sure that the description of a partial-birth abortion is clear to include only those types of abortions and not other late-term abortion procedures, which was the concern of the court. We did so by a couple of things, but the most essential part was that the court found that the prior description could have included other forms of abortion because during other types of late-term abortion procedures there may be a portion of the baby's body that at some point during the abortion procedure may come outside of the mother.

As a result of that, this could have been broadly construed to abolish those procedures, also.

In our language we are very clear. We say that the term "partial-birth abortion" means an abortion which the person performing the abortion:

(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, [all new language] the entire fetal head is outside of the body of the mother, or, in the case of breech presentation, [that is, feet first] any part of the fetal trunk past the navel is outside of the body of the mother .    .    .

Now, that specificity of talking about the way in which the child is delivered and then killed is fundamentally different than anything we had before. All we said before was that some portion of a living, intact fetus must be outside of the mother.
That, the court found, was a little too vague for them. It could have included other types of abortions. So we are being very clear. There is no other abortion procedure which the entire fetal head would be presented with the child still being alive out of the mother, or the child would be delivered all but the head at this point and then be killed. There can be no confusion as to what procedure we are talking about in this case.

We believe with the language we have put in this bill we have now solved the constitutional problem of vagueness.

The second issue is the issue of women's health. We have a substantial section of findings in this legislation. Much of those findings occurred since the case was tried at the district court level of Nebraska, which was the record upon which the
Supreme Court made its decision. There has been a substantial amount of evidence that has been printed in the record in Congress at congressional hearings that show not only the overwhelming weight of evidence but the dispositive weight of that evidence in this procedure is never—I underscore never—necessary to protect the health of the mother.

So the court found there needed to be a health exception because there may have been, according to the record they looked at in the Nebraska case, there may have been an instance in which this could have been necessary.

We have, without question, clarified that record to make sure that the court knows that there is no medical evidence out there that this procedure is ever necessary to protect the health of a mother, and therefore falls outside of Roe v. Wade where a health exception is necessary. In fact, the overwhelming weight of medical evidence suggests this is a dangerous procedure, a much more dangerous procedure for a woman than the other abortion procedures that are used at this time in pregnancy.

We believe this bill is constitutionally sound and obviously very necessary from the standpoint of who we are as a society and, I argue, for just basic human rights.

The question is, Why are we doing this? Let me describe the procedure. I did not do that when we had the conference report being moved to conference, but I think it is important for people who may not be familiar with this procedure to see this procedure. I hope sensibilities are shaken to the point where I do not have to explain why we want to ban this procedure; that by going through this procedure and showing what happens to a baby who is at least 20 weeks of gestation—in other words, at least halfway through the pregnancy; with 40 weeks gestation, this is at least 20 weeks, and in many cases, 21, 22, 23, 24 weeks, and in rarer cases, beyond that—but these are babies who would otherwise, had they been delivered, be born alive.

Now, in the case of 20 and 21 weeks, the chance of them surviving are not particularly high, although there are cases in which babies at 21 weeks have survived. But the point is these are children who would otherwise be born alive, and the people who perform these abortions, the abortion provider organizations, have testified that these abortions are performed on healthy mothers with healthy children. These are healthy children who otherwise would be born alive had this procedure not been performed on them. I put that in the context of this is what we are doing to healthy children, with healthy mothers who otherwise would be born alive. These are children who, again, the medical evidence has been presented, that experience and feel pain.

The partial-birth abortion takes 3 days. That is the normal time. What the doctor does when the mother presents to the abortionist—and I say the "abortionist" because these are only done—again, this is clear from the record—these are only done in abortion clinics. The person who designed this procedure did so, and he testified to this, for his convenience because he can do more of them quicker. He can do more abortions more often. He is in business. These late-term abortions are more complicated than earlier term abortions, and they take more time using other methods, so he designed a method that would take less time. So this method was designed not to protect the health of the mother.

In fact, it is less healthy; it is not to protect the mother's life. It is never done in the case of an emergency.

You would not do this in the case of an emergency because it takes 3 days to do this. It is done for the convenience of the abortionist, for them to make more money.

So this procedure was designed for the mother to be presented, to be given something to help dilate the cervix. So when the mother re-presents in a couple of days, her cervix is dilated, the doctor has access to the baby at this point.

What happens is, the doctor then takes the baby—because usually at that gestational age the baby is in a breach position—and goes into the uterus and grabs the child by one of the limbs, usually the leg or the foot, and then—if the next chart will come up—pulls out the baby through the birth canal, feet first.

Now, I have been blessed to have my wife deliver seven children. One of the fears of any pregnancy is having the child being in a breach position. Every obstetrician knows, everybody who has ever gone through a pregnancy knows, that a breach position is a dangerous position for the baby to be in; it is not the natural position to deliver a child. So what we are doing here is performing a procedure that is inherently dangerous; that is, delivering in a breach position.

So you are pulling the baby through the birth canal. Again, this baby is alive. If the baby is not alive, it is not a partial-birth abortion under the definition of the statute. The baby has to be alive and intact. So the baby is being pulled by these forceps from the mother.

Again, it is being pulled out completely—and, again, the definition that is in the statute—until the trunk is exposed, at least past the navel. So at least the lower extremities of the baby are exposed outside of the mother. As such, the term "partial birth" comes from the fact that the baby is partially born, is in the process of being delivered.

The physician—as you can see—is holding the baby in his or her hand. This child weighs about 1 pound. This is a fully formed baby. It is not completely formed, obviously, because it is of only 20 weeks gestation, but hands, arms—everything—legs, toes, ears, et cetera, all these things you see here, that is what a baby at that gestational age looks like. And the relative size, vis-a-vis the size of the hand, is a pretty accurate depiction. This is not a cartoon. This is an accurate scale medical drawing.

As you can see from the next depiction, the baby is born, really, with the exception of the head. The thing that grabs at me is, here is this child who is literally inches away from being born, who would otherwise be born alive, and in almost all cases is a healthy child—it is not being done for any health reason of the mother or life reason of the mother; it is simply being done because the mother wants to terminate her pregnancy very late in the pregnancy—and the doctor has to hold this living child in his or her hand, with the heart beating, with the baby, who is probably in shock at this point, but moving and alive.

Then what the procedure calls for is these scissors, called Metzenbaum scissors. The doctor feels up the baby's back. The doctor finds the base of the skull and then takes these sharp scissors and probes in to find the point right at the base of the skull—and, as you know, a baby's skull is soft. So they take these scissors and they thrust them into the baby's skull.

Now, Nurse Brenda Shafer, who has testified before Congress, said that when that thrusting action took place, she saw the baby's arms and legs spasm out like this—like a baby you would hold, and if you pretended you were going to drop the baby, how the baby sometimes would spasm their arms and legs out like that. That is what she said happened.

Then, as you see from this picture, the baby's arms and legs go limp, because when you thrust a pair of scissors in the back of baby's skull, you kill the baby.

But that is not enough. Now we have to remove the rest of the baby. So what the abortionist does is take a suction catheter, a vacuum hose, and, in the hole created by these scissors, they place a vacuum hose, and they suck the baby's brains out to collapse the skull. It is a soft skull. At that point, the rest of the baby can then be removed from the mother's womb.

This goes on in America virtually every day, maybe more than once or twice a day, depending on whom you believe, anywhere from a few hundred times a year to a few thousand times a year. We never have very good information because the very people who collect that information are the people who oppose this procedure being banned, so they try not to publicize too much about what they do.

But the fact is, if it occurred once in America a year, this kind of treatment to an innocent child, who would otherwise be born alive—was healthy, with a healthy mother—there is no excuse for it.

So when people ask the question, "Senator, why do you keep bringing this procedure back up to the Senate floor; it only stops one procedure; you are not banning other procedures that are used," my answer is, "Because this is horrendous."

In America, whether we like it or not, we are the beacon of freedom, but in many cases we are also the model of what is right and just. The world looks to us as Americans, as free people, as people who, probably uniquely in the world, get a chance to determine what our law should be, what our collective morality should be, what our culture looks like because of the enormous freedom we have.

The heart and soul of America is reflected through our laws, unlike other countries that do not allow that democratic process to work so effectively. So when America passes laws, or when America allows certain behavior to occur, the world looks at that law or that behavior as supported by the collective consciousness and morality of the American public.

When they see this, what do they think of us? What do they think of us? What kind of culture do you think the rest of the world thinks America is all about? What kind of morality or ethics do you think the world thinks America is all about when they look at us and see that we allow this to be done to innocent little children?

So I think it is important for us to have laws that proscribe things that we would not want our children to see, that I know a lot of people do not want their children to see. My goodness, this goes on and you want little children to see this? We don't want the rest of the world to see that we allow this kind of brutality to occur to innocent little children.

So the answer is, we need to do this for ourselves. We need to police ourselves in what we are going to allow in our culture.
We cannot allow this kind of brutality to corrupt us, to corrupt our soul. And that is what it does. It makes us a much more brutal and harsh country if we stand here and say, yes, for whatever reason, we are going to allow this to occur. It coarsens us, it dulls our senses, and that dulling of the senses has a corrupting effect on not just how we treat little ones here but how we treat each other in every aspect of our lives.

Madam President, I yield the floor.


Mr. SANTORUM. Mr. President, it is very clear to me that the Senator from New Jersey and I have a fundamental difference on how we view this issue. For the Senator from New Jersey to liken this procedure to the removal of an intestine, to compare the killing of a fetus——

Mr. LAUTENBERG. Will the Senator yield?

Mr. SANTORUM. To compare the killing of a fetus to the removal of an intestine—a fetus like in this picture, where you can see that little hand, that is a 21-week-old. That is the age at which these children are killed by partial-birth abortion. To compare the killing and extinguishing of life to the removal of an intestine is——

Mr. LAUTENBERG. Will the Senator yield for a very brief question? My father was 42 when he was stricken with colon cancer and he had his intestine removed to try to save his life. It was an ugly, painful procedure. As I equate this with any painful procedure that is surgically necessary. They tried to save his life but were unsuccessful.

Mr. SANTORUM. The Senator from New Jersey is equating the removal of tissue that was damaging to the person involved—removing an intestine to preserve that health or life. This little child, in almost every situation—in fact, the industry agrees: healthy mothers, healthy children—that little child is not a threat to this mother. It is not a cancerous lesion. It is not a defective or deformed part of that person's body that is threatening their health. This is a living organism.
It happens to be a human being inside of the mother, and it is being killed not for the health of the mother or for the life of the mother but because the mother no longer wants the child.

The father of the Senator from New Jersey whose operation was performed was removing something that was damaging his health and potentially threatening his life. That is not the case here. To compare the two shows you the fundamental difference in our view.

What are we saying to people when we liken little children to cancerous parts of someone's body? We just see these little children as, what, threats? As something to be excised because they are not wanted? Is that the way we look at children? Is that how we see them—as cancerous lesions? Then we wonder why we have so much child abuse in this country, why one-third of the pregnancies end in abortion, why our culture is degraded, because we compare them to cancerous intestines on the floor of the Senate.

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