Unborn Victims of Violence Act of 2004 - Part 2

Mrs. FEINSTEIN. I thank the Chair.

Mr. President, I wish to respond to some of the concerns and complaints of the distinguished Senator from Ohio about our
substitute amendment. Let me take on his allegation that this substitute does not provide a punishment for harming a child. In fact, it does. It clearly states that the interruption of the normal course of the pregnancy relates to injury to the fetus. So there is a penalty for harm.

Secondly, he stated my amendment would not provide any penalty for ending a pregnancy; that it was a legal fiction in that sense.

I think this is clearly a misunderstanding of the plain text of our amendment. We explicitly create a separate offense for interrupting or ending a pregnancy, and we explicitly state the penalty for that offense is the same as if the crime had resulted in the injury or death of a mother. That is explicit.

So the intent is clear. I think quibbling about whether the language is perfect, the amendment does exactly what the underlying bill does. I could have cleared that up with a modification, but the Senator would not let me send a modification to the desk, which in terms of just sheer congeniality is rather surprising because that could have been made crystal clear to everyone.

So I firmly believe our amendment does exactly the same thing as the DeWine amendment, but it does not do something his amendment does, and that is create life at the point of conception. His use of the words "child in utero" as opposed to the California statute's use of the words "or fetus" make a huge difference in the law legally. Once again, I think that is clear.

The bottom line is we believe the intent and the crafting of this bill is very clear. We do not create a child in utero. We try to avoid getting to the point where life is defined.

We say that if the pregnancy is intentionally terminated and specific damages are done to the fetus, it is punished either through manslaughter in a second charge or murder in a second charge. I think the language is very clear. I think it is nitpicking to say it is not.

I can change it, but I am not allowed to change it. We have the modification, but we are not allowed to send the modification to the desk. I believe Members can vote on this amendment and know clearly they are assessing the same penalties for the same crimes as the underlying bill does. The only difference is we do not decide in our bill when life begins.

Let me read a couple of editorials and statements that have come out in recent days. There is one editorial this morning in the Los Angeles Times. I would like just quickly to read one paragraph:

The Senate is likely to vote today on a bill intended largely to score points in the endless, wearying abortion debate. The proposed Unborn Victims of Violence Act defines a child in utero as a member of the species homo sapiens, at any stage of development, who is carried in the womb. In other words, the child exists at the moment of conception. The House passed similar legislation last month. As with nearly every aspect of the abortion debate, Americans are deeply divided over when human life begins. However courts in most States generally accord more rights to a fetus considered viable outside the womb. DeWine's bill, S. 1019, offers a sweeping declaration that ignores prevailing scientific views and the national legal consensus. True, his bill specifically bars prosecution for abortion, but its effect, as DeWine intends, would be to give one side a new legal bullet in the broader abortion wars.

That is clear. I will go on. The Los Angeles Times is not the only editorial page that believes that. I indicated earlier this is true of an editorial in the Philadelphia Inquirer:

It is so easy to see how a federal unborn victims law, coupled with unborn victims' laws in 29 States, will form the basis of a new legal challenge to Roe v. Wade, a landmark case that gives women the right to terminate certain pregnancies. If a fetus
who dies during a crime is a murder victim, why, then, isn't abortion murder?

From the Buffalo News:

Passage by House Republicans of a bill that treats an attack on a pregnant woman as separate crimes against her and her unborn child is at heart an attempt to erode abortion rights. It's a disingenuous and misguided bill and the Senate should make sure it goes no further.

That is the Buffalo News.

The New York Times, April 25. This is 2001.

Packaged as a crime fighting measure unrelated to abortion, the bill is actually aimed at fulfilling a long-time goal of the right-to-life movement. The goal is to enshrine in law the concept of fetal rights equal to but separate and distinct from the rights of pregnant women.

Another editorial of the New York Times:

The bill would add to the Federal Criminal Code a separate new offense to punish individuals who injure or cause death to a child who is in utero.

The Washington Post, October 2, 1999,

What makes this bill a bad idea is the very aspect of it that makes it attractive to its supporters, that it treats the fetus as a person separate from the mother though that same mother has a constitutional right to terminate her pregnancy. This is useful rhetorically for the pro-life world, but it is analytically incoherent.

The Blethen, ME, newspaper:

First considered in 1999, the bill purports to create new Federal crimes for the intentional harm or death of a fetus or unborn child. But, no matter how much supporters deny it, the bill's real intent is to undermine women's reproductive choices. If the bill is passed and signed into law, it would weaken the prudent and pragmatic decision handed down in Roe v. Wade.

In my remarks, I have tried to show that this is a concerted effort. It need not be so. You can attach the same penalties for the same crimes, as our substitute does, without getting into the debate of where life begins. This bill chooses to get into the debate of where life begins and it defines life beginning at conception. It does so in a Federal criminal statute. It is one step in the building blocks of statutes that will constitute the ability to demolish Roe v. Wade.

I think every Member of this body who is pro-choice should vote against the underlying bill and for this amendment because in this amendment, without creating the separate person at conception, we establish the penalties for interruption or termination of a pregnancy. Those penalties are the same-same for murder, same for manslaughter, same for attempted murder, same for attempted manslaughter.

Again, I point out that in California what the State did 34 years ago was essentially amend the murder statute. By amending the definition in the Penal Code section 187, they provided a new definition of murder which said:

Murder is the unlawful killing of a human being, or a fetus with malice aforethought.

That is the bill under which the Laci Peterson case will be brought to court. It is a different idea because it clearly says that it is a fetus.

Additionally, there is information from those who wish to continue this pursuit to make a fetus a human life, to make an embryo a human life, that this is a concerted strategy aimed at weakening Roe v. Wade.

What we have tried to do is mimic the House bill with respect to the penalties but connect it to the termination of a pregnancy and thereby avoid the distinction of exactly when life begins for the purposes of statute law, in this case criminal statute law, and therefore avoid the problem.

I have indicated, from legal scholars, where they believe this will undermine prosecutions in this situation because they will encourage peremptory challenges of individuals who may have strong beliefs in choice and, therefore, not one likely to recognize that an embryo, or a day pregnancy, or a week pregnancy, or a month pregnancy is, in fact, a living being subject to criminal sanctions if their rights are violated.

It is a complicated issue. But it is a significant issue. It is an important issue.

The more I look at it and see the strategy of the anti-choice movement, the more I see that if you can establish a beachhead of rights in Federal criminal law here, and another statute there, and in a third statute somewhere else, you then begin the march to the Supreme Court in an attack on Roe. Roe sets up a trimester system giving the woman total rights in the first trimester, and then the State the right in the second and third trimester to intervene in certain cases, which has been the case in many State laws that have been passed. You now give the Supreme Court the ability to begin to say: "It is in law that the embryo has certain rights" and, therefore, forms the bulwark of the attack on Roe.

You also do something else insidious. I think you very much intervene in stem cell research. Stem cell research, and a good deal of the most auspicious of that research, deals with embryonic stem cells. If you have a law that says an embryo or a zygote is, in fact, a human life, then it is murder if you use that embryo for stem cell research, just as it becomes murder if that embryo is harmed or rejected in the course of an attack on a woman. We avoid all of that.

We simply say termination of a pregnancy, and termination of a pregnancy in the course of a criminal attack creates a second charge, and that second charge carries with it the same penalty as the original charge against the woman herself would carry.

That is the clear intent.

I regret that the Senator would not allow me to modify my amendment. I can never in 12 years remember any Senator being refused the right to modify an amendment, but perhaps we are playing by new rules these days. I know what goes around comes around in this body. I regret that.

But I believe on its face our substitute amendment is clear, it is definitive, it will stand the test of time, and it will prevent what we hope to prevent, which is the first major law which decides when life begins.

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

BREAK IN TRANSCRIPT

Mrs. FEINSTEIN. Mr. President, it is extraordinarily difficult to respond to the litany of atrocities the Senator from Kansas has just enumerated. I cannot help but wonder: What kind of animal can do this to a woman who is 7 or 8 or 9 months pregnant? I cannot help but wonder how our society produces men who would do this kind of thing to a woman. I cannot help, as a mother and a grandmother, to share with those for whom this is a life scar that will never, never heal.

And I understand it. I understand the need to want to punish, and understand the need to want to say this child-who is so close to birth, who would be capable of life outside of the womb at that moment-is a victim because, in fact, that child is a victim. I appreciate that and I understand it.

One of the reasons at the beginning of my remarks I said this bill is so controversial is because definitions have different meanings in law. The controversial part in the underlying bill is the definition of "child in utero" and "child, who is in utero" because the bill language is: "means a member of the species homo sapiens," in other words, a person, "at any stage of development"-"any stage of development," not when the fetus is what they call "quick," which means it is capable of movement; not when it is viable, which means it is capable of life outside the womb; but at "any stage of development."

This is what causes the problem in the law once you set it in the law. That is what is so distressing about this bill. Because every Member of this Senate wants to vote yes. Every Member of this Senate wants to say: Throw the book at that animal. Who could be so callous? Who could be without any morality? Who could be so cruel? Who could practice such a heinous crime? Who could punch a 9-month pregnant woman in the stomach to the extent that it causes the killing of her unborn child?

So I am there. I am there entirely. I am there completely. But, again, it is complicated because the definition we are working from gives rights at the point of conception. It does not differentiate. It does not say the 8-month-old baby or the 7-month-old baby, who is capable of life today, is what we are talking about. It says the recently fertilized egg is what we are talking about. That is the difference.

It is so hard, because you stand here and you listen and your heart goes out, and you think of these beautiful women and their beautiful children, and some animal comes at them, and in some cases kills them both, in some cases kills one, and in some cases kills the other. Sure, throw the book at him.

I will go a step further. I would give them a death penalty because they have taken two lives, and I do believe a child at that period of gestation is a life.

The problem is the bill language, which begins this at the point of conception.

Now, every single case presented on this Senate floor this morning is of a child who is viable outside of the womb. But the bill covers children that are not children; that are a day old in the womb, that are at conception. That is the problem we have with this bill. Because once you give an embryo, at the point of conception, all of the legal rights of a human being, and you have said that embryo, then, if it is lost to humankind, is murdered, you have created the legal case to go against Roe v. Wade in Federal law for the first time in history.

Now, California and the Laci Peterson case was mentioned a great deal. The prosecution of Scott Peterson will be conducted under California law, which has amended the definition of the penal code section 187-which is first degree murder-to refer to a fetus. But then other parts of law in California only imposes criminal liability starting at 7 to 8 weeks of gestation. So where the California law effectively covers exactly the situation that the Senator from Kansas is mentioning-all of those situations-it takes into consideration the period prior to 7 to 8 weeks of gestation.

And, in fact, many other State laws do as well.

The problem is this is a much more comprehensive definition that doesn't make any of the distinctions that are made by many of the States with respect to these criminal statutes. Many of them cover when the fetus has quickened, which means the fetus or the child is capable of movement, and many of them cover after viability.

This creates the situation where the embryo has the rights of a person. That is the problem for many of us.

The Senator from Ohio-and I think he knows I respect him; we have worked on so many things-says don't bring in the abortion debate. But I can't help but bring in the abortion debate because the proponents-not the Senator from Ohio, but other proponents-have said "this is part of our strategy-this is what we want to achieve."

Then you get somebody like me and Senator Boxer and other cosponsors who want to protect a woman's right to control her own reproductive system, particularly in those early months, who read this bill and see the definition and say: "There is the ball game-here we lose big time."

It is like you say to me, "gotcha," because I want to punish that guy who beat that woman to death, who killed her unborn child, because I know that child is capable of life. You know that child is capable of life. But to give that right to a fertilized egg or an embryo is a different thing. Your bill gives that right to a fertilized egg or an embryo or a zygote.

Then, when I go out and I look at what people have said about the bill, I see these statements, such as the statement of Mr. Casey:

In as many areas as we can, we want to put on the books that the embryo is a person.

This bill puts on the books that an embryo is a person, a member of the species Homo sapiens, in bill language. This bill establishes exactly what the right-to-life movement wants to establish, that an embryo is a person. That sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection. Once you have the embryo being a human being, then that human being at any stage of development deserves protection-meaning deserves rights under the law, which this establishes because it makes that embryo a victim-even protection that would trump a woman's interest in terminating a pregnancy. Think of that, that would trump a woman's interest in terminating a pregnancy.

Now, I am one who believes there should not be abortion if the baby is viable. I agree with Roe because it provides the woman choice in the first 3 months of a pregnancy where there is not viability. I lived and grew up at a time when abortion was illegal in California. I saw a good friend commit suicide because she was pregnant and in college. I saw women pass the plate so someone could go to Tijuana for an illegal abortion. You would say that is not relevant to this debate-"don't discuss it; don't bring it up in the Senate-just think about the mothers and the babies who were killed."

I want to do that, too. And I think about the mothers and the babies. I want to throw the book at those guys. And the death penalty, too. I don't have a problem with that because I believe by your actions, you can vitiate your own right to live. That has been true for me since 1971, as well. That has been my consistent position.

But once in a statute you create a fertilized egg as a human being with specific rights, the march to eliminate Roe v. Wade is on its way in statute. That is what is happening with this bill. That is what I object to. There is no reference to viability.

I have the list of what all the States do. They all do different things. Many of them recognize it. For example, seven States impose criminal liability starting when a fetus is quick, in other words, capable of movement: Florida, Georgia, Mississippi, Nevada, Oklahoma, Rhode Island, Washington. Seven States impose criminal liability starting at the point of viability: Florida, Indiana, Massachusetts, Missouri, Oklahoma, South Carolina, Tennessee. So there are many differences. Different States do different things, even when they have this law.

But what this does, what this underlying bill does, is say from the moment of conception there is a baby and that baby is a human being and that baby has rights.

That is a problem in the criminal law. As the Stanford law professor pointed out, if a case comes before the court where, let's say, a woman was assaulted and she was 3 days pregnant, and the forensics could establish that she was 3 days pregnant, and you are voir-diring people for a jury and you are telling them that there is a second victim, and it is a fertilized egg that is 3 days old and there is a 20-year charge pending or life imprisonment pending for that 3- or 5-day-old fertilized egg, then this is what the law professor meant when he said: "You are going to get the very people who are the most interested in protecting the woman being reluctant to go on that jury."

Not every case under this law is going to be post-viability, going to be like the cases that the Senator from Kansas brought forward, where I would say: "Give the guy the death penalty." I wouldn't have a problem with that. They did terrible things, the acts of an animal. But that is not what this law says. That is the difference.

What we have tried to do is say: If you end a pregnancy, if you harm a pregnancy, the same penalties would apply that apply in the House bill and Senator DeWine's bill.

I wish this could have gone to the Judiciary. I wish it wasn't rule XIV. I wish I had an opportunity in committee, in markup, to make these points.

Let me go over once again, so that everybody is crystal clear on the point of the creation of a separate offense, where a defendant violates any of the enumerated Federal crimes, our bills are identical. On the provision that the separate offense is punished the same as the violation of the enumerated Federal crimes, our bill is identical. On the provision that if the separate offense harms or ends the pregnancy, the punishment is the same as a violation would be for the underlying crime: murder, manslaughter, or assault, as appropriate. Our bills are identical.

With respect to the provision of penalty for death of a fetus is a maximum life sentence, our bills are identical. With respect to the provision of penalty for harm to the fetus is a maximum 20-year sentence, our bills are identical. And both bills do not impose the death penalty. Where our bills are different-and this is important-is the definition of when life begins.

The underlying bill defines life as beginning at conception.

(Mr. ALEXANDER assumed the Chair.)

Mrs. FEINSTEIN. Mr. President, we do not address when life begins. I just read Justice Blackmun's opinion in Roe v. Wade. It is interesting, because he goes back to the Stoics, the Catholic Church, to the Middle Ages, and discusses the difference of opinion of when life begins, the difference of opinions in science. Then he reaches his conclusion that because these differences are so vast, the law generally does not directly enjoin that point of when life begins.

That is the problem we have here. That is the dilemma the Senate faces. This bill is on a fast track. This bill has passed the House. This bill has been subject to a Rule XIV, without a hearing, from the year 2000. You have heard the most poignant, disturbing, heartrending stories on this floor. I respond to them like everybody else does. But I also know if you give a fertilized egg rights in the Federal law, it is going to have repercussions downline. If you declare in this bill you can prove a 1-day-old fertilized egg was a victim and therefore murdered, how do you turn around and say in another law you can proceed with embryonic stem cell research? You have the same 1-day-old fertilized egg. If it is murder here, is it not murder there? What are the repercussions of doing that? They are enormous.

The other side doesn't talk about this. They talk about women who are 7 or 8 or 9 months pregnant. They talk about the most heinous and brutal assaults. But the bill does much more. The bill says a 1-day-old fertilized egg is a member of the species Homo sapiens. Translation: It is a person. Translation: It is a human being.

That is the problem, and this Senate, before it passes out this bill, should understand it and should understand there is an alternative, and the alternative aims to impose the same penalties, but doesn't create that victim fertilized egg, 1 day old-by nobody's stretch a human being-possible of becoming a human being, but not a human being. I have live cells, but they are not capable of producing life.

But once the child, the fetus in the womb, is capable of living, that is a different story. I am the first one to admit that is a different story. But everything in this bill, the underlying bill, goes back to the basic definition of what is being done here, and that is that personhood, life, is being given to a 1-day-old fertilized egg.

Now I have one child biologically, I have three stepdaughters, and I have five grandchildren. I have seen close friends-I know the glory of motherhood. I know the catastrophe that takes place when you lose a child. I have had miscarriages, so I understand that. But then there is the march to turn back the clock to when I was in college and abortion was illegal. Then after college, when I went out into the world, I actually sentenced women convicted of abortion in the State of California in the State prison. I saw the terrible morbidity and the terrible things they did illegally in back-alley abortions. At that point, I said this is so terrible. Then Roe v. Wade passed in 1973, and a woman could control her own reproductive system, particularly in that first trimester. I thought to myself, we should never go back to the way it was.

My concern about the underlying bill is it is the first bridge to take us back to the way it was because of the definition that is in this bill, which gives human rights to a 1-day-old fertilized egg in utero. That is the problem for me. That is the problem for a lot of us in the Senate. Whether it will be enough, I don't know.

I tried to perfect the bill. Remember, this was a rule XIV. We didn't have a chance to mark it up. I tried to perfect it. Unfortunately, I was not granted the usual privilege of being able to send a modified amendment to the desk. But the intent is clear. I have made it crystal clear in my remarks. We will have the same penalties for the same crimes as the underlying bill. We will avoid one thing, and that is determining when life, for the purpose of law, actually begins.

BREAK IN TRANSCRIPT

Mrs. FEINSTEIN. I thank the Chair. Mr. President, this is a difficult discussion because I am very fond of both the Senators with whom I am debating. However, I certainly do not agree with the statement the Senator from Ohio just made with respect to the definition that is in the bill.

I will read the definition that is in the bill. The term "a child who is in utero" means:

A member of the species Homo sapiens at any stage of development who is carried in the womb.

The one thing neither Senator DeWine nor I know is how fast the egg gets to the womb, but I think it is pretty fast.

I just had a note passed to me by someone more erudite than I. I think we can all put this in our lexicon.

It takes about 7 days for a fertilized egg to get to the womb, but there is also the belief the underlying bill applies at the moment of conception. Let us say the egg gets to the womb in 7 days. The problem those of us on this side of the aisle have with the bill is it gives the status of a human being to that egg as soon as it is in the womb, and that creates for the first time in Federal criminal law a scenario whereby if that egg is hurt, criminal assault charges, criminal manslaughter charges, criminal murder charges can be brought because that egg, at any stage of development-they do not use trimesters, they do not use any way of deciding the development-at any stage of development, that egg in utero is a member of the species Homo sapiens, and that is where this, for criminal purposes, becomes so difficult.

That is why the letter from the professor from Stanford, who runs the criminal prosecution unit at Stanford Law School, becomes so relevant, because let's say I am in a jury pool and a woman has been beaten up and she was 7 days pregnant-at that moment it is a fertilized egg-and she lost the fertilized egg, and I was told the penalty would be an additional 10 years in prison because she lost that egg. Well, I would have to make a decision as to whether I want to be on that jury. So what the professor says is this can actually work contrary to our intent, particularly in these early cases.

He also said he suspects it is dependent on the administration as to whether early cases will be brought to a court or not, but the point is we cannot make that decision. We cannot say this is only going to be used when a mother is 7 months, 8 months, or 9 months, pregnant. In the horrific circumstances described by the Senator from Kansas, which got all of our hearts beating faster, we cannot assume that all cases will be of that type. The legislation clearly says for the purposes of definition the child is defined from the point it is in the womb at any stage of development as a child, as a person, with rights. That is the dilemma and that is why we have tried to craft a bill that does not do that, that says if someone harms or ends a pregnancy, they are subject to the same penalties.

This body is going to have to decide-and it is a very hard question. I think this is one of the most controversial bills we have had. This is probably why this bill has been around for 5 years now. I think it had a hearing in Judiciary in 2000. It has not had a hearing since. It has been rule XIVed to the floor.

Again, I wanted to make some small changes-I was not permitted to do so-by modifying my amendment. I believe, and my chief counsel believes, this bill provides the same penalties. The one difference is the definition is different. We use harm or end pregnancy, rather than that the unborn child becomes a child-well, that a child in utero and child who is in utero means a member of the species Homo sapiens, at any stage of development, who is carried in the womb. That is the problem and that is where for those of us who want to protect a woman's right to choose and who read the statements that are put out by the far right, we take them at their word that this is where they are going.

I did not make this up. This is a rather well-known statement. It clearly says, "In as many areas as we can, we went to put on the books,"-this statute on the books-"that the embryo is a person . . . "

For me, I am also very interested in being able to see that there are prudent regulations and Federal controls that will allow embryonic stem cell research. Well, if it is murder of a 7-day-old fertilized egg, then it is murder if it is used in stem cell research as well. That is where I think this is going.

There are also statements by people who want to ban embryonic stem cell research that also say this is the strategy. So I say, why get into it at all? Why not just say, if someone ends or terminates a pregnancy, the same penalties will apply. That is what we have tried to do. That is the intent of what we are doing.

I think the votes are very close. At this point, I will yield the floor, but I reserve the remainder of my time.

BREAK IN TRANSCRIPT

Mrs. FEINSTEIN. Mr. President, I agree that the debate is concluding, and I thank the Senator from Ohio. This is a serious subject and it is a difficult subject and it is a controversial subject. I appreciate the manner in which the debate has been conducted, because I think it has been conducted in the best tradition of the Senate, with the exception of your not letting me modify my amendment. But I will only interpret that as caused by the fact that the other side is worried and doesn't want my amendment to get any better, so they refuse to let me modify it.

We have two different bills here. I think we have expressed the differences. The underlying bill does recognize the unborn at
any stage of development, as long as they are in the womb, as a human being, as a victim and with rights.

My bill, rather than enter into where life begins, at what point in this gestation period life actually begins enough to say this
is a person with rights-it doesn't get into that. It takes the penalties and does a double charge and says if the predicate crime is present, and you carry out the crime to harm or end the pregnancy, it is a double charge so you are charged accordingly.

The hard part of this is that we all know there has been a march to turn back Roe v. Wade. Every Member of this Senate knows it. We have had vote after vote after vote. Since 1994, the pro-choice side has lost most of the votes. That is irrevocable fact. We know the march is on.

So those of us who are pro-choice naturally are going to look at laws to see if those laws can constitute, in addition to what they are supposed to do, any kind of bulwark from which to attack Roe.

Because of the definition of a child in utero being, at any stage of development, a member of the species Homo sapiens, we come to a conclusion. We asked the question, first, why do they use that definition? So many States have passed laws and many of them have used different definitions, why do they select that definition?

Answer, because it accomplishes the purpose of determining that once a fertilized egg is in the womb, it becomes a human being. That, then, buttresses statements such as this one on the easel.

This isn't the only statement. I can give another statement by another professor which I used in my opening remarks. It is a statement of a Republican strategist. Professor Charo is at the University of Wisconsin. She made the statement recently:

If you can get enough of these bricks in place, [meaning laws] draw enough examples from different parts of life and law where embryos are treated as babies, then how can the Supreme Court say they are not? This is, without question, a conscious strategy.

So if you believe it is without question a conscious strategy-and I, based on the history of how the erosion against Roe is being waged, piece by piece, bit by bit, law by law, action by action, I believe it is a conscious strategy. The hard part about it for me is that you feel this terrible empathy for women who have been the victims and who are 7, 8, 9 months pregnant. That has been every case that has been before us today, it has reached that stage of gestation, where you know your child can exist outside of the womb and some animal has taken the child away from you by beating you to the point where they have killed the child and in many of the same cases-the Senator from Kansas illustrated today-killed the mother as well. We want to throw the book at that perpetrator. And we do. We believe our bill is clear, and we believe our bill will stand the test of time.

So we ask the Senate to support the substitute amendment and turn down the underlying bill. I reserve the remainder of my time. I yield.

The PRESIDING OFFICER. The Senator from Ohio.

Mr. DeWINE. Mr. President, I will again point out for those who are worried about some great precedent being set here in regard to abortion that over half the States have similar laws and many of them are absolutely identical to what we are writing. So people should not be concerned about this.

The PRESIDING OFFICER. Who yields time?

Mrs. FEINSTEIN. I yield but I am reserving the remainder of my time. I may have something to say in a minute or so, and I may not.

Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

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

Mrs. FEINSTEIN. Mr. President, I think I have just a short time left. How much time do I have?

The PRESIDING OFFICER. Five minutes.

Mrs. FEINSTEIN. Mr. President, for those who might have gotten involved in this late, I would like to use the 5 minutes to say a few things.

The first is that this is one of the most difficult areas in which to legislate because it is filled with so much emotion and so much difference of opinion. It is one of those great cultural problems that exists out there in our real world, as opposed to this world, where human lives are very much affected.

On the one hand, you have the situation the Senator from Kansas, the Senator from Ohio, and the Senator from South Carolina pointed out-situations where you have women who have terrible things done to them. It is just so hard for us to realize how that can happen, that any man can be that callous to beat to death a woman who is 7, 8, or 9 months pregnant; can use a knife; can cut her fetus when you know that child is capable of life.

I understand what drives this desire. What drives the desire is to see that there is equal punishment for the taking of that life, which I believe is a life because it can sustain life. Its pulmonary functions have cleared out in the last few weeks of pregnancy and those kinds of things. But basically it is a baby, and basically it is viable. I understand all of that.

When you get down to definitions, and when you look at the statute itself, what concerns many of us and makes us understand we are dealing with something much more than just what I have said is the definition of a child in utero who is made by this bill a person, a member of the species Homo sapiens at any stage of development as long as it is in the womb-that could be 3 days, I am now told, from conception-you are not only creating criminal law for the woman who can produce a child who can live and whose life is taken away but we are creating a sanction for an egg that is fertilized that may be 3 days old. That sanction can be murder and carry with it the full weight of murdering another human being. It is a very heavy sanction. You are giving rights to that newly conceived egg of a full person.

There are many of us who say this is another way of doing this. That is just saying if you harm or end a pregnancy, these full charges will revert.

The reason we do it that way is because it exists all around us. The fact that there is a reason for how this child in utero is defined and the reason is, as I have tried to elucidate-and there are many other cases-"In as many areas as we can, we want to put on the books that the embryo is a person."

Why do they want to do that? It is simple. They want to do it because if we legislate, and the Federal crime is that if a 3-day-old egg is a person and has rights, then abortion under this same context is murder or manslaughter or assault. Full rights of a person are given.

I think that is a problem when you codify it in statute. This body is then saying: Yes, we agree. Therefore, a case can be brought against abortion of any kind at any time and also against embryonic stem-cell research that some of us believe is the new horizon of medicine, which is capable of finding cures for Parkinson's and Alzheimer's, and juvenile diabetes.

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

Mrs. FEINSTEIN. Just to sum up, I hope Members of the Senate will vote for the substitute amendment and against the underlying bill.

I thank the Chair. I thank the distinguished Senator from Ohio. It has been a very interesting morning.