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Partial-Birth Abortion Ruling

Location: Washington, DC


Mr. BROWNBACK. Mr. President, I rise to address the alarming decision handed down earlier this week by a District Court in California on partial birth abortion.

The judge's decision was wrong on many fronts. It is wrong on the medical facts, and it is wrong in its blatant disregard of Congressional findings. Most importantly, the decision is also wrong on the law. This ruling is unconstitutional, as well as violative of fundamental human rights, because it drives a wedge between biological humanity which prenatal human offspring undeniably have, and legal personhood i.e., the right to the equal protection of the law. The repellant notion underlying Roe v. Wade-that there are "subhuman" members of the human species-conflicts directly with the very purposes of the thirteenth, fourteenth, and fifteenth amendments, which undid the great injustice of treating black Americans as slaves and property instead of as human beings entitled at law to full respect. I realize that the Supreme Court has not yet repudiated this holding of Roe, which it imposed upon the Nation in 1973, but this case decided by one district court in California is clearly going in a direction that contradicts everything we value about the Constitution and the principles under which this Nation and its people operate.

First, Judge Phyllis Hamilton dismisses the overwhelming medical evidence that it is never medically necessary-to save the life of the mother or any other reason-to perform the gruesome partial-birth abortion procedure-in which a young human is partially born, so that only the head remains in her mother, and then a sharp object pierces the back of the child's head and sucks the child's brain out, killing the child.

Think about that, a baby-a young human baby-is partially born, so that only her head remains in her mother's birth canal. Then an abortion-provider punctures the back of the child's head with a surgical instrument. Then the abortion provider suctions the young human's brains out, leaving the child dead, dead, dead.

There is no recourse for the young human. This is a cold-blooded murder. And if this District Court has its way, the young child will never receive justice for her gruesome murder.

Before I address Judge Hamilton's disregard of Congressional findings, I want to talk in particular about the issue of fetal pain, which Judge Hamilton alleges is "irrelevant."

I would submit that were we to see a puppy have its head punctured and brains sucked out, we would not consider it irrelevant. We would be moved to protect the puppy.

Yet, we are not talking about a dog; we are talking about a young human. And the judge in California says that pain is irrelevant when we are talking about a young human.

We are elected representatives. We have an obligation to defend the Constitution. This includes defending the right to life, liberty and the pursuit of happiness. First among these 3 is life. We have an obligation to defend the right to life for the most defenseless and helpless among us. Our laws should protect the sanctity and dignity of every innocent human life from the moment of conception.

Judge Hamilton notes that there is some debate within the medical community on the issue of fetal pain. Then she
acknowledges that: "the position that Congress has taken [on pain experienced by unborn children] is neither incorrect nor entirely unsupported."

But then she disregards the Congressional finding that partial-birth abortion is never medically necessary and writes something incredibly callous: "[Pain experienced by unborn children] is, however, irrelevant to the question of whether the Act requires a health exception, as discussed in this court's conclusions of law."

Irrelevant? First, partial-birth abortion is never medically necessary, and since the gruesome partial-birth abortion procedure is never medically necessary, an essential reason for abolishing this dreadful form of death is the terrible pain inflicted on the unborn child.

Pain experienced by an unborn child is very relevant.

Just before the recess, I introduced the Unborn Child Pain Awareness Act, S. 2466, with nearly a quarter of the Members of this chamber as original cosponsors.

This legislation would require those who perform abortions on unborn children 20 weeks after fertilization to inform the woman seeking an abortion of the medical evidence that the unborn child feels pain.

The bill would also ensure that the woman, if she chooses to continue with the abortion procedure after being given the medical information, has the option of choosing anesthesia for the child, so that the unborn child's pain is less severe.

Women should not be kept in the dark; women have the right to know what their unborn child experiences during an abortion. Unborn children should be spared needless, deliberately-inflicted pain.

Many among us are unaware of the scientific, medical fact that unborn children can feel, but it is true. Not only can they feel, but their ability to experience pain is heightened. The highest density of pain receptors per square inch of skin in human development occurs in utero from 20 to 30 weeks gestation.

An expert report on fetal development, prepared for the partial birth abortion ban trials, notes that while unborn children are obviously incapable of verbal expressions, we know that they can experience pain based upon anatomical, functional, physiological and behavioral indicators that are correlated with pain in children and adults.

Unborn children can experience pain. This is why unborn children are often administered anesthesia during in utero surgeries.

Think about the pain that unborn children can experience, and then think about the more gruesome abortion procedures. Of course, we have heard about partial birth abortion, but also consider the D&E abortion. During this procedure, commonly performed after 20 weeks-when there is medical evidence that the child can experience severe pain-the child is torn apart limb-from-limb. Think about how that must feel to a young human.

Pain is absolutely relevant to the subject at hand.

Oddly, one of Judge Hamilton's reasons for ruling against the partial-birth abortion ban is that: "[Fetal pain] appears to be irrelevant to the question of whether [partial-birth abortions] should be banned, because it is undisputed that if a fetus feels pain, the amount is no less and in fact might be greater in D&E by disarticulation than with the [partial-birth abortion] method."

Apparently, Judge Hamilton believes that fetal pain is irrelevant to the issue at hand because other abortions might be more painful. Clearly, Judge Hamilton's logic is flawed.

Judge Hamilton's decision crosses the line. What we have seen in this week's District Court decision is judicial bias and judicial activism at its extreme. Judge Hamilton egregiously reveals her own bias in favor of abortion when she writes: "The court found all of the plaintiffs' experts not only qualified to testify as experts, but credible witnesses based largely on their vast experience in abortion practice. However, of the four government witnesses who were qualified as experts in ob/gyn, all revealed a strong objection either to abortion in general or, at a minimum, to the D&E method of abortion. The court finds that their objections to entirely legal and acceptable abortion procedures color, to some extent, their opinions on the contested intact D&E procedure."

By her logic, those with moral objections to abortion are biased-or "colored"-in their views against abortion, but those who perform abortions for money are not at all biased-or "colored"-in their views favoring abortions.

Sadly, the action of this California District Court is simply the latest instance of arrogant judges riding roughshod over the democratic process and constitutional law alike in a quest to impose a radical social agenda on America-in this case abortion on demand for any reason or no reason.

We are a democracy, not a people ruled by judicial dictate.

This district court decision is yet another example of why we need to reign in an increasingly reckless judiciary one, by means of stripping courts of authority they have usurped from the people and their legislative representatives, and two, through impeachment, when necessary at both the Federal and State level.

Policy-making decisions-particularly those that have such sweeping social implications-must be made by the representatives of the people in a way that is respectful of long-established traditions and principles of our social order. When activist judges use their positions to achieve policy goals, they must be resolutely opposed.

As the partial-birth abortion ban litigation continues in Nebraska and New York, I remain hopeful that we will see much more restraint and reasonable rulings coming forth from the judiciary.

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