National Defense Authorization Act for Fiscal Year 2004

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2004

Mr. BROWNBACK. Mr. President, I wish to, first, thank the Senator from Washington for bringing up this issue. I think there was a relevancy issue associated with it. There was a big debate about this last night. It was eventually deemed relevant.

I then proposed a second-degree amendment that would require parental notification of the type which is involved with 43 of our States. Forty-three States have parental notification—that a minor on a military base, a dependent, could not get an abortion until either parent was notified—just notified, not consent, just notified—within 48 hours before the abortion or that there be a judicial oversight. So that if either parent were not available or accessible, or the child didn't want to notify the parent, they could get the court to rule that the abortion go ahead and the parent not be notified or, if it were a catastrophic situation and the life of the minor was in jeopardy, the doctor could go forward and provide the abortion without a notification period.

That was the second degree that was being proposed. We had a spirited discussion here privately about this.

I thank the managers of the bill. I thank particularly the two whips on either side for pushing this forward to get us to resolve the issue; that what we are going to do today is take up the Murray amendment and take up the parental notification issue at a later date—I hope a week or two after we get back from the break. I think it is an important issue as well.

The parents in 43 States are notified if their minor child is seeking to have an abortion. We would extend this right to parents of military personnel as well. That is what is considered in the second degree.

I appreciate the Senator from Washington working that out with us so we are able to take up both of these difficult issues.
I also thank the Senator from Washington for her passion and caring for women in the armed services. She stands up strongly for women's rights, particularly for women's rights in the military. I appreciate that. I have no qualms about her passion or her heart at all. I recognize and applaud both.

But we have a narrow specific issue here that goes to the very core of what we are about as a society today. It goes to the very core issue of culture of life and culture of death that is being broadly discussed in the culture today. And that is being played out here on the issue of military bases. It goes to the issue of the legal status of the child in utero.

I certainly recognize the passion of the Senator from Washington for women's rights. I applaud that. But there is also another person involved here and there are other issues involved here.

On February 10, 1996, the National Defense Authorization Act for fiscal year 1996 was signed into law by then-President Clinton with a provision to prevent Department of Defense medical treatment facilities from being used to perform abortions except for when the life of the mother is in danger or in the case of rape or incest.

That is the current status for the use of military base health facilities to provide for abortion. They can be provided at military bases in the cases of rape, incest, or when the life of the mother or military personnel is endangered. This would be obviously women in the military or a female dependent in the military.

This provision—10 United States Code 1093(b)—reversed a Clinton administration policy instituted on January 22, 1996, permitting abortions to be performed at military facilities, period.

In other words, all abortions on demand could be provided according to the Clinton administration policy that was put into place immediately after President Clinton became President.

Previously—from 1988 to 1993—the performance of an abortion was not permitted at military hospitals except when the life of the mother was endangered.

I think you can start to see the progression here that was taking place.

Under President Reagan, there was a provision that you could provide an abortion on a military base if the life of the mother was in danger. That continued through President Reagan and President Bush 1. Then President Clinton came into office and immediately opened up all military facilities for all abortions and said they could be performed.

In February 1996, that was limited. Abortions could be provided in cases of rape and incest and when the life of the mother was endangered, but it was an expansion from where it was in the Reagan administration.

That is the law of the land as it is today.

The Murray amendment, which would repeal this pro-life provision, attempts to turn these taxpayer-funded DOD medical treatment facilities into facilities that provide abortion on demand for military personnel and their dependents. The Senate should reject this amendment. This is what the issue is about.

When a similar amendment passed last year, Secretary of Defense Donald Rumsfeld warned that the President's senior advisers would recommend the President veto the Defense authorization bill on this issue. So you are talking about an abortion issue of providing abortions in medical military facilities, a narrow, overall issue bringing down the entire Defense authorization bill—on this issue where abortions are provided for rape, incest, life of the mothers, but not on demand for all abortions. That could bring down the whole bill.

Using the coercive power of Government to force American taxpayers to fund health care facilities where abortions are performed would be a terrible precedent that would put many Americans in a difficult position of saying: They are using my taxpayer money to fund something that I don't agree with—abortion on demand. Yes, I can understand it in cases of life of the mother, certainly, and of rape and incest, but not on demand.

When the 1993 policy permitting abortions in military facilities was first promulgated, military physicians, as well as many nurses and supporting personnel, refused—refused—to perform or assist in elective abortions. In response, the administration sought to hire civilians to do abortions. That should tell us something about what is taking place here. The military personnel themselves—the physicians—do not want to do these elective abortions.

Therefore, if the Murray amendment were adopted, not only would taxpayer-funded facilities be used to support abortion on demand, but resources would be used to search for, hire, and transport new personnel simply so that the abortions could be performed outside of this narrow scope of rape, incest, life of the mother that would be on all other abortions.

In fact, according to CRS, a 1994 memorandum from the Assistant Secretary of Defense for Health Affairs—this would be under the Clinton administration—"direct[ed] the Military Health Services System to provide other means of access if providing pre-paid abortion services at a facility was not feasible"—how outside individuals performed abortions on military bases.

One argument used by supporters of abortions in military hospitals is that women in countries where abortion is not permitted will have nowhere else to turn to obtain an abortion. However, DOD policy requires military doctors to obey the abortion laws of the countries where they are providing services, so they still could not perform abortions at those
locations.

Military treatment centers, which are dedicated to healing and nurturing life, should not be forced to facilitate the taking of the most innocent human life: the child in utero—and this as an elective, on demand, not in cases of rape, incest, life of the mother, which are currently provided under the law concerning the Department of Defense.

I urge my colleagues to vote down this Murray amendment and free America's military and the Department of Defense authorization bill from abortion politics. American taxpayers should not be forced to fund facilities that destroy innocent human life. I urge my colleagues to reject that amendment.

I would also urge my colleagues, when we bring up the parental notification bill, that they would support such a provision. The parental notification bill would—and that is one parent, not both—one parent is simply notified 48 hours in advance of an abortion being provided to their minor child if that is going to take place on a military base. And if either parent cannot be reached, or if the child believes this would endanger, somehow, him or herself, there is a judicial override or the doctor could go ahead and even perform and note in the record as to why, for health reasons, he did not notify. This isn't consent, it is notifying the parent.

It is not the issue up, but thanks to the Senator from Washington, to help get this agreed to, to work this out, we will be considering that parental notification provision.

Mr. President, I reserve the remainder of our time.

We do have other speakers to present. If it would be appropriate for the Senator from Washington, we could bounce back and forth. I do have a speaker who is here.

Mr. President, how much time remains on our side on the amendment?

The PRESIDING OFFICER. Nineteen minutes, 20 seconds.

Mr. BROWNBACK. Mr. President, I yield up to 10 minutes to my colleague from Alabama.

The PRESIDING OFFICER. The Senator from Alabama.

Mr. SESSIONS. Mr. President, I rise in opposition to the Murray amendment.

We worked hard on this bill. I serve on the Armed Services Committee. We are still in a state of conflict in Iraq. We have hostilities and dangers around the world. We made a commitment, as a Senate, to move forward, to move this Defense bill early this year, not wait until the last minute, to do our work properly.

This bill is endangered now by a highly controversial amendment, which I oppose, and which I think a majority in this body will oppose. It could affect adversely our ability to conduct a harmonious conference with the House of Representatives. It could even result in a veto by the President of the United States.

I know there is a strong abortion agenda still out here, even though the polling numbers continue to show erosion for that position.

This side of the aisle—Senator Brownback and others who care about the issue—has not injected abortion into the Defense debate, but it has been raised by the pro-abortion agenda groups. I think that is not healthy. I wish it had not happened. I know there has been a debate over whether or not it is even relevant, but the Parliamentarian had ruled that it is, so we will have this vote today.

I will just note, as an example of the reality of the problem, we had a bankruptcy bill that I worked on in the Judiciary Committee—and others did—for several years. We voted on it on the floor of this body and got 87 votes for it. Yet it died in committee because a pro-abortion amendment had been placed on it. The conference committee could not break the deal, and eventually the entire bill failed.

Mr. CARPER. Will the Senator yield?

Mr. SESSIONS. Yes.

Mr. BROWNBACK. On your time, Mr. President.

Mr. CARPER. I just want 1 minute, if I could.

The PRESIDING OFFICER. The Senator from Alabama controls the time.

Mr. SESSIONS. I yield for 1 minute, if he would use Senator Murray's time.

Mrs. MURRAY. I am happy to yield 1 minute to the Senator.

The PRESIDING OFFICER. The Senator is recognized for 1 minute.

Mr. CARPER. Mr. President, on the issue the Senator raises in relation to the bankruptcy legislation, I make a point of
clarification. This is an issue I care about as much as the Senator from Alabama. The language that died, after having been reported out to the conference committee, was language that said when a person commits a violent act for which they are convicted and fined, they cannot discharge that fine in a court of bankruptcy.

It does not say anything about abortion. It does not say anything about abortion clinics. It says if you have been convicted of a violent act, you cannot go to a court of bankruptcy and discharge that claim for which you have been convicted and fined. That is what it said.

Mr. SESSIONS. Will the Senator yield for a question? Does the Senator yield?

Mr. CARPER. I just wanted to make that clear.

The PRESIDING OFFICER. The Senator from Alabama.

Mr. SESSIONS. I do not think the Senator, who is a great colleague, would dispute the fact that language resulted in the
failure of that bill.

People care about this issue. It is a big deal to people. It is a personal and emotional issue that I don't think needs to be pressed at this point.

Our military physicians and nurses are not happy with it. It would require us to utilize military hospitals as facilities to carry out abortions. It would make our hospitals a part of the abortion process. It would utilize Federal property and resources to that degree. It covers not just foreign hospitals but every hospital in America.

Yes, it is legal—clearly legal—that a woman can have an abortion and can use her own money to that effect, but we have sort of reached an understanding and compromise in the Congress that it is legal but because of respect for people with differing views, we just will not use taxpayers' money to fund it. There is just sort of a truce, in a way, that has been reached. I think it is probably something we just have to live with at the present time.

I don't see any need to pressure or embarrass doctors and nurses who do not feel comfortable doing this. We know this. There was a survey done of the Army, Navy, and Air Force obstetricians; 44 of them were surveyed. All but one said they adamantly opposed doing abortions. One later said that physician was opposed to abortions. Some of these were women physicians. Nurses are not comfortable with it. I don't believe we ought to be requiring military hospitals to go out and hire other physicians to come in on Government taxpayer funded property to conduct these procedures. It is just not necessary.

President Bush has made clear he opposes using taxpayers' money to fund abortions. Passage of this amendment would threaten that.

I believe women are playing an increasingly valuable role in our military. I spent over 10 years as a reservist and served with many fine women officers. The unit I was a part of in Mobile, AL, is now in Kuwait commanded by a woman officer.
I can't tell you how proud I am of them. I am not hearing from the women I know in the military that this is something they are demanding, frankly. I don't think the American people are.

I will just point out some numbers that deal with this subject. If anybody cares, a January 2003 poll of ABC News/Washington Post—not conservative groups—showed that only 23 percent were for abortion to be legal in all cases.
That is less than a fourth. The same poll found, when asked this question, should we make abortion harder to get, 42 percent said yes; easier to get an abortion, 15 percent said yes. So 42 percent thought it ought to be harder to get an abortion and 15 percent thought it should be easier.

In January of 2003, a CBS News/New York Times poll asked this question: should abortion be generally available, 39 percent; stricter limits, 38 percent; not permitted, 22 percent. Sixty percent favored either stricter limits or not permitted. A CNN Gallup poll in 2003 asked, should parental consent be required for an abortion? Yes, 73 percent.

Regardless of how we personally feel about this issue, it ought not to be on this bill. It is not what we need to be debating now. We need to be focused on our men and women in harm's way, providing them with the necessary funding and resources and equipment needed to do their job. We don't need to jeopardize this bill in conference or subject it to a possible Presidential veto as a result of this amendment.

I thank Senator Brownback for his leadership and yield back such time as I may have.

Mr. BROWNBACK. Mr. President, I reserve the remainder of my time.

Mrs. MURRAY. How much time remains on our side?

The PRESIDING OFFICER. Senator Murray has 18 minutes 15 seconds.

Mrs. MURRAY. I yield 10 minutes to the Senator from Illinois.

Mr. DURBIN. I thank the Senator from Washington. I listened to a description of her amendment by the Senator from
Alabama. It did not sound like the amendment she described. I want to ask a few questions so it is clear.

Does this amendment in any respect require the Federal Government to pay for an abortion?

Mrs. MURRAY. This amendment does not require the Federal Government to pay for an abortion. In fact, it will allow the woman herself to pay out of her own personal private funds for an abortion in a military hospital overseas.

Mr. DURBIN. So under this amendment, women in the U.S. military who seek, through their constitutional right, an abortion service would have to pay for it out of their own pocket?

Mrs. MURRAY. That is correct.

Mr. DURBIN. Secondly, there has been a suggestion made that if your amendment passes, it will require doctors, for example, in medical facilities connected with the armed services, to perform an abortion if they object to performing that procedure under their own conscience; is that correct?

Mrs. MURRAY. That is not correct. The amendment, as I have offered, has a conscience clause for all doctors overseas.

Mr. DURBIN. So if a doctor at a military hospital says, even though this young woman who is in the armed services comes to me for an abortion procedure and I object to it on religious and moral grounds—that doctor is not going to be compelled to perform an abortion under this amendment?

Mrs. MURRAY. That is absolutely correct. This amendment does not compel any medical provider to perform an abortion.

Mr. DURBIN. There has also been a suggestion that in U.S. military hospitals around the world, there is no provision for abortion services; is that correct?

Mrs. MURRAY. Would the Senator restate the question?

Mr. DURBIN. It is my understanding that under certain circumstances, such as rape or incest, at military hospitals around the world today, abortions are being performed; is that correct?

Mrs. MURRAY. The Senator is correct. In all military facilities, women who are victims of rape or incest do have the opportunity to receive abortions.

Mr. DURBIN. I thank the Senator from Washington. That clarifies some of the things that have been said. The Federal Government will not be paying for the abortion. The woman in the military who seeks it must pay out of her own pocket.
The doctors involved in this procedure will not be compelled to do so if it violates their own morality or their own conscience by the Murray amendment. And military hospitals serving U.S. personnel around the world today already provide abortions in emergency circumstances involving rape or incest.

We have to be honest about what the amendment does and does not do. This is what it does. It says to women who have volunteered—and we are now dealing with an All-Volunteer Force—to join the U.S. military and to lay their lives on the line, to risk their lives and their future for their country, that they will not be compromised. They will not be surrendering their constitutional right to make a choice to control their own reproductive freedom.

There are some on the other side who say, no, they may have that constitutional right in the United States, but once they have taken the oath to serve the U.S. Army or Navy, in that situation they have given up their constitutional right. Is that what we want to say?

After going through the Iraqi war where women in uniform were captured as prisoners of war, put their lives on the line, are we saying to those women and thousands like them that if you join the U.S. military you give up your constitutional right? Is that what we are saying to those who we are trying to recruit to join the military? I hope not.

I hope we are saying that we recognize the reality of service, particularly overseas. A woman finds herself in a difficult circumstance, where she wants to seek, under her constitutional right guaranteed by the Supreme Court, the right to terminate a pregnancy in the first, second, and third month. Now in the military she has to go ask permission of the commanding officer and may be forced into a situation where she has to find a way back to the United States in order to
protect her own health and make her own decision.

This comes down to a fundamental question: Are women serving in the U.S. military to be treated as second-class citizens? Those who oppose the Murray amendment say, yes, once you have said, as a woman, that you will serve in the military, you have given up your constitutional right to control your own body and your own reproductive freedom.

That is a terrible thing to say. Frankly, it says that we denigrate the contribution and the heroism of the women who joined the U.S. military.

What Senator Murray is asking for is perfectly reasonable. A woman in the military at her own expense can go to a military hospital which already provides abortion services as a normal course for victims of rape and incest, can go to a doctor who has willingly and voluntarily agreed to be part of this counseling and part of this procedure, and pay out of her own pocket for the procedure to take place. That is not a special privilege. In fact, it says to that woman, you are just as much an American citizen as your sister back home.

If we go the opposite course, frankly, it sends a very sobering message to recruiters around America that you have to be honest with the women you are seeking to recruit and tell them that once they take that oath to the United States to serve in the military, they have given up a constitutional right protected by the laws of the land.

I commend the Senator from Washington for her leadership, and I support the amendment.

The PRESIDING OFFICER. Who yields time? The Senator from Kansas.

Mr. BROWNBACK. How much time do I have remaining?

The PRESIDING OFFICER. Eleven minutes fifty-six seconds.

Mr. BROWNBACK. If I could engage and ask the Senator from Washington, to make sure I am on the same amendment—I
have her amendment here. What I read here is that the amendment does two things: It says:

Section 1093 of title 10, United States Code, is amended—

(1) by striking subsection (b); and

(2) in subsection (a), by striking "RESTRICTION ON USE OF FUNDS."

So it strikes those on two words. That is the only thing I have of an amendment. Am I correct? Is that the actual text of the amendment?

Mrs. MURRAY. Yes, the Senator is correct.

Mr. BROWNBACK. By striking subsection (b), that section reads: Restriction on use of facilities: No medical treatment
facility or other facility of the Department of Defense may be used to perform an abortion except for—the life of the mother will be in danger if the fetus was carried to term or in the case in which the pregnancy is the result of an act of rape or incest.

That provision will be stricken.

That is what I have got of what the amendment is. Is that correct?

Mrs. MURRAY. If the Senator will hold a second, I will check and then respond.

Mr. BROWNBACK. I will make my full point. We are talking about overseas facilities. In actuality, the striking says "no medical treatment facility or other facility of the Department of Defense. .    .    ." So you are talking about overseas facilities and domestic facilities. These would be facilities overseas and in the U.S. that could both be used to provide abortion on demand. This is removing this restriction that it would just be in the case of the life of the mother, rape, and incest, is that correct?

Mrs. MURRAY. The Senator is correct only in that it would strike the language in the bill which would put us back to the previous language that is in the statute today, which I am happy to provide him, which I accurately described in my statement.

Mr. BROWNBACK. Maybe the Senator can answer this. This would open up both domestic and overseas facilities because the language as stricken says that no medical treatment facility or other facility of the Department of Defense may be used—it has no limitation saying this is just overseas facilities. It is any DOD facility.

Mrs. MURRAY. The Senator is correct. I remind the Senator that domestically in the service, a woman has the right to receive health care services at a hospital. So where this affects a woman is when they are serving overseas and they don't have the same access.

Mr. BROWNBACK. Still, she would have access to DOD facilities in the U.S.

Mrs. MURRAY. Yes, and she would have to pay for it out of her own money.

Mr. BROWNBACK. I also note the Senator from Illinois talked about conscience clause protection, where somebody would not have to provide this. That is not in your amendment. You are talking about the base portion of any Department of Defense medical doctor.

Mrs. MURRAY. Under current law, all medical providers in the Department of Defense have a conscience clause.

Mr. BROWNBACK. Thank you. Your amendment does not have conscience clause protection. That is already part of the base if you are a military physician, to be able to provide that.

I want to hone in on what the amendment is about. It is about opening up DOD medical facilities, domestically and internationally—the Senator argues there won't be that much demand domestically, but it opens it up both ways to provide abortion on demand in the United States to U.S. military personnel and their dependents. So you are talking about a broad array of taxpayer-funded facilities you are opening up to provide abortions in Kentucky, Washington, Kansas, or wherever.
I want to agree with the Senator from Washington that we are talking about the use of the facilities here—taxpayer-funded facilities—that provide abortions and not necessarily the doctor. The doctor may be recruited from outside and paid for privately, but you are using taxpayer-funded facilities to provide abortions. So you can see a situation in this country where you would have a military facility in Kentucky or in the State of Washington being protested by people who are pro-life because their taxpayer-funded facility is being used to provide abortions on demand—not just for the life of the mother, rape, and incest.

Again, I recognize the strong support Senator Murray puts forward for the rights of women, and I applaud that. But we are talking about a very sensitive issue for a number of people when you talk about the use of taxpayer dollars to do something they really don't agree with. I don't think it is wise to do that, one. Two, I don't think we should be tying up the DOD authorization bill on probably the central most difficult issue of our day for people to really wrestle with. That is what this amendment would do.

For those reasons, I urge my colleagues to look at the actual text of the amendment and oppose the Murray amendment.
I yield the floor and retain the balance of my time.

The PRESIDING OFFICER. The Senator has 12 minutes 25 seconds.

Mrs. MURRAY. Mr. President, I will make a couple of points. Under current law, in the case of rape or incest, at a military facility an abortion can be performed. No one is protesting that today. I again advise my colleague that a woman who is in this country has this right, anyway. Where we are concerned, rightfully, is for women who are serving overseas. They don't have a constitutional right today to have an abortion.

Let me tell you what happens to a woman if she finds herself in difficult circumstances and is serving overseas. She has to go to her commanding officer. Believe me, that is very difficult for a woman to do, go to a commanding officer and describe the circumstances she finds herself in, and ask for permission to fly home to have an abortion performed, where it is legal.

Mr. President, that is humiliating, but it is also difficult. She then has to wait for a C-17 to be available. Think about this. We have just seen the conflicts in Afghanistan and Iraq, and we have to make a C-17 available for a woman to fly home. That is ridiculous. They have the medical facilities there already, and the facilities are available. So we are putting the services at risk when we have to fly them home. This is humiliating and she has to ask her commanding officer. A woman serving in the country doesn't have to do that. It is difficult and cumbersome.

This also really jeopardizes a woman's right to privacy because in order to go to her commanding officer, she has to disclose her medical condition. We all would think the officer would respect her rights, but that is not always the case. She has to put that question in her head when she goes to ask them. I don't think it is fair to the women overseas when they disclose their medical condition with no guarantees that they will be kept confidential. Think of the potential of using that against a woman in the service. I think that is something none of us want to place a young woman in the position of having to do.

We need to remember a woman is not given any medical relief and she is penalized under this policy. She has to wait for a C-17 to be available, fly home, take the time to have the procedure done, and then return to military service. We are taking her out of service when we need her, and we are causing her a tremendous amount of distress, too.

Remember, we are talking about a service that is protected constitutionally for any woman who is here in this country. But these are women who have volunteered to serve us overseas in the military.

Finally, let us not forget what we have done to women today who are serving us in the military and fighting for our freedom. We have put them—if they don't want to ask their commanding officer, wait for a C-17, and all of the other conditions we put on them—today, they can go to a hospital in a foreign country. Well, think of the difficulties of that, where they don't have the same culture, don't speak the same language, if a woman has a health care procedure done and the doctor cannot tell her what she needs to do in the following 24 hours or weeks to make sure she is taking care of herself correctly, and she cannot understand him because she doesn't understand the language.

Why would we do that to a woman serving us overseas? I think we ought to go back and put in place a provision in the law that has worked before that simply gives women who serve us the same constitutional right women in this country have today. That is what this amendment is about. That is what this vote is about. I hope our colleagues will vote with us in a few minutes when the vote is called.

I retain the balance of my time.

The PRESIDING OFFICER (Mr. TALENT). The Senator from Kansas is recognized.

Mr. BROWNBACK. How much time remains on both sides?

The PRESIDING OFFICER. There are 6 minutes on the time of the Senator from Kansas and 8 minutes on the time of the Senator from Washington.

Mr. BROWNBACK. Mr. President, I wish to make a couple comments in regard to what Senator Murray has just put forward. She said we are talking about international facilities, but the amendment covers international and domestic facilities, which we have established here, so it would be domestic facilities. It is going to be abortion of all types. It could be abortion on demand at domestic facilities.

If the Murray amendment is adopted, it would be for not just military personnel but also for minors, dependents who would be able to use these same facilities for abortion on demand. The reason I wanted to put forward a parental notification amendment is we will have a situation, if the Murray amendment is adopted and the amendment I would put forward is not accepted, we will have a situation at military bases throughout the United States of minors of military personnel seeking abortions and not notifying their parents and not having to notify their parents, even though State laws require a different situation.

I want to check that point to make sure we would be able to do things differently on a military base than in State law.
The point being we are talking about a massive expansion of the use of medical facilities on a very troubling area of the law.
There is the issue the Senator from Washington raised about how this would actually work. I submit this is working fairly well right now. We are not receiving a huge level of complaints from women in the military saying: I want to be able to receive an abortion in any medical facility the military has anywhere in the world in cases outside of rape, incest, and life of the mother, which are currently provided. This is quite an expansive position on a very tense subject, and it is one that threatens to bring down the whole Department of Defense bill. I urge my colleagues, this is not the time and place for us to do this. It would be inappropriate to do so.

Mr. President, I reserve the remainder of my time.