Domestic Violence Screening, Treatment, and Prevention Act of 2003

Madam President, I would like to call up amendment 2858.

I ask unanimous consent the reading of the amendment be dispensed with.

Madam President, I agree with virtually everything the Senator from Ohio has said. Although there are many State laws which do take into consideration a fetus, it is true that the Federal laws, which would impact only those on Federal property, are silent. I am in complete concurrence with everything the Senator has said. I have had the privilege of working with him, so it is a delight for me to be able to discuss and debate this issue with him.

The substitute amendment I have called up is on behalf of Senators Bingaman, Boxer, Corzine, Kennedy and Lautenberg. I would like to make clearer a couple of places in that amendment.

I ask unanimous consent to send a modification to the desk.

I hear the objection. I am rather surprised by the objection. It is generally common courtesy to allow a Senator to amend his or her amendment. However, I believe our amendment is clear on its face.

I would like to point out that since 2000, in the Senate, there has been no hearing on this amendment and no opportunity for the Judiciary Committee to make corrections. This amendment is on the floor as a rule

Mr. President, the substitute amendment, which I have offered, has been crafted to avoid these problems.

Our amendment, the Motherhood Protection Act, will accomplish the same goal as the Unborn Victims of Violence Act, but will do so in a way that does not involve us in the debate about abortion or when life begins. In my view, there is no reason to vote against this substitute unless the intention is to establish legally that human life, for the purposes of Federal criminal law, begins at the moment of conception because, ladies and gentlemen, that is exactly what this bill does.

To emphasize the point, let me again turn to the comments of Samuel Casey, executive director and CEO of the Christian Legal Society, who clearly states the intention behind the bill in this quote:

In as many areas as we can, we want to put on the books

that the embryo is a person. . . .That sets the stage for a

jurist to acknowledge that human beings at any stage of

development deserve protection--even protection that would

trump a woman's interest in terminating a pregnancy.

Let there be no doubt about the intent. Anyone who is pro-choice cannot vote for this bill without the expectation that they are creating the first legal bridge to destroy Roe v. Wade.

Now, there is a time and a place to discuss the morality and philosophy of when life begins. This is not that time. Now is the time to change our Federal law to punish criminals who would inflict grievous injuries or death upon pregnant women on Federal lands. So I urge my colleagues to support the substitute amendment.

Exhibit 1

Stanford Law School,

Stanford, CA, July 10, 2003.

Senator Dianne Feinstein,

U.S. Senate, Senate Hart Office Building, Washington, DC.

Dear Senator Feinstein: I wish to express my concern about

the current formulation of S. 1019, the Unborn Victims of

Violence Act of 2003. Although I fully endorse the Bill's

ultimate aim of protecting pregnant women from the physical

and psychological trauma of an endangered or lost pregnancy,

I believe that the Bill's current formulation will frustrate

rather than forward this goal.

I write both as a former prosecutor and as a law professor

specializing in criminal law and criminal prosecution. At the

outset of my career, I served as an assistant district

attorney in Middlesex County, Mass., and as an assistant

attorney general in the Massachusetts Attorney General's

office. I then went to Boston College Law School, where I

administered and taught in the criminal prosecution clinic. I

have been at Stanford since 1995 and a tenured professor of

law since 1999; during the next academic year, I will serve

as Academic Associate Dean. In 1996 I founded Stanford's

criminal prosecution clinic and have administered and taught

in the clinic ever since. I have also created a course in

prosecutorial ethics, which I taught at Boston College Law

School and, as a visitor, at Harvard Law School.

My background and interest in criminal prosecution prompt

me to raise three objections to this Bill. All of them focus

on the Bill's use of the expressions ``child in utero'' and

``child, who is in utero,'' and on its definition of these

terms as ``a member of the species homo sapiens, at any stage

of development, who is carried in the womb.''

First: The Bill's apparent purpose of influencing the

course of abortion politics will discourage prosecutions

under any future Act.

I do not know what motives gave rise to the Bill's use of

the expressions ``child in utero'' and ``child, who is in

utero,'' but I do know that any vaguely savvy reader will

conclude that these terms and the Bill's definition of

them were intended by the Bill's authors to influence the

course of abortion politics. It is a fair prediction that

when a pro-life President is in office, prosecutions under

this Bill will be more frequent than when a pro-choice

President is in office. That is because the public will

interpret this Bill as suggesting that abortion is a

potentially criminal act and will interpret prosecutions

under the Bill as endorsing this sentiment.

If the authors of the Bill truly seek to protect unborn

life from criminal violence, they will better accomplish this

purpose by avoiding such expressions as ``child in utero.''

Better alternatives would refer to injury or death to a fetus

or damage to or termination of a pregnancy.

Second: The Bill's apparent purpose of influencing the

course of abortion politics will motivate prosecutors to

exclude those prospective jurors who otherwise would be most

sympathetic to the prosecution's case.

If I were prosecuting a case under this Bill, I would hope

to have a jury that includes persons deeply sensitive to the

rights and interests of pregnant women. Such jurors would

regard an attack on a pregnant woman as being a twofold

crime, comprising both the injury directly inflicted on the

mother and the stark emotional and physical trauma resulting

from injury to or loss of her pregnancy.

But such jurors also will be more likely than others to

believe that pregnant women have the right to exercise

autonomy over their bodies and to choose whether to abort a

pregnancy. I predict that many or most judges will bar

prosecutors and defense counsel from questioning prospective

jurors about their views on abortion or about related matters

such as their religion, religious practices, or political

affiliations. Forced to act largely on instinct, prosecutors

may be inclined to exercise peremptory challenges against

those prospective jurors who appear to be most sympathetic to

the rights of pregnant women. This result clearly would

frustrate the Bill's stated purpose of protecting unborn life

from criminal violence.

Third: The Bill's apparent purpose of influencing the

course of abortion politics offends the integrity of the

criminal law.

To anyone who cares deeply about the integrity of the

criminal law, this Bill's apparent attempt to insert an

abortion broadside into the criminal code is greatly

offensive. The power to inflict criminal penalties is, second

only to the power to wage war, the highest trust invested in

our institutions of government. Because the power to make and

enforce criminal laws inherently carries enormous potential

for abuse, those who exercise that power must always do so

with a spirit free of any ulterior political motive. The

American Bar Association's Standards Relating to the

Administration of Criminal Justice provide that ``[i]n making

the decision to prosecute, the prosecutor should give no

weight to the personal or political advantages or

disadvantages which might be involved . . . .'' (Standard

3-3.9(d).) Not all prosecutors conduct themselves with

fidelity to this principle, but we may readily condemn

those who do not. We may likewise condemn other public

actors who abuse the sacred public trust of the criminal

sanction for political ends.

For these reasons, I object to the current formulation of

the Unborn Victims of Violence Bill. As I am confident that

an alternative version of the Bill can fully accomplish its

stated purpose of protecting unborn life from criminal

violence while avoiding each of the difficulties I have

outlined above, I strongly encourage the Senate to modify the

Bill in the ways I have suggested above or in some other

manner that avoids the freighted and frankly politicized

terms, ``child in utero'' and ``child, who is in utero.''

My thanks to you for your consideration of my views.

Sincerely,

George Fisher,

Professor of Law.

Mr. President, how much time have I consumed?

I have 89 minutes remaining?

I thank the Chair.

I know the Senator from New Jersey is on the floor wishing time.

Good. May I ask the Senator how much time he would like?

Mr. President, I yield 10 minutes to the Senator from New Jersey.

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

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

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

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.

Madam President, I yield as much time as she requires to the Senator from California, Mrs. Boxer. She was here a moment ago.

I yield as much time as she may require.

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.)

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.

I yield the floor. How much time do I have remaining?

Mr. President, could you give us the time remaining on both sides, please?

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.

Equally divided.

Madam President, I come to the floor this morning to begin the debate on the Unborn Victims of Violence Act. I would like first to thank our 40 cosponsors for their leadership and support on this issue.

Let me also thank specifically Senator Lindsey Graham, who championed this issue on the House side for a number of years before he joined us here in the U.S. Senate. He has worked tirelessly to see to it that the most vulnerable members of our society are, in fact, protected.

Let me also thank our lead House sponsors, Congresswoman Melissa Hart from Pennsylvania, and my friend and colleague from the State of Ohio, Congressman Steve Chabot. They have both been great champions of this great cause. They worked tirelessly to help get this important bill passed in the House of Representatives.

Our bill is very simple. I will take just a couple of minutes to explain it. It is a bill about simple justice. It is a bill about doing what is right. I was asked yesterday by one of my colleagues, Why do we need this bill? Why is this bill on the floor?

This is what I responded yesterday and this is what I would say to my colleagues here in the Senate this morning. Imagine a pregnant woman in a national park or a pregnant woman on an Air Force base and she is violently assaulted. As a result of that assault, she loses her child; that child dies. Today, there is no Unborn Victims of Violence Act. Today, unless that Federal park or Air Force base is located in a State that has a similar law, a Federal prosecutor would search the Federal statute books in vain to find anything to charge that assailant for the death of that child, for the death of that unborn infant, the fetus. The only thing that Federal prosecutor would be able to charge that defendant with is the assault of the woman. The death of that child would not be able to be charged as what we would think would be a separate offense. Justice would not be done for that, what we would think would be a separate offense.

This bill corrects that. This bill recognizes there are two victims. There is the victim, the mother, who was assaulted; and there is the victim, the unborn child, who was either injured or killed. It is that simple.

This bill recognizes when someone attacks and harms a mother and her unborn child that attack does in fact result in two separate victims: the mother and her child. That is what this bill does.

I will have more to say about this bill later. I will reserve the remainder of my time.

I object.

He can take it now.

Mr. President, I have a great deal of respect for my colleagues from New Jersey and California. My colleague from New Jersey knows I care about what happens after children are born. I care about their health. I believe I have demonstrated that in the Senate. In fact, he and I have worked on these issues together. I have worked with my colleague from California on many issues having to do with children. We just happen to disagree on this issue.

I have a great deal of respect for both of them. We have worked together on a bipartisan basis on a wide range of issues. I would hope that as we debate this bill, we would focus on the legislation. I say that with all due respect. I don't understand--again, with all due respect to my colleagues--what debate about the motives of people has to do with what the facts are.

I am going to try to confine my debate to what I think are the essential facts. I think they are fairly simple. Let me talk for a few moments about what I believe are the essential facts.

I ask my colleagues who are listening to this debate to remember a couple of things about the Feinstein amendment. I am going to keep coming back to these central facts about the Feinstein amendment.

No. 1, the Feinstein amendment does not recognize a second victim. Our bill does. The Feinstein amendment creates a legal fiction. It is contorted, it twists the law in a sense--maybe a better way of saying it is not that it twists the law; it doesn't do that, but it twists the reality of the common sense of people when they look at this. When they see a pregnant woman who is assaulted and her child dies, they intuitively know there is a victim besides the mother. They know the mother is a victim, but they also know there is a second victim.

The vast majority of the American people, if you ask them was there another victim, will say of course there are two victims. Our bill recognizes the second victim. The Feinstein amendment refuses to recognize the second victim. Now we can talk about punishment and all kinds of things, but it refuses to recognize good common sense.

This bill in front of us has nothing to do with abortion. It has absolutely nothing to do with abortion. We have explicitly exempted abortion in this bill. Yet opponents still try to argue this point.

Our statute could be no more clear on this point. Senator Feinstein uses identical language to exempt abortion or any related activity in her amendment. This bill simply doesn't affect abortion rights whatsoever. The language could not be clearer. I invite my colleagues to pick up the bill and look at the section. It exempts any reference to abortion, anything a mother would do to her own child, anything a doctor would do is exempted. It has nothing to do with abortion, not at all. That is not what this is about.

Point No. 1, this bill recognizes a second victim; the Feinstein amendment does not. If you believe there is a second victim, you cannot vote for the Feinstein amendment. It denies there is a second victim.

The second point I want to make will come as a surprise, I think, to the Members of the Senate. It will come as a surprise to you until you pick up the Feinstein amendment and read it carefully. I invite you to do that. Pick up the amendment and read it carefully.

First, the Feinstein amendment does not punish the criminal for harming or injuring the baby. Let me read it. It only punishes the criminal for ``interrupting or terminating a pregnancy.'' That is the language, ``interrupting or terminating a pregnancy.'' But not for injuring. So if a child is injured, not killed, the pregnancy not terminated, the Feinstein amendment will not cover it. That, to me, is a problem. That is a fatal fallacy, fatal problem.

Here is the language:

Any person who engages in conduct that violates any of the

provisions of law listed in subsection (b) and thereby causes

the termination of a pregnancy or the interruption of the

normal course of pregnancy, including termination of the

pregnancy other than by live birth is guilty of a separate

offense under this section.

It does not cover the injury of a fetus. That is a problem.

Let's turn to the penalty section. The penalty section is fatally flawed. The penalty section won't work. The Justice Department has sent a letter and, in their opinion, the penalty section provides no penalty, under the Feinstein amendment, for the killing of the fetus. It is vague; it is unclear at best. It defines additional crimes as the interruption or termination of a pregnancy. When it describes the punishment, it refers to injury or death. Whose injury or death are we talking about here? Is it the unborn child? Whose injury?

The Feinstein amendment doesn't recognize that the interruption and termination of the pregnancy means the injury or death of the fetus because it won't acknowledge the fetus, of course, as a separate being.

The amendment is circular and really without meaning. Put simply, there is no additional punishment because under this amendment there is no additional victim. The Feinstein amendment goes out of its way not to recognize another victim. What is the reference to? Let me read this section and, again, this is a technical reading, but that is how you have to read a criminal section. This is how judges have to do it. The bottom line is--I am going to say it again and again--if you vote for Feinstein, there will be no penalty at all for the killing of a second victim, the child. There clearly is none for the injury of that child. Let me read the penalty section, 2(a), under the Feinstein amendment:

Except as otherwise provided in this paragraph, the

punishment for that separate offense is the same as the

punishment provided for that conduct under Federal law had

that injury or death occurred to the pregnant woman.

What injury or death are we talking about? To whom?

The language doesn't acknowledge injury or death to the fetus. Who is it referencing in the previous paragraph? It clearly is fatally flawed. It is difficult for me to read this and for people to understand it. But to get the section out, it clearly doesn't work and is fatally flawed. So this does not recognize the death, does not recognize any punishment. It would not provide punishment and it clearly presents a problem.

My friend from California has said the DeWine bill would have no effect on the Laci Peterson case. That is true; it would not. Fortunately, California has a similar law that provides for a second victim, the punishment for the death of that child. While it is true the DeWine bill would have no effect on the Laci Peterson case, the fact is if the Feinstein amendment, or a similar amendment to the Feinstein amendment, had been approved by the California legislature at the time their law was being considered, there would be no punishment for the death of baby Conner Peterson. There would have been in California no recognition for that second victim. There would have been no recognition of the death of that second victim.

If the Feinstein amendment would have passed, or a version of it, in California, if the California legislature would have done what Senator Feinstein is asking us to do today in this Federal legislation, they would not have been able to prosecute for the death of Conner Peterson. They would not have been able to recognize that death as a second victim death. That is the fundamental fact, and that is the fundamental difference between the DeWine bill and the Feinstein amendment.

We have heard a lot of talk about motives and agendas. I think we should stop doing that, and I think we should look to the victims and hear from the victims. There are three victims. The families of the victims were here yesterday. When one talks with the victims, it is clear the victims believe there are two victims. Let me talk about several cases. They are tragic cases and are difficult to listen to, but I think it brings home what we are really talking about.

Let me talk about the example of Airman Gregory Robbins. This is a case about which I have talked many times on the Senate floor, but I think is worth repeating today because it illustrates the injustice that exists today in our Federal law.

In 1996, Airman Robbins and his family were stationed in my home State of Ohio at Wright-Patterson Air Force Base in Dayton. At that time, Mrs. Robbins was more than 8 months pregnant with their daughter they named Jasmine. On September 12, 1996, in a fit of rage, Airman Robbins wrapped his fist in a T-shirt and savagely beat his wife by striking her repeatedly about the head and stomach. Fortunately, Mrs. Robbins survived this violent assault, but tragically, her uterus ruptured during the attack, expelling the baby into her abdominal cavity, causing Jasmine's death.

Does anyone truly think Jasmine was not a victim? I think we know she was. Not only was her mom a victim, but she was as well.

Let me give another example. In August 1999, Shiwona Pace of Little Rock, AR, was days away from giving birth. She was understandably thrilled about her pregnancy. Her boyfriend, Eric Bullock, however, did not share her joy and enthusiasm. In fact, Eric wanted the baby to die. So he hired three thugs to beat his girlfriend so badly that she lost the unborn baby whom she named Heaven. I might add, she lost that baby 1 day shy of her predicted delivery date. Shiwona testified at a Senate judiciary hearing we held in Washington on February 23, 2000. This is what she said:

I begged and pleaded for the life of my unborn child, but

they showed me no mercy. In fact, one of them told me, ``Your

baby is dying tonight.'' I was choked, hit in the face with a

gun, slapped, punched, and kicked repeatedly in the stomach.

One of them even put a gun in my mouth and threatened to

shoot.

Do we really believe Shiwona was the only victim here? Do we really think

we should adopt an amendment that says she was the only victim? I don't think so. How can we suggest to Shiwona that her child was not murdered? Should we twist the law so we don't recognize that? I don't think we should. And Federal law, quite frankly, must recognize this wrong for what it is. It is a wrong against two separate and distinct victims.

Another example: I can think of no better way to tell the story of Baby Zachariah and his mother Tracy Marciniak than by simply reading from her testimony before the House Judiciary Subcommittee on the Constitution which occurred on July 8, 2003. Let me read it:

I carried Zachariah in my womb for almost nine full months.

He was killed in my womb, only 5 days from his delivery

date. The first time I ever held him in my arms, he was

already dead.

There is no way that I can really tell you about the pain I

feel when I visit my son's grave site in Milwaukee, and at

other times, thinking of all that we missed together. But

that pain was greater because the man who killed Zachariah

got away with murder.

Zachariah's delivery date was to be February 13, 1992. But

on the night of February 8, my own husband brutally attacked

me at my home in Milwaukee. He held me against a couch by my

hair. He knew that I very much wanted my son. He punched me

very hard twice in the abdomen. Then he refused to call for

help, and prevented me from calling.

After about 15 minutes of my screaming in pain that I

needed help, he finally went to a bar and from there called

for help. Zachariah and I were rushed by ambulance to the

hospital, where Zachariah was delivered by emergency

Caesarean section. My son was dead. The physicians said he

had bled to death inside me because of blunt force trauma.

My own injuries were life-threatening. I nearly died. I

spent 3 weeks in the hospital. During the time I was

struggling to survive, the legal authorities came and they

spoke to my sister. They told her something that she found

incredible. They told her that in the eyes of Wisconsin law,

nobody had died on the night of February 8. Later, this

information was passed on to me. I was told in the eyes of

the law, no murder had occurred. I was devastated.

We surviving family members of unborn victims of violence

are not asking for revenge. We are begging for justice--

justice like we were brought up to believe in and trust in.

Justice means that the penalty must fit the crime, but that

is only part of it--justice also requires that the law must

recognize the true nature of a crime.

The true nature of a crime, Mr. President.

I know that some lawmakers and some groups insist there is

no such thing as an unborn victim, and that crimes like this

only have a single victim--but that is callous and that is

wrong. Please don't tell me that my son was not a real victim

of a real crime. We were both victims, but only I survived.

I will have more to say about this in a few minutes. At this point, I yield the floor.

Madam President, once again, I want to bring this debate back to its essence. I am afraid so much of the debate from the other side has been about motives--by quoting, with all due respect, the L.A. Times about peripheral issues.

Our intent, if you want to go by intent, is very simple. Our intent is to bring about justice for the victims of crime. Our intent is to bring about justice for the mother and for the child--for the unborn child as well as the mother. It is to conform with what the vast majority of the American people believe; that is, when a pregnant woman is assaulted and she either loses that child or that child is injured, there are, in fact, two victims. It is as simple as that.

On the abortion issue, let us be done with this once and for all. This bill has nothing to do with abortion. The language could not be simpler.

Let me read to the Members of the Senate and invite anybody to read it.

Nothing in this section shall be construed to permit the

prosecution of any person with conduct relating to abortion

for which consent of the pregnant woman or a person

authorized by law to act on her behalf has been obtained or

for which such consent is implied by law.

Two, of any person for medical treatment of the pregnant

woman or her unborn child, or of any woman with respect to

her unborn child.

It is very clear. My colleague argues that this language is going to somehow roll back abortion rights. That is a debate for another day. It is not a debate for today. That language in this bill is very clear.

If this language was a threat to abortion rights, then the language in 29 other States would have been a threat. We have 29 States that recognize fetal homicide law. The language in 16 of those States is virtually identical to the language in this bill.

If the language in this bill was a problem for abortion rights, then it would have been a problem with these other States.

Also, there are some States that have had this language on the books for 30 years, and it has not been a problem for abortion rights.

That is just a bogus issue. Let us stop talking about it, and let us talk about what the issues are.

Let me get back to the two points that I made before. I want everyone to understand the Feinstein amendment. One is not in debate, and one my colleague and I do debate. One I think is not in debate at all; that is, the Feinstein amendment does not recognize a second victim. It goes against good common sense.

Ask someone back in your home State, if a pregnant woman is assaulted and she loses her child, how many victims are there? There are two. If you ask the average person in your State--whether your State is Ohio, California, wherever it is--the average person on the street is going to say: Senator, there are two victims.

That is all we are saying with this bill. We are trying to close a loophole so that if a pregnant woman who is hiking in a national park or is out walking in a national park or a pregnant woman on an Air Force Base--we are not making these stories up. This happens. Pregnant women are attacked all the time. I saw it as a county prosecutor. You ask any county prosecutor--yes, any police officer, anybody who is a victims rights advocate--how often pregnant women are attacked, a pregnant woman who is in a national park, a pregnant woman who is on Federal property and is attacked. What we are simply saying is that it is wrong if a national park or Federal property is in a State that does not have a similar law to this. It is wrong for that Federal prosecutor searching in vain the Federal statutes to find a law for which he can charge that person with the death of a fetus, a child--whatever word you want to use. It is wrong. That happens today. We are closing that loophole.

When this law passes, that won't happen anymore. A Federal prosecutor will be able to say, when law enforcement people come in and they have that case where a woman has been violently attacked, she has been injured but the

child has been killed, they will be able to charge for death of that child. That is the right thing to do. They will be able to file two charges, recognize two victims, and recognize that reality. That is what this does.

Let me state the second thing about the Feinstein amendment. Look at the amendment.

We have to go to the penalty section. This is the Feinstein amendment.

Except as otherwise provided in this paragraph, the

punishment for that separate offense is the same as the

punishment provided for that conduct under Federal law had

that injury or death occurred to the pregnant woman.

Remember, this is a criminal law. I go back to my days as a prosecutor: You have to construe a law strictly. When it is a criminal law, you construe it in favor of the defendant. You give every benefit of the doubt to the defendant. If this is vague, there is a problem for the prosecutor. We have a problem with this one. A serious problem.

We have a letter from the Justice Department that says there is no penalty under the Feinstein amendment. Let's look at this carefully and see why: ``Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as that punishment provided for that conduct under Federal law had that injury or death occurred to the pregnant woman.''

What injury or death? The problem under the Feinstein amendment is it does not recognize the baby or fetus. Who are we talking about? Read this section above. It talks about ``termination of a pregnancy or the interruption of the normal course of pregnancy.'' It does not recognize two assaults, two injuries, two people. There is nothing for it to reference to. With all due respect, it is not drafted right. If we pass the Feinstein amendment, with all due respect, not only are you not recognizing a separate victim--which we all agree on--but, worse than that, there is no penalty for killing the unborn; there is no penalty for injury.

I have already pointed out, and we looked at the language, why there is no penalty at all for injury. That is clear when we look at this: ``causes the termination of a pregnancy or the interruption of the normal course of pregnancy, including termination of the pregnancy other than by live birth,'' et cetera.

Clearly, that is no reference to the injury. What word here has to do with injury? Nothing. Clearly, this has nothing to do with injury. Any child who is injured, not killed, would not be covered. And in the paragraph below, there is no penalty at all.

If we get by that, which we cannot, but even if you get by all of that, you have the problem of the lesser included offense. We cannot get by that. But take one more problem, assuming you could get by that. There is another reason the Feinstein amendment fails to create a separate punishable offense to terminating pregnancy. All it does is recognize attacks on an unborn child under the label of ``interruption or termination of pregnancy,'' then tacks that label on as an element to any one of the 68 Federal crimes specified. The result is a new series of offenses identical to the previous 68, except for the addition of that one element.

For example, now a criminal could face a Federal charge of assault with the result of termination of pregnancy as well as the original charge of assault. This is important. But because he could be charged with both does not mean he could be convicted and punished for both. Instead, he would be protected by a legal principle known to lawyers as lesser included offenses. That principle protects a defendant from being convicted in and punished for a whole series of crimes that are all a subset of a lesser crime.

We know, for example, the crime of manslaughter and murder. We know one defendant cannot be convicted of both charges for the death of only one victim. If someone is guilty of murder, then he or she must have been guilty of all the components of murder, including the components that made him guilty of manslaughter, but that person, of course, is not convicted of both. You cannot be convicted of both manslaughter and murder. If a man is convicted of a felony for stealing $10,000, he is not also found guilty of the misdemeanor of having stolen $500.

Of course, we can convict one criminal of the murder and manslaughter of two separate people because the laws of these crimes differ on one critical point: They have different victims. That is the difference between our bill and Senator Feinstein's amendment. Ours does not have that problem because we recognize two victims. Her amendment does not. Therefore, it is fatally flawed under this principle. Therein lies another problem.

The bottom line is the Feinstein amendment is fatally flawed. It has no penalty section, as well as not recognizing there is a separate and distinct victim.

The Justice Department analyzed and came to the same conclusion. Again, it is a vague amendment. They come at it a little differently, but here is what they say in a letter of March 24:

Additionally, by omitting any reference to the unborn child

but retaining language contained in H.R. 1997 as introduced,

the substitute appears to create an ambiguity that likely

leaves an offense, could one be found, without a

corresponding penalty. The substitute provides that

punishment for an offense prescribed by the legislation is

the same as the punishment provided under Federal law had the

``injury or deaths occurred,'' to the pregnant woman.

In H.R. 1997, the object of the ``injury or death'' was the

unborn child. However, in the substitute the injury or death

provision has no object because the only victim under the

substitute is the woman herself. Because there are currently

no penalties in federal law for the offenses of ``termination

of a pregnancy,'' or ``the interruption of the normal course

of pregnancy,'' there would be no penalty even assuming that

a successful prosecution could be brought.

They have analyzed it a little differently than I did, but they come to the identical conclusion for the same reason. Again, it goes back to this sentence in their letter, ``However, in the substitute, the injury or death provision has no object because the only victim under the substitute is the woman herself.''

That is the problem. That is what we have.

Members who come to the Senate and vote on this Feinstein amendment, which is the key vote, need to understand three things: One, abortion has nothing to do with this debate. We have covered that in the language of the bill. But more important is the precedent in the States has already been set. States have bills like this. They have not interrupted people's rights under the Supreme Court in regard to Roe v. Wade and all the other court decisions. It has not interrupted rights having to do with abortion. It has nothing to do with abortion. That is No. 1.

No. 2, the Feinstein amendment fails to recognize what everybody in this country knows: When a woman is attacked, there are two victims.

And No. 3, the thing to remember is the Feinstein amendment carries no penalty. So we will be saying if the Feinstein amendment is passed, we are turning our backs on these victims. We are turning our backs on the unborn, these kids who are, in fact, injured or killed.

I yield the floor.

Mr. TALENT addressed the Chair.

Madam President, I yield to my colleague.

Yes.

Madam President, I yield to the Senator from South Carolina.

Madam President, I inquire of the Chair, how much time does each side have remaining?

Sixty-two?

Thank you. Madam President, I yield to the Senator from Pennsylvania 5 minutes.

I yield to the Senator from Utah.

In a moment, I will yield to my colleague from South Carolina.

Mr. President, before I yield to my colleague, I want to respond very briefly to my colleague and friend from California in regard, again, to the question of abortion. My colleague is concerned--I understand her sincerity because she has expressed it many times on the Senate floor. I don't doubt that sincerity at all--that somehow this bill sets a precedent regarding abortion.

First of all, we all know statutes cannot overcome the Supreme Court decisions, constitutional law. We should not be concerned about what the statute will do. We particularly should not be concerned when we know many of the States have statutes very similar to what we propose to enact today. In fact, several of the States have had these statutes in place for up to 30 years. They have not in any way changed or infringed on abortion rights. Whatever one might think of abortion rights, these have not affected them and this bill will not affect them. To make sure of that, we put provisions in this statute, which I have read on the floor today, which make it crystal clear they will not in any way affect that. So we have precedent.

We have the fact that statutes cannot interfere with constitutional law, plus we have precedent of many years of experience of State laws not interfering with abortion rights. So there is just no reason for anybody, when they come to the floor to vote on this, to think this is in any way going to affect abortion rights at all.

My friend has talked about the fact that we follow what I believe 16 States have done when we begin to protect the unborn. Some States define it differently. My colleague has cited what California and some States do. They are defined differently. But we follow in this statute what some others States have done.

In our proposed statute, we use this language, and I would say it is not what my colleague, with all respect, has said. This is what the language is:

. . . who is carried in the womb.

``Who is carried in the womb,'' that is the language, the precise term that is used, ``carried in the womb.''

As a practical matter, since this is a criminal statute, we all know that to prosecute under this statute, a prosecutor would have to prove beyond a reasonable doubt, to prosecute under this law, that there was this unborn child. They would have to prove the existence of the child. And then they would have to prove there was death or injury to the child beyond a reasonable doubt. They have to prove the existence, first of all, beyond a reasonable doubt, and then they have to prove the death or injury beyond a reasonable doubt.

It is not, with all due respect, a question of at the moment of conception that this protection, as a practical matter, would kick in. First, it has to be carried in the womb; second, you would have to be able to prove the existence and then prove there was injury or prove there was death. That is the practical application of the statute we propose to pass.

I yield to my friend and colleague from South Carolina.

Mr. President, how much time is remaining?

And the Senator from California?

I suggest the absence of a quorum, with the time to run equally on both sides.

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

We are getting close to the end of this debate. I think there are just a few points about this amendment I would again like to stress. One is this whole debate today has nothing at all to do with abortion. I talked about that. I will not belabor the point. We have made that clear in the language we have written. It is set down in the precedent of States that have passed similar legislation. It has not had anything to do with abortion.

If Members of the Senate truly believe what the vast majority of the American people believe, and that is there are two victims, then they have to turn down the well-intended Feinstein amendment. The Feinstein amendment tries to provide for enhanced penalties. I believe it is clear, from what I have spelled out a few moments ago, she has failed to do that, that there are no enhanced penalties. Even if there were, it is a contortion of the law and logic to deny the fact that when a pregnant woman is violently attacked and she loses her child, for the law to say we refuse to recognize there is a second victim, and that is what the Feinstein amendment, unfortunately, says. The Feinstein amendment denies the fact there is a second victim.

We have heard on the Senate floor today, time and time again, these horrible stories that Senator Feinstein and I--our hearts go out to these victims. Everyone's heart does. But how can we say to these families that these children who were lost, sometimes the grandchildren who were lost, were really not, in the eyes of the law, victims?

In the eyes of everyone else in society they are victims. Shouldn't the law also recognize them as victims? That is what we are saying with our bill. Unfortunately, the Feinstein amendment denies them that.

I reserve the remainder of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in opposition to the so-called Unborn Victims of Violence Act. Here we are again to consider a bill which has now, for three Congresses, unnecessarily mired what should be a laudable and uncontroversial effort to punish truly heinous crimes in the emotionally charged and legally suspect back allies of the abortion debate. This is regrettable, Mr. Speaker, because real people are suffering real harm, while this House has played abortion politics instead of acting to punish truly barbaric crimes.

The issue today is straightforward: Is it or is it not necessary to enact a bill making a statement endorsing the controversial and legally revolutionary notion that a fetus is a legal person from the moment of conception in order to punish these criminals with the severity that they justly deserve?

That is the heart of the issue. The proponents of this bill are taking what should be a straightforward issue and unnecessarily turning it into a controversial one.

Why does this matter? Quite simply, because if the law recognizes that a fetus is a legal person from the moment of conception, as this bill would do, when it is a zygote, a blastocyst, an embryo, a simple collection of undifferentiated cells, then the law must recognize and protect the rights of that person on a legal basis with the rights of the adult pregnant woman. If our laws recognize that, then there can be no right to choose, because, logically, terminating a pregnancy even in its earliest stages would be killing a fully legal person.

So when the proponents tell you that this is not about the right to choose, this is not about the right to have an abortion, remember that very simple and clear fact. And, remember that we have an alternative that is just as tough on these criminals: the Lofgren substitute. We do not have to choose between an assault on Roe v. Wade and permitting these heinous criminals to walk free.

That is a false choice, but I do not ask my colleagues to believe me. Take the proponents at their word.

Senator Orrin Hatch, the chairman of the Senate Judiciary Committee, a sponsor of this bill in the other body, had this to say, ``They say it undermines abortion rights. It does, but that's irrelevant.'' CNN, May 7 last year.

January 19 last year, Samuel B. Casey, executive director of the Christian Legal Society, told the Los Angeles Times, ``In as many areas as we can, we want to put on the books that the embryo is a person. That sets the stage for a jurist,'' a judge, ``to acknowledge that human beings at any stage of development deserve protection, even protection that would trump a woman's interest in terminating a pregnancy.''

May 19 last year, Dr. Joe Cook, vice president of the American Association of Pro-Life Obstetricians and Gynecologists, was quoted by the Associated Press as saying, ``We have to approach this in a way that's doable, a step at a time. This bill is aimed at establishing that a fetus in utero is a human being and has human rights.''

So please do not insult our intelligence by saying this bill is not about abortion rights.

The proper question is not whether we will recognize a separate or a new crime, but how we will do so. The Lofgren substitute recognizes a special kind of evil embodied in these crimes, but would recognize the assault on the fetus as a second crime against the pregnant woman, a second, separate crime, but against the pregnant woman, not against the fetus. The distinguished chairman of the Subcommittee on the Constitution criticized that point of view as the ``ideology of those who are unwilling to recognize the unborn child in the law.'' Precisely. That is the threat to Roe, and despite the disclaimers in the bill and the disclaimers of the distinguished chairman a few minutes ago, that is what we are talking about today.

If a fetus is recognized as a legal person, then this bill would open the door to barring abortions, to prosecuting women or to restraining them physically for the sake of the fetus. Some courts and State governments have already experimented with this approach. The last time we had occasion to consider this bill, the Supreme Court had just struck down a practice in the then-sponsor's home State of South Carolina in which a hospital would give the result of pregnant women's blood tests to local law enforcement for the purpose of initiating legal action against those women who might take action that might in some way endanger the fetus. Once we recognize even a zygote, two cells, as having the same legal status as the pregnant woman, it would logically follow that her liberty could be restricted to protect its interests. The whole purpose of Roe is to say that her liberty interests trump the interests of the fetus. This bill says exactly the opposite.

For those of us who are prochoice, the right to choose extends not just to a woman's right to have an abortion if she wants, but also to her right to carry a pregnancy to term if she wants and to deliver a healthy baby in safety. That is why we supported the Violence Against Women Act. That is why we support programs to provide proper prenatal care and nutrition to all women. That is why we support proper health and nutrition services after a birth. That is why we support other initiatives like the Family and Medical Leave Act. We do not believe that life begins at conception and ends at birth. We have an obligation to these children and to their parents both prenatally and postnatally.

Let there be no mistake, using physical violence against a woman to prevent her from having a child that she wants is just as much an assault on the right to choose as is the use of violence against women who wish to exercise their constitutional right to choose to end their pregnancy. A woman, and only a woman, has the right to decide when and whether to bring a child into the world; not an abusive partner, not a fanatic, not even Congress.

If we are serious about this problem, and the problem of domestic violence against pregnant women, we have effective remedies at our disposal. If we want to play abortion politics, we have an appropriate vehicle, this bill, before us for that purpose.

Violence against a pregnant woman deserves strong preventive measures and stiff punishment. According to the Journal of the American Medical Association, homicides during pregnancy, and in the year following birth, are the leading pregnancy-related death among women in the United States. Among nonpregnant women, it is the fifth leading cause of death.

Mr. Speaker, it is a disgrace that while these preventable crimes continue to occur, Congress fiddles with largely symbolic legislation designed to interfere with the right to choose rather than taking affirmative steps to deal with this real problem. Why does this Republican-controlled Congress and White House continually refuse to fund fully and adequately the Violence Against Women Act? It appears that many of the Members who have signed on to this bill are the same ones who voted to divert funds from protecting women from violence to protecting stock dividends from taxation.

We owe it to these victims to enact strong penalties, ones which are not constitutionally suspect, to end these heinous crimes. I urge that we adopt the Lofgren substitute to make an assault that harms a fetus a second crime with just as severe or more severe penalties as with this bill, but a second crime against the women so as to not to get into the question of rights of the person to full personhood, which is, of course, the purpose of this bill, but would undermine Roe v. Wade, despite the disingenuous disclaimer of some of the other people on the other side. Let us not crowd the issue of fighting domestic violence, of fighting violence against women and pregnant women, by plunging a legitimate law enforcement effort into the murky waters of the abortion debate.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the distinguished chairman said a moment ago that in the Innocent Child Protection Act of 2000 we made settled law the personhood of the fetus. It is not correct. In the Innocent Child Protection Act of 2000, we simply said that a pregnant woman could not be executed, and we defined a pregnant woman as someone who had a child in utero, and then defined, as the chairman said, the words ``child in utero.''

It is not what we are talking about here. For the purpose of saying you cannot execute a pregnant woman, we have defined what a pregnant woman means. That is all that bill did.

This bill seeks to establish a fetus as a separate legal person by giving it separate legal rights in order transparently to make it a separate legal person within the meaning of the 14th amendment that says no person shall be deprived of life, liberty or property without due process of law. That is exactly the opposite of what the Supreme Court said when it said we have never held a fetus to be a person in the full meaning of the term. This bill is an attempt to whittle away at that term.

The distinguished chairman of the subcommittee says we have to acknowledge the particularly heinous nature of the crime, and indeed, we do. The Lofgren substitute acknowledges the assault on the fetus as a separate crime to be separately punished, to be additionally punished, but a separate crime against the woman because her interest in carrying that pregnancy to term and bearing a healthy baby is assaulted.

It does not recognize it as a separate crime against a separate person, which is the object of this bill and what we are debating, and which is why this bill, despite the disclaimers of the proponents, is a direct assault on Roe v. Wade, a direct assault on abortion, and if all they are interested in is to make a separate crime when you assault a

fetus, when you harm a fetus, then the Lofgren substitute is perfectly adequate for that. But their aim is to damage the right to choose, and that is the real purpose of this bill.

Mr. Speaker, I yield 5 minutes to the gentlewoman from New York (Mrs. Lowey).

Mr. Speaker, I yield 3 minutes to the gentlewoman from Illinois (Ms. Schakowsky).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the gentleman from Iowa just hit the nail on the head. He said the purpose of this bill is to recognize that there are two victims, two people involved in this. That is exactly the point of this bill, and that is exactly why we should not pass this bill without the Lofgren substitute. I am glad the previous speaker and some of the other speakers on the other side stripped away the false rhetoric on this bill. This bill is not about punishing an assault on a fetus separately; the substitute as well as the bill does that. This is not about giving it an additional punishment; the substitute as well as the bill does that.

This is about saying that there are two victims, not one victim; that the fetus or the embryo or the zygote, depending on the status of the pregnancy, is a separate legal person. That is the point of the bill. That is why we must have the substitute, why we cannot agree to the bill, because the whole point of the bill is to establish legally separate fetal personhood, which would undermine the entire rationale of Roe v. Wade and undermine a woman's right to choose, because if a fetus is a separate legal person, how can she choose to terminate the pregnancy?

This is revolutionary notion going way back to Biblical law. If we look at the original Five Books of Moses, it says very plainly if you assault a woman and she dies, you should be put to death. And if you assault a woman and she miscarries, you shall pay her monetary compensation. In other words, by killing the fetus, you have damaged an interest of the woman for which she is due compensation, but you have not committed murder as you have if you kill the born person, the woman.

So we have never in our history recognized a fetus as a separate legal person. The Supreme Court in Roe v. Wade specifically says we have never recognized a fetus as a separate person.

If we were to do so, then we would get into the 14th amendment question that you cannot deprive a person of life, or liberty or process, without due process of law; and that is the purpose of this bill. That is the purpose of similar bills in the State legislatures, I suspect, to give underpinning to a future Supreme Court majority to say that we recognize a fetus as a person within the meaning of the 14th amendment and, therefore, abortion is murder and, therefore, Roe v. Wade is overruled and, therefore, States have no right to legalize murder and you would need a constitutional amendment to permit abortions in this country.

That is the real point of this bill. And strip away all the disingenuous rhetoric about everything else, because everything else we agree on. We agree that there ought to be an additional penalty if you harm the fetus when you assault a woman. We agree that it should be a separate additional crime. The only question here between the bill and the substitute is should the separate additional crime for harming the fetus be a crime against the woman as we say, an additional separate crime against a woman deserving an additional separate penalty? Or should it be an additional crime against a second person, the fetus being recognized as a person?

That is the issue in this bill and this substitute. To say that it is not and to quarry the abortion debate is quite simply disingenuous. That is why the bill was introduced. That is why they are pushing it. It is why we are opposing it.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the gentleman from Florida mentions various polling data that large majorities of people who are polled say that someone who attacks the woman and harms the fetus, that there are two separate crimes here. There is no dispute on that point. We agree with that. There are two separate crimes. The substitute as well as the bill in chief make it two separate crimes. That is not at issue. What is at issue is who is the victim. The substitute says it is a separate crime against the woman. Two crimes, two punishments for separate crimes against the same victim. The bill says two victims. That is the distinction here. Are there two crimes? Yes, we say. Yes, they say. Are there two victims? Yes, they say from a legal point of view. No, we say, she is the victim of a second crime because the law does not recognize the fetus as a full person.

That is what this bill seeks to do. So it is not a question of two separate slaps on the wrist. We ought to punish the crime severely. The substitute punishes the crime as severely, in some cases more severely than does the bill. The question is do you recognize one victim or two victims, because there are legal consequences, there are juridical consequences, there are consequences of undermining Roe v. Wade and the right to choose based on whether you say this fetus is a person for legal purposes or simply that you say the woman is a victim twice and we will punish it appropriately. That is the question, not whether there are two crimes.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield such time as she may consume to the distinguished gentlewoman from Texas (Ms. Jackson-Lee).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the distinguished chairman, first of all, I congratulate him for endorsing the right to choose. But second of all, he talked about the woman who has chosen to bear her pregnancy to term, to have a child, and an assault which destroys her fetus or damages her fetus is an assault on her right to choose, and indeed it is. He is entirely right. That is why the substitute makes the assault on her fetus a separate crime with a separate penalty against her because it is indeed an assault on her right to choose to carry that pregnancy to term, and she is the damaged party because she has lost her right to carry the pregnancy to term. She has lost her right to bear a child, and that is why in the substitute we make it an additional crime against her.

The bill, of course, makes it a separate crime against the fetus, and that is the question here.

Also, the distinguished gentleman from Florida (Mr. Stearns) quoted Exodus 21:22. He said it was 22:22, but it is 21:22. He misquoted what it said. Before I read it, let me be very clear: I did not raise this reference to the Bible because I think we ought to enact Biblical or religious law in this Chamber, far from it, but simply to show it has always been regarded, our civilization generally has regarded back to Biblical times the fetus as not having the status of a separate person.

Exodus 21:22 reads as follows: ``If men strive and hurt a woman with child so that her fruit depart from her,'' in other words, she has a miscarriage, they cause the destruction of the fetus, ``and yet no mischief follow, he shall be surely punished and he shall pay as the judges determine,'' monetary compensation. ``And if any mischief follow, then they shall give life for life.''

Now, I am not sure what the Bible means by ``mischief.'' I have an interpretation here from a rabbinical source that says it means if she dies.

But, in any event, if she does not die, if mischief does not follow, if she has a miscarriage, monetary compensation. It is only when mischief follows, when she dies, that he is guilty of a capital crime. That is precisely because at least the Bible did not consider the fetus to be a person for whose killing it is a capital crime, as killing a born person is.

Again, I cite this not because we are bound in enacting civil law to enact Biblical law, we are not, obviously, but simply to show, as I mentioned earlier, this bill, by trying to establish the fetus as a separate person for legal purposes, is a radical departure not only from Anglo-American legal traditions, but from all of Western legal traditions going way back to the Bible.

Mr. Speaker, I am pleased to yield 5 minutes to the distinguished gentlewoman from New York (Mrs. Maloney).

Mr. Speaker, I yield 1\1/2\ minutes to the distinguished gentlewoman from California (Ms. Solis).

Mr. Speaker, I yield 3\1/2\ minutes to the distinguished gentlewoman from Wisconsin (Ms. Baldwin).

Mr. Speaker, I yield 2 minutes to the distinguished gentlewoman from California (Ms. Woolsey).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I will read into the Record some letters that we have here. This bill has been represented as a bill on family violence. We have here a letter in opposition to the bill and in support of the Lofgren substitute from the Family Violence Prevention Fund. It says: ``If Congress is serious about stopping domestic violence against pregnant women and helping women and children who are victims, Members will quickly pass the Domestic Violence Screening, Treatment and Prevention Act, H.R. 1267.''

The American Association of University Women is opposed to this bill. The National Women's Law Center is opposed to this bill.

The National Council of Jewish Women is opposed to this bill in which they say that ``this bill defines an unborn child as a member of the species homo sapiens at any stage of development. For the first time, it gives separate legal protection to a fertilized egg, embryo, or fetus and mandates penalties for harm to an unborn child equal to those mandated for harm to the woman herself. This legal definition will set a precedent that the anti-choice movement can exploit in its ongoing efforts to equate abortion with murder. And it would establish a foundation on which to build a case that the rights of fertilized eggs, embryos, and fetuses are apart from and superior to the rights of the women in whose bodies they develop.

``The Unborn Victims of Violence Act is a sham designed to exploit the understandable public sympathy for a woman who loses her pregnancy or her life to violence in order to promote an agenda by which women will in fact lose control of their bodies to the State.'' That is from the National Council of Jewish Women.

The National Abortion Federation, the Religious Coalition of Reproductive Choice, the American Civil Liberties Union, NARAL, People for the American Way, the National Organization for Women, all of these groups are concerned either about abortion rights, about reproductive rights, about women's rights, about domestic violence; and they are all opposed to this bill.

Juley Fulcher of the National Coalition Against Domestic Violence, which is the group that for the last 25 years has led the fight for antidomestic violence legislation in the States and in the Congress, testified against this bill in our committee, and I commend her testimony to my colleagues.

Mr. Speaker, I will insert all of these letters into the Record at this time.

Family Violence Prevention Fund,

Washington, DC, January, 27, 2004.

Hon. Jerrold Nadler,

Rayburn House Office Building,

Washington, DC.

Dear Representative Nadler: On behalf of the Family

Violence Prevention Fund, I am writing to express concern

about the Unborn Victims of Violence Act, H.R. 1997, passed

by the House Judiciary Committee on January 21. We are deeply

disappointed that some are promoting this bill as a way to

end domestic violence, when better and more direct measures

to stop family violence languish in Congress year after year.

Members of Congress who want to stop abuse will put their

energy into passing the prevention and intervention measures

that offer great promise to stop violence before it starts.

The murder of Laci Peterson was an unspeakable tragedy, but

many laws designed as quick fixes have caused great harm. For

example, mandatory domestic violence health reporting laws

deter women from seeking the medical help they need. We need

to step back and consider what actually works. Our goal must

be to stop violence against all women, regardless of whether

they are pregnant.

If Congress is serious about stopping domestic violence

against pregnant women and helping women and children who are

victims, Members will quickly pass the Domestic Violence

Screening, Treatment and Prevention Act, H.R. 1267. this

essential bill would train health care providers to routinely

screen female patients for a lifetime history of abuse and

give women access to critical domestic violence services when

abuse is identified. Introduced in the House in March of 2003

by Representative Lois Capps (D-CA) and Steven LaTourette (R-

OH), this bill has the potential to prevent tragedies by

helping victims before violence escalates.

We also urge Congress to fully fund all Violence Against

Women Act programs and support legislation that would

actually prevent domestic violence before it begins. Domestic

violence prevention legislation should include services for

children who are exposed to abuse, programs that support

young families at risk of violence, and efforts to teach

young men and boys how to develop healthy, non-violent

relationships. Such legislation would do much more to stem

the tide of domestic violence than the Unborn Victims of

Violence Act.

Finally, we wish to thank you for your continued leadership

and support on this issue. As an advocate in Congress and as

one of our Founding Fathers, you truly make a difference in

the movement to end violence against women and children. If

we can be of assistance, please do not hesitate to contact

Kiersten Stewart in our Washington, D.C. office at 202-682-

1212.

Sincerely,

Esta Soler,

President,

Family Violence Prevention Fund.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I congratulate the distinguished gentleman from Illinois for the passion he brings to this discussion, but more than that, for the clarity and honesty he brings to this discussion, for he has swept away much of the rhetoric and much of the underbrush which impedes a clear view of this and defined the real issue.

This is a bill about abortion, as he quite clearly recognizes. Both the bill and the substitute have the same practical impact. They both define two crimes. They both define the same penalties. They both have the same deterrent effect. That is not the issue, as he recognizes.

The bill defines the fetus as a person from the moment of conception. The substitute does not recognize the fetus as a person, for legal purposes, from the moment of conception. That is the difference, and that is the core of the abortion debate, as the distinguished gentleman recognizes.

The people who believe abortion to be murder believe a fetus, a zygote, a blastocyst is a person, a full human person with full and equal and legal rights from the moment of conception. We do not. We do not use the euphemism ``a right to choose'' as a euphemism for abortion. We support a woman's right to choose to have an abortion if she wishes. We support a woman's right to bear a pregnancy to term if she wishes. That is why we say we support the right to choose.

Abortion is clearly troubling emotionally and intellectually to many people. I, for one, and I can only speak personally, would find an abortion of a 9-month pregnant fetus, that is to say, a 9-month-old fetus, a horror, and I believe it is, in fact, illegal, except to save the life of the mother. On the other hand, I do not believe that a two- cell zygote after conception is a human being. I do not believe that. I believe that it has the potential. It obviously has the potential to become a human being, but it is simply two cells, and I have no compunction about an abortion of a group of cells. I do not believe it to be a human being.

That question, whether a small clump of cells or an embryo is a human being or not, is not a question that we are ever going to agree on. The chairman said the abortion debate is going to be with us forever, and I think he may be right, certainly a long time. We are not going to disagree on that question.

The difference is I respect everyone's right to their opinion, whether informed by physiology, by religion, by morality, by their concept of morality, to make that decision for themselves as to how they regard a blastocyst or a zygote. Some religions declare it a human; some religions say no. I do not think it is the job of Congress to dictate to people how to make that very personal, moral decision. I believe that decision is one which must be left to a woman.

If a woman says that, to me, as the woman, the embryo at early stage of development is a human being, and I will not have an abortion even if it risks my life, I will respect that decision. She is entitled to it. I would not support Congress coming in and saying we will save her life despite her will if she is competent because we do not agree with her moral decision. On the other hand, if she says, my moral decision is that I do not believe an early embryo or fetus is a human being and I want to have an abortion, that is her decision. I will not want Congress or the State legislature or the President to say, you are wrong morally, my moral conviction is superior to yours, and therefore, I will use the power of the State, the power of compulsion to put my moral conviction over yours. That is the debate here.

This bill is mostly a sham. The distinguished gentleman from Illinois takes the sham away and says what is really at stake, what is really the issue, and the real issue is are we going to say, which we have never said before, we had that Biblical passage

which I brought, as I said before, I do not think Congress ought to enact Biblical or religious law into civil law, but I brought it to show that in the Biblical times they did not regard a fetus as a person, because if you killed the fetus, you had monetary compensations. If the woman died, there was a capital punishment because the fetus is not regarded as a full person. That brought back, we have not regarded an Anglo-Saxon law, a Roman law up until now, a fetus as a full person.

Now, because of the abortion debate that erupted 30 years or so ago, the last 30 years, people have tried to change the law to say that we should give legal recognition to the assertion that a fetus or an embryo from the moment of conception is a person for legal purposes. We do not agree with that. This bill would do that. Therefore, we are opposed to this bill.

Some people have that opinion. Some people have that conviction. I respect the conviction. Some religions say so. I respect that. Others disagree. We should not use the power of law to impose that opinion, that theological opinion, that physiological opinion, that moral opinion on people who do not share it and wish to have abortions or other acts that may flow from that.

That is the distinction here, and this bill is an abortion bill despite not what the gentleman from Illinois said, but some other people said, because, as I said before, the consequences of the defining a second crime, the substitute would do, giving a severe penalty, giving additional penalties, are the same in the bill and the substitute. The difference is the legal underpinning, and the only reason we care about the legal underpinning is because of what it says about the key distinction underneath the legal right to an abortion and the underpinning for Roe v. Wade.

I yield to the gentleman from Illinois.

Mr. Speaker, reclaiming my time, I understand, and I am not an expert in probate or estate law, but I do understand that as the fetus gets older, our law gives it more recognition. In fact, the Supreme Court in Roe v. Wade said in the first trimester the interest of the woman and her choice completely prevails, you cannot regulate abortion. In the second trimester there is more of an interest, and, therefore, you can regulate; and in the third trimester after viability, you can prohibit abortion. That is in Roe v. Wade because it recognizes that there is more interest that attaches. I do not deny that, and exactly how much attaches and so forth we can debate in a lot of contexts.

What I am saying is that the definition of the fetus or the embryo as a human being, as a person, for purposes of law in all respects, which is what this bill would do, we have never done. We do not do now, we have never done, and in my opinion we should not because it is one conception. It is a defensible proposition, but it is not a proposition that many people and religions agree with, and it is not a proposition that we should impose by Congress pro or con. I urge adoption of the substitute, not the bill.

Mr. Speaker, I yield 3 minutes to the gentlewoman from California (Ms. Watson).

Mr. Speaker, I yield back the balance of my time.

Mr. President, on behalf of the Senator from Ohio, I yield myself such time as I might consume on his side.

Mr. President, I inquire first how much time is remaining for the Senator from Ohio.

Thank you, Mr. President.

I thank my colleagues for being here to participate in a difficult debate. I have a difficult set of stories I want to tell. If any of the individuals here in this body, or watching, are interested in talking to the individuals involved, they are actually outside in the lobby. I invite anybody to come out. There are grandparents, mothers of victims--there are the women who themselves were assaulted and lost a child. They are here. For those individuals here would care to visit with them, they would love to have a chance to tell their story.

The question is simple: do we have one victim or two involved in violent crimes such as these? That is the simple question. I will present a series of case studies to my colleagues and then I will ask my question again--colleagues, do we have here one victim, or two?

We start with the story of Christina and Ashley Nicole Alberts. We have a chart which presents a heartbreaking picture. I think it needs to be shown to better tell the story. This is a gut-wrenching picture of Christina and Ashley Nicole Alberts (you can see them there in the coffin). It is a difficult picture. This body needs to know what the Unborn Victims of Violence Act is about--the victim.

I ask my colleagues to bear in mind that the Unborn Victims of Violence Act states there are two victims--there are two victims in this picture. The amendment we are considering right now, the Feinstein amendment, says there is only one victim--one victim in this picture. I simply ask my colleagues to make that determination. Is there one victim or are there two in this picture? Here is the story.

In December 1998, Christina was nearly 9 months pregnant.

Ashley was looking forward to life with her soon-to-be-born daughter whom she could definitely feel moving, alive and well, and growing in her womb. When she found out she was going to have a girl, she decided to name her Ashley Nicole.

However, this earthly life--which all of us living and breathing here today enjoy--tragically came to a screeching halt for Christina and Nicole on December 12, 1998. On that day, some thugs were going around robbing homes for money. The thugs entered the house where Christina was. Christina recognized one of them, and because she recognized one of them, it cost her and her baby Ashley Nicole their lives.

Christina was beaten. Can you imagine someone beating a woman in the ninth month of her pregnancy? Yet they did. I think of my own family and my own wife if she were in that type of situation.

Christina was then forced to kneel, and she was executed--shot in the head. Once the trigger had been pulled, releasing the bullet that abruptly ended her life, one might think at least the physical pain from the crime was over for Ashley Nicole. It was not. When her mother's heart stopped, her inutero child does not die instantly. Instead, the inutero baby dies slower. When the mother's heart stops beating, the baby begins to suffocate for lack of oxygen. The baby can feel. The baby is in pain. At 4 minutes, the baby begins to suffer severe neurological damage. The process gets worse. Ashley Nicole would have finally died 15 minutes after her mother Christina had been shot and killed.

Look at this photo again of Christina and Ashley in the coffin. Is there one victim? Or are there two? Who will say there is only one victim in this coffin? Yet this substitute amendment we are considering will say there is only one victim.

What about the family? What about Ashley Nicole's grandparents? What happened to them after the murders? Christina and Ashley Nicole lived in Kanawah County, West Virginia.

Her grandmother is here today.

In addition to the horrific news of their daughter and granddaughter's murder, they were further traumatized to learn the West Virginia murder statute does not allow the prosecution of an individual for the murder of an unborn child.

Do you know what happened in the murder trial for Christina and Ashley's killer? Christina's pregnancy could not even be discussed in court. Any recent photos of Christina shown during the trial could only show facial shots. Why? Because the court said any pictures of Christina in which it would have been obvious she was pregnant would have been prejudiced.

I ask my friends from West Virginia to support their constituents, the Alberts, by opposing the Feinstein substitute and voting for passage of unamended Unborn Victims of Violence Act.

I have another story to tell--Heather Fliegelman Sargent.

In this picture with her mother, as you can see, 20-year-old Heather was well into her pregnancy. Heather was 8 months pregnant with her son Jonah.

I also point out that her mother and the grandmother of Jonah are here with us today in the lobby, if people should care to visit with her.

Sadly, both the lives of Heather and Jonah were taken in January 2003, over a year ago. Heather was found dead with multiple stab wounds in her home in Bangor, ME. Her husband Roscoe Sargent was tried on one--only one--count of murder.

The Bangor Daily News reported on January 10, 2003: ``That Heather Sargent was pregnant did not affect the charges brought against her husband . . . No matter how advanced the pregnancy, Maine's homicide law does not apply to unborn fetuses.''

But listen to this. Another news story on that same day, January 2, 2003, tells us that ``Police also reportedly found several dead cats at home. Whoever killed the cats faces charges under the State's animal welfare act, while no charges will stem from the death of the unborn baby.''

Is it even remotely rational to charge someone with the death of these cats and yet not charge them with the death of a viable 8-month- old baby?

As we move to the next chart in the same case, I want to pause for a moment and urge caution for any parents who may be watching with young children present. They may not want to view this. It is a serious matter, and these are real life stories that people need to hear. But, nonetheless, they are difficult.

I would simply ask as we move to the next chart, are we looking at one victim or two? On the left in the chart is Heather before she was stabbed to death, and on the right is Jonah who also died in the attack.

The grandmother of Jonah is here with us today.

I hope Senators will hear the pleas of their constituents--the family of Heather and Jonah who are here in the Senate today watching, as I noted. Please, in their behalf, on behalf of Heather and Jonah, oppose this substitute that says there is only one victim.

The Feinstein substitute would increase penalties for Federal crimes in which a pregnant woman is a victim, but it would also write into Federal law the doctrine that such a crime has only a single victim. If we pass this Feinstein amendment, and a mother survives such an attack, she will be told, ``We can prosecute your attacker for assault but not for murder--the law says nobody died.''

This cannot and should not be. On behalf of Heather and Jonah, I urge my colleagues to oppose the Feinstein substitute and support the underlying bill un-amended.

I have another story to tell. This picture shows the late Ashley Lyons of Kentucky. Ashley was killed when she was 21 weeks pregnant with her son Landon, in January of this year--just 3 months ago.

Her parents and Landon's grandparents are here today. They are in the lobby, if anybody would care to meet with them. I have met personally with them. They are very passionate about this case and about what took place. If Ashley and her son Landon were with us today, they would be planning for Landon's birth in just a little over a month. I have a staff member who is expecting a child in a little over a month, so this really hits home.

Rather than telling the story of Ashley and Landon myself,I would like to read their story as it was written by the mother and grandmother, Mrs. Carol Lyons. As I noted, Mrs. Carol Lyons is with us here today, along with her husband Buford. It was their efforts that helped get an unborn victims law passed in Kentucky--too late for their daughter and grandson, but not too late for other victims.

I will read you this story which actually quotes Ashley, as written by her mother, the grandmother of Landon. It was written February 25, 2004.

I note parenthetically that if this crime had happened on a military base where only Federal law applies, there would be only one victim-- not two--unlike California law, which acknowledges two victims of violence.

Ashley's mother writes:

On January 7, I was seeing my grandson, Landon, for the

first time. Landon was moving around in an ultrasound image

on the TV screen in our home in Stomping Ground, Kentucky. We

could clearly see Landon's little heart beating. We could see

his little face. Just a few hours later, Ashley and Landon

were both dead. They were found murdered--shot to death in a

local park.

Later, I found a journal that Ashley had been writing to her baby. Right at the beginning, when she was only two months pregnant, she wrote how she had rejected advice to get an abortion.

Clearly Ashley made a choice to have a child. She wrote in her journal: ``I couldn't do that. I already loved you.''

Ashley also wrote: ``You are the child I have always dreamed about. I know that it will be a long time before I meet you, but I can't wait to hold you for the first time. I love you more everyday. Always, Mommy.''

Yes, the killer took two lives--each with a long, bright

future ahead. It is heartless and cruel to say that the law

must pretend this is not so, in order to preserve ``choice''

on abortion. Ashley had made her choice--and she chose life.

This, again, is her mother Carol speaking.

Our case has been widely reported in Kentucky. In response,

both houses of the legislature passed a strong fetal homicide

bill, and on January 20th, Governor Ernie Fletcher signed it

into law.

I pray that Congress, too, will soon pass the Unborn

Victims of Violence Act, which will allow a criminal to be

charged for any harm he does to an unborn child during

commission of a Federal or military crime.

Of course, laws are not retroactive, so no laws enacted now

will allow full justice to be done on Landon's behalf.

But they will ensure in the future no mother, grandmother,

or other family member will ever again be told that the law

is blind to the loss of a child who is unborn but already

living and loved.

I ask my colleagues to listen again to Ashley's words to her child Landon--both victims, both were murdered:

You are the child I have always dreamed about. I know it

will be a long time before I meet you, but I can't wait to

hold you for the first time. I love you more every day.

Always, Mommy.

I ask my colleagues, is there one victim, or are there two? Is it one victim or two when Ashley and Landon were murdered?

I have another case--unfortunately, there are too many of these cases--that demonstrates why this law needs to be dealt with. Here is a picture of Tracy Marciniak holding her son Zachariah 12 years ago. This is a case from Wisconsin.

We all have precious baby photos. I have five children, and I love each of them and have precious photos. This should be a happy baby photo, but if you look closely, you will see it is not. You can see it by the look on Tracy's case, by the coffin behind her, and by the funeral flowers. Tracy's son Zachariah is dead and she, Tracy, survived, and is here today. If people would like to visit with her, she is in the lobby.

In 1992, in Wisconsin, Tracy was terribly beaten. She lived and her son Zachariah died. I have spoken with Tracy, and I have heard how the loss of Zachariah hurts her to this very day. Regrettably, justice was not served. Was Tracy and Zachariah's assailant charged with the murder of Zachariah? No. In Wisconsin, law enforcement authorities told Tracy's family they could only charge the attacker with assault; in the eyes of the law, no one died.

What is more, Tracy's attacker says he would not have attacked her if he could have been charged with murder. Let me state that again: If Tracy's attacker had known he could have been charged with murder, he would not have attacked her.

I would like to read a portion of Tracy's July 8, 2003, testimony in front of the House Judiciary subcommittee, where she has spoken about this case before. This is Tracy Marciniak's statement:

I respectfully ask that the members of the subcommittee

examine the photograph that you see before you. In this

photo, I am holding the body of my son, Zachariah Nathaniel.

Often, when people see the photo for the first time, it

takes a moment for them to realize that Zachariah is not

peacefully sleeping. Zachariah was dead in this photograph.

This photo was taken at Zachariah's funeral.

I carried Zachariah in my womb for almost nine full months.

He was killed in my womb only five days from his delivery

date. The first time I ever held him in my arms, he was

already dead. This photo shows the second time I held

him--it was the last time.

There is no way I could really tell you about the pain I

feel when I visit my son's grave site in Milwaukee, and at

other times, thinking of all we missed together. But that

pain was greater because the man who killed Zachariah got

away with murder.

I know that some lawmakers in some groups insist there is

no such thing as an unborn victim, and that crimes like this

have only a single victim--but that is callous and it is

wrong. Please don't tell me that my son was not a real victim

of a real crime. We were both victims, but only I survived.

Zachariah's delivery date was to be February 13, 1992. But

on the night of February 8, my own husband brutally attacked

me in my home in Milwaukee. He held me against a couch by my

hair. He knew that I very much wanted my son. He punched me

very hard, twice, in the abdomen. Then he refused to call for

help, and prevented me from calling.

After about 15 minutes of my screaming in pain that I

needed help, he finally went to a bar and from there called

for help. I and Zachariah were rushed by ambulance to the

hospital, where Zachariah was delivered by emergency

Caesarean section. My son was dead. The physicians said he

had bled to death inside me because of blunt-force trauma.

My own injuries were life-threatening. I nearly died. I

spent three weeks in the hospital. During the time I was

struggling to survive, the legal authorities came and they

spoke to my sister. They told her something that she found

incredible. They told her that in the eyes of Wisconsin law,

nobody had died on the night of February 8.

Later this information was passed on to me. I was told that

in the eyes of the law, no murder had occurred. I was

devastated.

My life already seemed destroyed by the loss of my son. But

there was so much additional pain because the law was blind

to what had really happened. The law, which I had been raised

to believe was based on justice, was telling me that

Zachariah had not really been murdered.

Before his trial, my attacker said on a TV program that he

would never have hit me if he had thought he could be charged

with killing an unborn baby.

My family and I looked for somebody who would help us

reform the law so that no such injustice would occur in our

state in the future. We found only one group that was willing

to help, Wisconsin Right to Life. They never asked me my

opinion on abortion or on any other issue. They simply worked

with me, and other surviving family members of unborn

victims, to reform the law.

It took years. Again and again I told my story to state

lawmakers and pleaded with them, as I now plead with you, to

correct this injustice in our criminal justice system.

Finally, on June 16, 1998, Governor Tommy Thompson signed

the fetal homicide law. This means it will never again be

necessary for state authorities in Wisconsin to tell a

grieving mother, who has lost her baby, that nobody really

died. Under this law, an unborn child is recognized as a

legal crime victim, just like any other member of the human

race.

Of course, the state still has to prove anything beyond a

reasonable doubt to a jury, which is as it should be. But

when this bill was under consideration in the legislature, it

was actually shown to some of the former jury members in our

case, and they said if that had been the law at the time I

was attacked, they would have had no problem convicting my

attacker under it.

Next, I present a statement from Ms. Shiwona Pace of Arkansas. Ms. Pace suffered a horrible tragedy. She was severely beaten by several attackers, and as a direct result, her baby, whom she had named Heaven, died. Fortunately, Arkansas passed an unborn victims of violence law prior to the crime committed by Ms. Pace's assailants. Under the Feinstein amendment, Ms. Pace's assailants would not have even committed a crime, other than assault. Please listen to her plea to legislators.

My name is Shiwona Pace. On August 26, 1999, I was a 23-

year-old college student in Little Rock. I was the mother of

two--my five-year-old son, and an unborn baby girl named

Heaven Lashay.

August 26 was one day before my predicted full-term

delivery date. But that night, three men brutally murdered my

unborn baby daughter. I curled up face down on the floor,

crying, begging for them to stop beating me. But they did not

stop. One shouted, ``F*** you! Your baby is dying tonight!''

They choked me, punched me, hit me in the face with a gun.

They kicked me again and again in the abdomen. After about

thirty minutes, they left me sobbing there on the floor. At

the hospital, they found that Heaven had died in my womb. She

was a perfect baby, almost seven pounds.

The assailants were arrested. They had been hired by Erik

Bullock, my former boyfriend. He paid them $400 to kill

little Heaven Lashay.

Only a month before, a new state law took effect that

recognized unborn children as crime victims. If that law had

not been enacted, Erik Bullock would have been prosecuted

only for the assault on me, but not for the death of my baby.

But thanks to the state law, Bullock was also convicted for

his role in killing my baby. The men who attacked me are also

being prosecuted for what they did to Heaven.

I tell my story now for one reason: If this same attack

occurred today within a federal jurisdiction, the men who

killed my baby would be prosecuted only for assault. That is

why I urge members of Congress to support the Unborn Victims

of Violence Act, which would recognize unborn children as

victims under 68 federal laws dealing with crimes of

violence.

I was dismayed to learn that some members of Congress

oppose this bill, and insist on adoption of a radically

different [version] that says that such crimes only have one

victim--the pregnant women.

This is not the same as what would happen under the

Feinstein amendment. They are

wrong. On the night of August 26, 1999, there were two

victims. I lived--but my daughter died. I lost a child, and

my son lost the baby sister he had always wanted--but little

Heaven lost her life.

It seems to me that any congressman who votes for the

``one-victim'' amendment is really saying that nobody died

that night. And that is a lie.

Then we have the well-known case of Laci and Conner Peterson in California that has been spoken of previously. This is a statement from Sharon Rocha, Laci Peterson's mother, and Conner Peterson's grandmother. She has spoken out often on this issue. This is a California case that is well known and has probably done as much to bring this up today on this floor as anything else we have examined.

This is from Sharon Rocha's statement. I will read a portion of it:

As you know, Laci and Conner were cruelly murdered. In this

difficult time, my family is grateful that under California

law the murders of Laci and Conner can both be prosecuted.

But for the families of many other murder victims across the

country, there can be no such comfort. Federal law does not

recognize that these crimes have two victims.

So California law does recognize it.

When I became aware that Congresswoman Melissa Hart was

working on a bill to correct this problem, I contacted her to

express my support. I asked her to name it ``Laci and

Conner's Law'' in memory of my daughter and grandson. I am

grateful to Congresswoman Hart, the House leadership, and the

many congressmen, both Republicans and Democrats, who have

agreed to support this common-sense legislation. I thank

President Bush for his willingness to sign it into law.

The House of Representatives has shown their support for

this law by approving it twice thus far, but the Senate has

consistently failed to act. I call on every Senator to vote

for this bill, so that the law will do justice for families

of murder victims--families like mine. It is time for the

Senate to stand up for innocent victims like Conner.

These are real stories. They are tough stories. But they speak to the situation in this country today. This type of crime happens all too frequently. Unfortunately, there are more cases that we could mention.

I wanted to put a real face on this issue for my colleagues, and to ask them this simple question when they vote on the Feinstein substitute: How many victims are there? Is it one victim, or are there two? That is the real decision in regard to this amendment.

I urge a vote against the Feinstein amendment.

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

Madam President, I thank the Senator for yielding. I may take a few minutes, I say to the Senator from Kansas, to explain my relationship to this bill and why I am here today.

No. 1, I want to thank the leadership for allowing the bill to come to the floor. Senator Frist and Senator McConnell and our leadership team has worked hard with Senator Daschle to get an agreement so we could come to the floor and debate what I think is an important issue, and to allow Senator Feinstein to have her say about how we should craft this bill.

In July 1999, this bill was first introduced in the House. I was the author of the bill. Before I came to Congress, I spent some time in the Air Force. Senator DeWine has taken the cause up in the Senate since it was first introduced. I really appreciate all that Mike has done. He has been very sympathetic to what we are trying to do. He was leading the charge in the Senate as this bill was being debated and voted on in the House.

But prior to getting into politics, from 1982 to 1988, I served as a prosecutor and a defense attorney in the U.S. Air Force domestically and overseas. During that experience, I realized at the Federal level there was a gap in law.

We had a case involving a pregnant woman who was beaten up, and her child was lost, and she was almost killed. I looked into the idea of charging the offender with the damage done to the unborn child, and under the Uniform Code of Military Justice there was no way to do that. So I was sensitive to it from a prosecutor's point of view early on in my legal career.

When I got to Congress, there was an effort in some States to create unborn victims statutes, and I associated myself with that effort federally. A lot of pro-life people came over and were very supportive of what we are doing. That is true. Pro-life people generally like the idea of protecting unborn children whenever they can.

Pro-choice people are very sensitive to the fact that a woman should decide what to do with her body in an intimate situation like a pregnancy. I understand that debate clearly.

I am a pro-life person, so I have biased there. But having said that, there are pro-life people who hate this bill. It surprised me, but it is true, because in the bill, we wrote it in a way that abortion is not covered at all. As a matter of fact, we preserve, under the current law--under this bill--the right to have a legal abortion, and you cannot prosecute the mother under any circumstances.

There are cases out there where mothers are being prosecuted who abuse drugs and alcohol and do damage to their children. What I wanted to do was to focus on what I thought we all could agree on, to a large extent. The law in abortion and the politics of abortion really do not play well here because we are talking about criminal activity of a third party. I do not know why you would want to give a criminal any more breaks than you had to if they go around beating on pregnant women.

And people say: Well, don't they have to know if the woman is pregnant? No. Why? The law is really common sense. If you attack a woman of childbearing years, you do so at your own peril. If you push somebody, you do not know if they have a severe medical condition. You are liable for the consequences of your actions.

There are plenty of cases that say, if you attack a woman of childbearing years, you do not have to have actual knowledge. You are responsible for the consequences of your illegal act.

In a poll, when people were asked, if a violent, physical attack on a pregnant woman leads to the death of her unborn child, do you think prosecutors should be able to charge the attacker with murder for killing the fetus, 79 percent said yes; 69 percent of pro-choice people, in that poll, said yes.

Why would a pro-choice person support this legislation? It passed three times in the House. The first time we had it up for a vote was September 30, 1999, I believe. Madam President, 254 folks voted for the bill in the House, as I recall. I assure everyone listening to my voice today, there are not 254 pro-life people in the House. Madam President, 52 Democrats have voted for this bill.

The parties tend to split on the issue of abortion, with the Democratic Party being more pro-choice and the Republican Party being more pro-life. But we had Democratic support, and we had pro-choice people supporting this idea that when it comes to criminal activity, we are going to define the unborn in terms that make it hard on the criminal--not hard on the mother.

You can never prosecute a woman for anything she does to her child, no matter how much you would like to, under this bill. I did not want to get into that debate. You can never ever prosecute anybody for receiving medical treatment related to their pregnancy or lawful abortion.

For over 30 years, in the State of California, two things have coexisted: the Roe v. Wade rights of a woman and a statute that will allow you to do what is happening in California today--prosecute a person for doing damage to the mother and the unborn child, such as the Laci Peterson case.

This has been a long journey. This July will be the fifth anniversary of the time that I introduced this bill. Back in 1999, I remember saying on the floor of the House there will be a case where a pregnant woman is brutalized and she loses her child and it will be front-page news.

The reason I said that then is, having been a prosecutor and a defense attorney, I understand the following: There are a lot of good people in this world, but there are some mean people, too. This happens more than you would ever want to believe. The No. 1 cause of death among pregnant women in the District of Columbia is murder. As much as we would like to believe otherwise, pregnant women have things come their way because of their pregnancy that shocks the conscience.

In Arkansas, there are three people sitting on death row today because they were hired by the boyfriend, who didn't want to pay child support, to kidnap his girlfriend, who wanted to

have the child, took her off to a remote area and beat her within an inch of her life with the express purpose of killing the child. And when she was on the floor, she begged for two things: Her own life and her baby's life. Those people under Arkansas law were charged with two crimes, making them eligible for the death penalty. They deserve to be.

Under this bill, you cannot get the death penalty. The reason I chose not to include the death penalty is, I did not want to get into the death penalty debate because people of goodwill and good reasoning may disagree with the State imposing that punishment. The Senator from California cares as much about pregnant women as anybody here. This is not about who cares about women and who is trying to do this or that. Her amendment may not be written the way she would like. I would oppose it, if it was changed.

It happens in America more times than you would ever believe that pregnant women are the victim of violent assault and their children get killed or severely injured.

That concept can and does exist with the idea that a woman, early on in the pregnancy, can choose whether to carry that child. These are two concepts the law recognizes that exist side by side.

Why do 84 percent of the people believe a criminal should be prosecuted twice, not once? Because it really does violate common decency. If a woman chooses to have a baby and she loses her baby because of a violent act, most of us, a large percentage of us, want to whack the person who did it as hard as we can. And we don't want to get into the debate about abortion. We want to make sure the prosecutor has the tools to bring about the most severe and just verdict possible.

This bill excludes abortion. It excludes the death penalty for political reasons and legal reasons. Pro-life people have criticized me because in this bill, in their opinion, I am legalizing abortion. This bill doesn't legalize abortion. This bill doesn't ban abortion. This bill says: If you are a criminal and you attack a pregnant woman and you hurt her kid, you will get the full force of the law.

What is going on in California? In 1999, when I said there will be a woman out there who suffers brutally and loses her child and we will all know about it because it will be front page news, I never dreamed it would happen so quickly. I never dreamed it would be so vicious. The authorities investigating the Laci Peterson crime have two pieces of evidence to offer the jury: The decomposed body of the mother and the decomposed unborn child late in the pregnancy. It is important the jury know about both. It is important the criminal be held accountable for both. We will debate abortion another day.

Sixteen States define life under the same legal terms I chose when we wrote this bill. That is as to the criminal world, if the pregnancy comes to an end and the unborn child's right to develop comes to an end because of third-party criminal activity, we are going to hold you legally responsible at the earliest onset of pregnancy. The Roe v. Wade standard makes no sense. Why give a criminal a benefit of the legitimate debate of abortion?

Thirteen States define it in stages. California, I think by law, defines the unborn victim statute at the sixth week of pregnancy. Some States, one or two, have the term ``viability.'' There is a sliding scale. But the dominant way to define this in State law is the way we have chosen to define it in this bill. This chart illustrates how the States break out.

There is another situation I would ask you to think about. Let's say there is a woman on death row. She is pregnant for whatever reason. How many people would let the execution go forward knowing the woman is pregnant? Think about that. What good would it do to allow the execution to go forward if you knew the woman was pregnant? Would you wait?

Here is what I suggest to you, if any State or the Federal Government decided to impose the death penalty on a woman who was pregnant during any stage of the pregnancy, there would be a riot in the street--among pro-choice people, too, because what good would it do at any stage of the pregnancy to have the State kill the kid? You are not enhancing Roe v. Wade. You are not advancing the abortion debate. You are doing something you don't need to do.

The definition that was used in the Innocent Child Protection Act of 2000, which I was involved in drafting, is the same definition that is in this bill about the unborn child. It passed 417 to nothing. To me, that makes perfect sense. Four hundred seventeen pro-life people do not exist in the House of Representatives. But when faced with the question, should the State wait if a woman is pregnant, even at the earliest stages of pregnancy, 417 people said yes.

The reason I mention this to you is, when it comes time to prosecute people who unlawfully attack a woman at the earliest stage of pregnancy, why should they get a pass? What good have you done? It does not change the abortion debate. Roe v. Wade rights still exist. All you have done is allow someone to interrupt another person's life, take something of value, and they get a pass because you are mixing concepts that don't need to be mixed. That is why over 50 pro-choice people voted for this bill in the House.

That is why if we ever get to final passage, we are going to have a bipartisan coming together of pro-life and pro-choice people to say one thing loud and clear: If you attack a woman of childbearing years where Federal law applies, you do so at your peril, and you are going to suffer the full consequences of your action. And the full consequences of that action could be the loss of the child and the loss of the mother or a combination thereof.

Why not sentence enhancement? I think there is a reason under the law that no State has gone down this road. Sentence enhancement would say the following: You get a stiffer penalty if the woman is pregnant, but you don't talk about the consequences in terms of the victim's life. That is an artificial distinction that I think denies justice.

This was a statement by Kent Willis, executive director of ACLU, and I disagree with this statement:

That baby was not a murder victim.

He was talking about the Laci Peterson case, the son Connor. I think Connor was a murder victim. The point I guess I am trying to make is that when people talk about what happens to them, the law, wherever it can, should address the full range of what really happened to them.

There is another case you don't know about because it didn't get nearly the publicity, but it is just as real. It is a good example of why we need this statute.

Michael Lenz and his wife were expecting their first child. She worked in the Federal Building in Oklahoma City. She was in the midstages of her pregnancy. She went to work early the day of the bombing to show an ultrasound to her colleagues of their baby. That was going on at the moment the bomb goes off. She was killed. Michael Lenz III was killed. They had already named their little baby boy.

The father came before my committee when I was in the House to testify for this bill. He said: I am no expert on abortion, but here is what happened to my family. My wife was killed, and at the same moment I lost my son, Michael Lenz III.

The reason they lost their son is not because of Roe v. Wade rights; it was because of a third party crazy man, a criminal, who destroyed many lives that day. When you look at the victims of the Oklahoma City bombing case, when it came time in Federal court, you don't find a place for Michael Lenz III. If this bill had been law, there would have been 22 people, not 21 people, that would have been before the court. I cannot say it any better than that.

In terms of Michael Lenz and all the other victims who testified in support of this legislation, sentence enhancement doesn't speak to what happened to them. From a prosecutor's point of view, it makes all the difference in the world to have two charges facing the accused versus one. It gives you more leverage than you could ever dream of. Ladies and gentlemen, in cases like this, it is the right thing to do.

I yield the floor.

Mr. President, how much time remains?

Will the Chair notify me when I have used 4 minutes?

Mr. President, I wish to speak to how the bill was drafted and why.

Senator DeWine articulated it well. You have to prove the pregnancy, and we defined the pregnancy like 16 other States. That is the dominant way of defining the child for the purpose of this statute. Thirteen States have a different view of it. In California, I think the law is at 6 weeks. If you can prove the child is beyond 6 weeks--not viable but beyond 6 weeks--the law kicks in.

In 1999, when we first drafted this statute--Senator DeWine was carrying it in the Senate, I carried it in the House, and we are finally coming together to have a vote--it never made sense to me, if you believe this is not about abortion--because it is not; we wrote it so it is not--why would you give a criminal a break who destroyed a family's life in two ways, not one?

You are not going to prosecute medical researchers under this statute. You have to hurt the mother. This is not about medical research. It is not about abortion. It is about criminals who attack pregnant women.

Why would you give the criminal a break at 3 weeks? You could prove the baby has been around for 3 weeks. The criminal just totally gets away with it.

The Feinstein amendment--as much as I like Senator Feinstein, and she is truly one of my favorites--nobody goes this way because this is not the way you would want to go if you are prosecuting criminals. You do not want to ignore the reality of what happened to this family and to these victims. This is not about abortion. If it was abortion law, you would not have any prosecutions except until the late terms of the abortion. Why would you let a criminal do that? This is not about a mother's right to choose. Under the statute, you cannot prosecute the woman at any time. You cannot do anything about abortion rights because the statute protects lawful abortions.

For 30-something years in California, they had the ability to prosecute criminals who attacked pregnant women and have Roe v. Wade rights. Look in the phonebook anyplace in California and you will find people who will provide a lawful abortion. Look at the criminal law and you will find a statute that allows people to be put in jail who attack a pregnant woman and do damage to her unborn child at the 6-week period.

My point is, when criminals attack pregnant women, don't play this game of the abortion debate. Don't bring it over here. The reason we voted 417 to 0 in the House was to prevent an execution of a pregnant woman at the earliest stages of pregnancy. It does no good to kill the chance of that child to grow to render justice to the mother.

With a vote of 417 to 0, the House adopted the same definition as this statute because the purpose of that statute was to prevent the State from executing a woman who we know to be pregnant at the early stages of a pregnancy. The reason being, it does no good. It does not advance Roe v. Wade. It just does something you do not need to do to render justice. You do need the ability to bring two prosecutions at the earliest stages of pregnancy to render justice for those who choose to violently assault pregnant women. No medical researcher is going to be harmed. We will have the stem cell debate. The Roe v. Wade rights that exist today are not going to be eroded. They have existed in conjunction with these statutes for years and years, and that debate will go on for years and years. But here is what is likely to happen.

There will be, unfortunately, human nature being what it is, another assault against a pregnant woman where Federal jurisdiction would exist if we have this statute. It is going to happen because people are mean, people are cruel, and they need to be dealt with when they are mean and cruel.

The Senate enhancement option has been rejected by everybody who looked at this because it does not render justice. It creates a legal fiction that is not necessary and destroys the whole purpose of this statute.

I mentioned the Arkansas case. Three teenagers were prosecuted for beating up a pregnant woman for the purpose of making sure one of them did not have to pay child support. They are not on death row. I misspoke. One of them received 40 years, one received life imprisonment. It was a capital statute, but it was not a death penalty case. I was wrong. I apologize.

Five more seconds.

The Laci Peterson case is a death penalty case because there are two victims.

All we are saying is Federal law should address reality. When Michael Lenz lost his wife in the Oklahoma City bombing incident, he also lost his son, Michael Lenz III. All I am asking for is that justice be rendered in cases such as that. When somebody chooses to destroy a family--the mother and the unborn child--let them pay a severe price, and let's debate abortion another day, another time, and not interject it into a statute where it should not be interjected.

I yield the floor.