Naturalization and Family Protection for Military Members Act of 2003

Mr. Speaker, pursuant to House Resolution 257, I call up the bill (H.R. 760) to prohibit the procedure commonly known as partial-birth abortion, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 760.

Mr. Speaker, I yield myself 6 minutes.

Mr. Speaker, H.R. 760, the Partial-Birth Abortion Ban Act of 2003, would prohibit the gruesome and inhumane procedure of partial-birth abortion that, unfortunately, we are all too familiar with. An abortionist who violates this ban would be subject to fines, a maximum of 2 years' imprisonment, or both. The bill includes an exception for those situations in which a partial-birth abortion is deemed necessary to save the life of the mother. An identical bill, H.R. 4965, was approved by this Chamber last summer by a 274-151 vote, but the then- Democratic leadership in the other body chose not to bring it up for a vote.

A moral, medical, and ethical consensus exists that partial-birth abortion is an unsafe and inhumane procedure that is never medically necessary and should be prohibited. Contrary to the claims of advocates of this gruesome procedure, the procedure remains an untested, unproven, and potentially dangerous procedure that has never been embraced by the medical profession. Unfortunately, two Federal bans that were passed by prior Republican Congresses and sent to President Clinton's desk were promptly vetoed.

In June 2000, the United States Supreme Court struck down Nebraska's partial-birth abortion ban, which was similar, but not identical, to bans previously passed by Congress. The Court concluded that Nebraska's ban did not clearly distinguish the prohibited procedure from the other more commonly performed second trimester abortion procedures. The Court also held, on the basis of highly disputed factual findings of the district court, that the law was required to include an exception for partial-birth abortions deemed necessary to preserve the health of a woman.

H.R. 760's new definition of partial-birth abortion addresses the Court's first concern by clearly and unambiguously defining the prohibited procedure. The bill also addresses the Court's second objection to the Nebraska law by including extensive congressional findings based upon medical evidence received in a series of legislative hearings, that, contrary to the factual findings of the district court in Stenberg, a partial-birth abortion is never medically necessary to preserve a woman's health, poses serious risk to a woman's health, and in fact is below the requisite standard of medical care.

H.R. 760's lack of a health exception is based upon Congress's factual determination that partial-birth abortion is a dangerous procedure that does not serve the health of any woman. The Supreme Court has a long history, particularly in the area of civil rights, of deferring to Congress's factual conclusions. In doing so, the Court has recognized that Congress's institutional structure makes it better suited than the judiciary to assess facts upon which it will make policy determinations.

As Justice Rehnquist has stated, the Court must be, ``particularly careful not to substitute its judgment of what is desirable for that of Congress, or its own evaluation of evidence for a reasonable evaluation by the legislative branch.'' Thus in Katzenback v. Morgan, while addressing section 4(e) of the Voting Rights Act of 1965, the Court deferred to Congress's factual determination that section 4(e) would assist the Puerto Rican community in ``gaining nondiscriminatory treatment in public services,'' stating: ``It is not for us to review the congressional resolution'' of the various issues it had before it to consider. Rather, ``It is enough that we are able to perceive a basis upon which the Congress might resolve the conflict as it did.''

Similarly in Fullilove v. Klutznick, when reviewing the minority business enterprise provision of the Public Works Employment Act of 1977, the Court repeatedly cited and deferred to the legislative record and factual conclusions of Congress to uphold the provisions as an appropriate exercise of congressional authority.

In addition to the health risks to women who undergo the partial- birth abortion procedure, it is particularly brutal and inhumane to the nearly born infant as virtually all the infants upon whom this procedure is performed are alive and feel excruciating pain. Furthermore, a child upon whom a partial-birth abortion is being performed will not be significantly affected by medication administered to the mother during the performance of the procedure.

As credible testimony received by the Subcommittee on the Constitution confirms, ``Current methods for providing maternal anesthesia during partial-birth abortions are unlikely to prevent the experience of pain and stress'' that the child will feel during the procedure. Thus, claims that a child is almost certain to be either dead or unconscious and near death prior to the commencement of the partial-birth abortion are unsubstantiated.

H.R. 760 enjoys overwhelming support from members of both parties precisely because of the barbaric nature of this procedure and the dangers it poses to women who undergo it. Additionally, the American Medical Association has recognized that partial-birth abortions are ``ethically different from other destructive abortion techniques because the fetus, normally 20 weeks or longer in gestation, is killed out of the womb.'' Thus, the ``partial birth'' gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body.

Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns but all vulnerable and innocent human life. Thus, Congress has a compelling interest in acting, indeed it must, to prohibit this inhumane procedure.

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

Mr. Speaker, I yield myself 1 minute.

Mr. Speaker, the gentleman from Michigan is right. The Supreme Court is not required to accept congressional findings. In the cases that I have cited, they have given great deference to congressional findings. Here in the Stenberg case, the Supreme Court accepted the findings of the district court. We believe the district court's findings were in error. That is why there are extensive findings contained in H.R. 760 which we hope are substantiated by extensive hearing records and that the Supreme Court will give the same type of deference that it has done in the past in civil rights and employment cases.

Mr. Speaker, I yield 5 minutes to the gentleman from Ohio (Mr. Chabot).

Mr. Speaker, I yield 1 minute to the gentleman from Virginia (Mr. Forbes).

Mr. Speaker, I yield 2 minutes to the gentleman from New Jersey (Mr. Smith).

Mr. Speaker, I yield 2 minutes to the gentleman from Michigan (Mr. Hoekstra).

Mr. Speaker, I yield myself 1 minute.

Mr. Speaker, we have heard from the people who oppose this legislation that it infringes on Roe v. Wade. Roe v. Wade very clearly gives Congress and the several States the right to prohibit abortions on viable babies.

There is one State in the Union, Kansas, that collects statistics on partial-birth abortions. Let me quote from page 17 of the committee report: ``The experiences of the State of Kansas, the only State to require physicians to report the performance of partial-birth abortions, are instructive on this point. Under its mandatory reporting scheme for partial-birth abortions, in 1998, 58 partial-birth abortions were performed, all of which were on viable babies and all of which were necessary to prevent a substantial or irreversible impairment of a major body function, which was the impairment of the patient's mental function.

``Similarly, in 1990, 182 such procedures were performed,'' all for the same reason, and again, all on viable babies.

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

Mr. Speaker, I yield 1 minute to the gentleman from Pennsylvania (Mr. Pitts).

Mr. Speaker, I yield 1 minute to the gentleman from New Mexico (Mr. Pearce).

Mr. Speaker, I yield 2 minutes to the gentleman from Ohio (Mr. Chabot).

Mr. Speaker, I yield 2 minutes to the gentleman from Nebraska (Mr. Terry) on this bipartisan bill.

Mr. Speaker, I yield myself 30 seconds.

Mr. Speaker, the gentlewoman from Texas (Ms. Jackson-Lee) is wrong. This bill will save lives. It will save the lives of viable babies who are subjected to this brutal and inhumane treatment. The gentlewoman from Texas (Ms. Jackson-Lee) was not listening when I quoted the Kansas report that said of the partial-birth abortions that were reported under their State law, most of them were on viable fetuses.

Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Sessions).

Mr. Speaker, I am prepared to close general debate if the gentleman from New York (Mr. Nadler) wants to use the rest of his time.

Mr. Speaker, I yield myself the balance of the time.

Mr. Speaker, the major argument that gets to the substance of this bill that the opponents have stated in the last hour is that the findings that Congress makes that are contained in H.R. 760 the Supreme Court will just completely ignore.

I will be the first to concede that the Supreme Court does not have to accept congressional findings, nor does the Supreme Court have to accept findings that have been made by lower courts either that reach their own conclusions; but there is a string of cases in

the last 20 years or so that have indicated that the Supreme Court will defer to congressional fact finding, and they have been highly and historically deferential to Congress's factual determination, regardless of the legal authority upon which Congress has sought to legislate, as the following case quotes demonstrate.

First, ``The fact that the Court is not exercising a primary judgment but sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government compels the court to be particularly careful not to substitute our judgment of what is desirable for that of Congress, or our own evaluation of evidence for a reasonable evaluation by the legislative branch.'' That is Rostker v. Goldberg, 1981.

Second, ``It is for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations. It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.'' Katzenbach v. Morgan, 1966.

Third, ``Here we pass on a considered decision of Congress and the President. We are bound to approach our task with appropriate deference to the Congress, a co-equal branch.'' Fullilove v. Klutznick, 1980.

Fourth, ``The Supreme Court 'must afford great weight to the decisions of Congress. The judgment of the legislative branch cannot be ignored or undervalued. When the Court faces a complex problem with many hard questions and few easy answers, it does well to pay careful attention to how the other branches of government have addressed the same problem.''' Columbia Broadcasting System v. The Democratic National Committee, 1973.

Fifth, ``Congress is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon an issue as complex and dynamic as that presented here.'' Turner Broadcasting System v.

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

Mr. Speaker, I rise in opposition to the Greenwood substitute and claim the time in opposition.

Mr. Speaker, I yield myself 5 minutes.

Mr. Speaker, this substitute is identical to H.R. 809, and that bill is a phony ban which would grant a giant loophole that allows abortionists to perform partial-birth and third-trimester abortions at will. The substitute, which would prohibit the performance of an abortion after the unborn infant became viable, would not prohibit any abortion, from the substitute, ``if, in the medical judgment of the attending physician, the abortion is necessary to preserve the life of the woman or to avert serious adverse health consequences to the woman.''

The proponents of this substitute admit that their measure would allow any abortion at any stage of pregnancy if the mother's mental health is at risk. Thus, by its own term, this bill would not prohibit partial-birth abortions, nor would it prohibit late-term abortions because it grants the abortionist, who has a financial interest in performing as many abortions as possible, unbridled discretion to determine whether a partial-birth or third-trimester abortion may be performed.

Abortionists have demonstrated that they can and will justify any abortion on the grounds that it, in the judgment of the attending physician, is necessary to avert serious adverse health consequences to the woman. For example, Dr. Warren Hern of Colorado, the author of the standard textbook on abortion procedures who also performs many third- trimester abortions, has stated, ``I will certify that any pregnancy is a threat to a woman's life and could cause grievous injury to her physical health.'' This is a man who has a financial interest in performing the abortion, and this is the physician who under the Greenwood substitute would be able to certify that the loophole is proper and the abortion can be performed.

I will quote from Dr. Hern again: ``I will certify that any pregnancy is a threat to a woman's life and could cause grievous injury to her physical health.''

The substitute sponsors have stated that even psychological trauma caused by the pregnancy could justify an abortion, including a partial- birth abortion at any stage of pregnancy, including the third trimester.

The substitute would also have no effect on most partial-birth abortions because the bill only prohibits abortions after the fetus is viable in the vast majority of partial-birth abortions are performed on babies 4\1/2\ to 5\1/2\ months in development. Before it can be proven beyond a reasonable doubt that a given baby is viable, remember we are dealing with criminal statutes here; and prosecution, if this bill becomes law, the substitute becomes law, must prove that the fetus is viable in order for the ban to kick in.

The lung development of babies at this stage of pregnancy is such that most of them cannot survive if delivered from the mother's womb prematurely. Many of them can survive, but the percentages are such estimates of 39 percent of babies born at 23 weeks that it would be impossible for the government to prove beyond a reasonable doubt that any given one of these babies would have survived in a given case.

Given the substitute's failure to define the term ``viable,'' it would not be sufficient to show that the baby had a one in three or one in two or even a three in four chance of survival. Unless the baby was in the seventh month of pregnancy or later, reasonable doubt would remain as to whether that particular baby would have survived outside the womb.

Furthermore, the notion that viability is a prerequisite for giving any legal protection to a child is misguided. Premature infants who are born before the third trimester with little or no chance of survival are fully entitled to the protections of law while they are alive. A person could not, for example, just walk into a neonatal intensive care unit and kill an infant who was born 23 weeks into the pregnancy and is in an incubator struggling to survive. That child has only a 39 percent chance of surviving, but his ultimate viability has no bearing on whether or not he is entitled to the protections of the law.

In the same way, partially born children with little or no chance of survival outside the womb are entitled to the protections of law. Viability is simply not a prerequisite for legal protection of born or partially born children.

For these reasons, I urge my colleagues to vote against the substitute.

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

Mr. Speaker, I yield 4 minutes to the gentleman from Illinois (Mr. Hyde).

(Mr. HYDE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 2 minutes to the gentlewoman from Pennsylvania (Ms. Hart).

Mr. Speaker, I yield 1 minute to the gentleman from Illinois (Mr. Hyde), whose name was taken in vain.

Mr. Speaker, the example the gentlewoman from Connecticut (Mrs. Johnson) gave would have fallen under the exception that is contained in H.R. 760. The subsection which is the ban does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

The real-life story that the gentlewoman from Connecticut's husband faced would have fallen under the exception and would have allowed a partial-birth abortion. That is why this bill should pass and the substitute should be defeated.

Mr. Speaker, I yield 3 minutes to the gentleman from Iowa (Mr. King).

(Mr. KING of Iowa asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 2 minutes to the gentleman from Georgia (Mr. Gingrey) who knows more about delivering babies than practically all of us.

Mr. Speaker, I yield 3 minutes to the gentleman from Arizona (Mr. Renzi).

Mr. Speaker, I yield 2 minutes to the gentlewoman from Virginia (Mrs. Jo Ann Davis).

Mr. Speaker, I yield 1 minute to the gentleman from Louisiana (Mr. Vitter).

Mr. Speaker, I yield the balance of my time to the gentleman from Texas (Mr. DeLay), the majority leader.

Mr. Speaker, I rise in opposition to the motion.

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

This motion to recommit should be rejected for several reasons. The overwhelming weight of evidence compiled in a series of hearings indicates that partial-birth abortions are never necessary to preserve the health of a mother and, in fact, pose substantial health risks to women undergoing the procedure.

No controlled studies of partial-birth abortions have been conducted nor have any comparative studies been conducted to demonstrate its safety and efficacy as compared to other abortion methods. There have been no articles published in peer review journals that establish that partial-birth abortions are superior in any way to establish abortion procedures.

Furthermore, experience indicates that partial-birth abortions are not performed to preserve the health of a woman. The late Dr. James McMahon, developed this method and performed thousands of them, some as late as the ninth month. In 1995, Dr. McMahon submitted to the Committee on the Judiciary a graph and explanation that explicitly showed that he aborted healthy babies even in the third trimester which begins after the 26th week of pregnancy. His own graph showed, for example, that at 29 or 30 weeks one-fourth of the aborted babies had no flaw.

Furthermore, leading proponents of partial-birth abortion acknowledge that it could pose additional health risks because, among other things, the procedure requires a high degree of surgical skill to pierce the infant's skull with a sharp instrument in a blind procedure.

Dr. Warren Hern testified that he had very serious reservations about this procedure and that he could not imagine a circumstance in which this procedure would be safest. Although he was opposed to legislation banning partial-birth abortion, he also stated, ``You really can't defend it. I'm not going to tell somebody else they should not do this procedure, but I'm not going to do it.'' He also stated, ``I would dispute any statement that this is the safest procedure to use.''

The procedure also poses the following additional health risk to the woman: an increase in the woman's risk of suffering from cervical incompetence, a result of cervical dilation making it difficult or impossible for a woman to successfully carry a subsequent pregnancy to term; an increased risk of uterine rupture, abruption, amniotic fluid embolus, and trauma to the uterus as a result of converting the child to a footling breech position.

Finally, a health exception, no matter how narrowly defined, gives the abortionist unfettered discretion in determining when a partial- birth abortion may be performed, and abortionists have demonstrated they can justify any abortion on this ground. Again, Dr. Warren Hern, ``I will certify that any pregnancy is a threat to a woman's life and could cause grievous injury to her physical health.'' I repeat, ``I will certify that any pregnancy is a threat to a woman's life and could cause grievous injury to her physical health.''

It is clear then that a law that includes such an exception would not ban a single-birth abortion; and for that reason, I would urge a ``no'' vote on the motion to recommit.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, pursuant to House Resolution 257, I call up from the Speaker's table the Senate bill (S. 3) to prohibit the procedure commonly known as partial-birth abortion, and ask for its immediate consideration.

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

Mr. Speaker, this is a great day today. Mr. Speaker, I might add my support to H. Con. Res. 177, that commends the troops for the Iraqi operation, and H. Res. 201, that commends the business support of the troops, because this is the day when we further acknowledge that there is no divide amongst Americans or amongst those of us who are Members of the United States Congress in commemorating, celebrating and appreciating the valid service of the United States troops.

I am very pleased to join the chairman of the Committee on the Judiciary in full support of H.R. 1954, the Armed Forces Naturalization Act of 2003.

I do want to thank the gentleman from Wisconsin (Mr. Sensenbrenner), as full committee chairman, and, as well, the chairman of the subcommittee, the gentleman from Indiana (Mr. Hostettler) for working with the ranking member of the full committee, the gentleman from Michigan (Mr. Conyers) and myself as the ranking member of the subcommittee, in what is an important legislative action that we are joined in by any number of my colleagues who have done an outstanding job in recognizing this very important challenge.

This work is a culmination of a bipartisan effort to improve the military naturalization provisions of the Immigration and Nationality Act.

The gentleman from Wisconsin (Mr. Sensenbrenner) was quick to respond and sensitive to the need of moving this legislation along very quickly. I am proud to be an original cosponsor of this bill that was later introduced by the chairman, but more importantly, to be working very closely on the drafting of these issues within the bill and to make the bill as responsive as possible, along with the gentleman from Michigan (Mr. Conyers), to the issues of concern to those brave and valiant individuals who serve us and create an opportunity for our freedom.

Mr. Speaker, I also want to thank the Members who cooperated with this project by combining their individual naturalization bills to produce a comprehensive Armed Forces Naturalization Act. Certainly the gentleman from Washington (Mr. Hastings), the gentleman from Texas (Mr. Frost), the gentleman from North Carolina (Mr. Jones), the gentlewoman from California (Ms. Solis), the gentleman from California (Mr. Issa), and the gentleman from illinois (Mr. Gutierrez), all of them had brilliant ideas, brilliant piece of legislation focusing on very important aspects of this work. We could not have done this legislation without them.

Marine Corporal Jose Angel Garibay and Lance Corporal Jose Gutierrez were among the 129 men and women killed during the Iraqi war. Those numbers obviously have increased. When they volunteered for military service and fought in this war, they were immigrants with resident status and not citizens of the United States.

Jose A. Gutierrez was an orphan from Guatemala when he hitchhiked on railcars into Mexico in 1997. He entered the United States illegally. Later, however, he obtained permanent resident status. And according to Martha Espinosa, one of his former foster mothers, he once told her, ``I was born the day I arrived in this county.''

Garibay was a native of Jalisco, Mexico, whose family moved to the United States when he was a baby. He joined the Marines 3 years ago. ``He probably thought he was more an American than a Mexican,'' said his sister. With the help of their families and fellow Marines, these brave young Americans unfortunately lost their lives in the war in Iraq; and so we would hope that as we move this legislation forward, these brave young Marines will also obtain their citizenship posthumously.

Service in the United States military, particularly in times of conflict, is the ultimate act of patriotism. Our immigration laws traditionally have allowed for expedited citizenship consideration for noncitizen members of the United States military even in peacetime. For instance, section 328 of the INA allows noncitizen members of the military to become citizens after 3 years of peacetime service instead of the usual 5-year wait required of nonmilitary applicants.

Section 329 of the INA allows noncitizens to receive immediate naturalization eligibility through their active duty service in the Armed Forces during periods of military hostilities.

Under this section of the INA, 143,000 noncitizen military participants in World Wars I and II, and 31,000 members of the United States military who fought during the Korean War became naturalized American citizens. More than 100,000 members of the United States became citizens following Vietnam and the Persian Gulf War collectively.

The important point, Mr. Speaker, is to realize that this Nation continues to be a Nation built upon immigrants and their desire to be part of this great democracy. And it also shows how much we are united, united in our war against terrorism, and that immigration does not equate to terrorism.

The Armed Forces Naturalization Act of 2003 would reduce the time that a peacetime member of the Armed Forces has to serve for naturalization eligibility purposes from 3 years to a single year. The fees normally charged for naturalization will be waived for members of the Armed Forces.

Moreover, effort will be made to provide locations overseas at which soldiers will be able to take the naturalization examination, the interviews and other steps in the naturalization process. If you can imagine, before this legislation and the vision of the gentleman from Texas (Mr. Frost), these persons had to come back from their posts, and that was very, very difficult, to proceed to naturalize. This will avoid the expense to that soldier serving overseas of paying his or her transportation to and from the United States to complete the naturalization process.

The current law provides for posthumous citizenship when a soldier has been killed during a period that has been declared a time of military hostilities, but the current law explicitly denies derivative immigrant benefits for the soldier's spouse and children. This bill will correct that inequity by allowing the spouse, children and parents of such a soldier to self-petition for immediate relative status on the basis of the soldier's posthumous citizenship.

The bill as offered at the mark-up, however, did not extend similar benefits to the case in which the soldier's surviving spouse is already a lawful permanent resident. This omission was corrected by an amendment I offered at the mark-up. Ordinarily, a lawful permanent resident must be married to a United States citizen for a period of 3 years before becoming eligible for naturalization as a spouse of a United States citizen. Section 319(d) of the INA waives that requirement when a lawful permanent resident's citizen spouse dies in the Armed Forces.

The pertinent part section of 319(d) reads as follows:

``Any person who is a surviving spouse of a United States citizen, whose citizen spouse dies during a period of honorable service in the Armed Forces of the United States and who was living in marital union with the citizen spouse at the time of his death, may be naturalized upon compliance with all the requirements of this title except that no prior residence or specified physical presence within the United States shall be required.''

My amendment provides the same waiver in the case of the lawful permanent resident spouse whose soldier spouse receives citizenship posthumously.

The only difference between the two situations is that the one permitted under current law involves a soldier who received his citizenship before he died; whereas in the second situation, the citizenship is received posthumously. In both cases, the soldier is a citizen who is killed during a period

of honorable military service. I am pleased that the committee voted to approve that amendment.

There are two instances of concern that I have. One amendment provides that anyone naturalized under the bill's 1 year of service in the Armed Forces measure can have such citizenship revoked if the individual is subsequently separated from the military under other than honorable conditions. No such provision currently exists for revoking the citizenship of Armed Forces personnel who obtain naturalization pursuant to peacetime service. I am concerned about that and hope we can work through conference on that issue.

I am also concerned about an amendment that modifies the provisions in the bill that are intended to grant immigration benefits to the parents of soldiers who receive citizenship posthumously. The original provisions in the bill make the parents eligible for immediate relative status without imposing any additional eligibility requirements. Immediate relative status would permit them to obtain an immigrant visa without having to wait for a visa number.

The amendment that was in this bill limits the benefit to parents who are lawfully authorized to be present in the United States on the date of the soldier's death. Aside from unusual situations, such as when the parents happen to be college students or have visas for temporary employment in the United States as computer experts, et cetera, this is a problem because we can imagine problems of where a parent might be on any given day when the son or daughter dies, whether or not they are out of the country; and I would hope that we could make a correction as we move forward with this legislation.

I do want to acknowledge that this is an important bill that has come about through bipartisan efforts, and I do want to acknowledge that there are problems that we want to work through; and clearly, we want to make sure that the problems that we face will be ones that can be corrected.

I believe, Mr. Speaker, that we worked in a bipartisan way for the betterment and good of these heroes, valiant heroes; and I would ask that my colleagues support this legislation.

Mr. Speaker, the ``Armed Forces Naturalization Act of 2003'' is the culmination of a bi-partisan effort to improve the military naturalization provisions of the Immigration and Nationality Act (INA). I am proud to be an original cosponsor of this bill, which was introduced by Representative F. James Sensenbrenner, the Chairman of the Committee on the Judiciary. I want to thank Chairman Sensenbrenner and the Ranking Member of the Judiciary Committee, Representative John Conyers, for their leadership. I also want to thank the members who cooperated with this project by combining their individual naturalization bills to produce the comprehensive Armed Forces Naturalization Act, Representatives Doc Hastings, Martin Frost, Walter Jones, Hilda Solis, Darrell Issa, and Luis Gutierrez.

Marine Corporal Jose Angel Garibay and Lance Corporal Jose Gutierrez were among the 129 men and women killed during the Iraqi war. When they volunteered for military service and fought in this war, they were immigrants with resident status, not citizens of the United States.

Jose A. Gutierrez was an orphan from Guatemala when he hitchhiked on railcars into Mexico in 1997. He entered the United States illegally. Later, however, he obtained permanent resident status. According to Martha Espinosa, one of his former foster mothers, ``He once told me, ` was born the day I arrived in this country.' '' Garibay was a native of Jalisco, Mexico, whose family moved to the United States when he was a baby. He joined the Marines three years ago. ``He probably thought he was more an American than a Mexican,'' said Garibay's sister Crystal. With the help of their families and fellow Marines, Garibay and Gutierrez became American citizens posthumously.

Service in the United States military, particularly in times of conflict, is the ultimate act of patriotism. Our immigration laws traditionally have allowed for expedited citizenship consideration for non-citizen members of the United States military, even in peacetime. For instance, Section 328 of the INA allows non-citizen members of the military to become citizens after 3 years of peacetime service, instead of the usual 5-year wait required of non-military applicants.

Section 329 of INA allows non-citizens to receive immediate naturalization eligibility through their active duty service in the Armed Forces during periods of military hostilities. Under this Section of the INA, 143,000 non-citizen military participants in World Wars I and II, and 31,000 members of the United States military who fought during the Korean War, became naturalized American citizens. More than 100,000 members of the United States military became citizens following Vietnam and the Persian Gulf War collectively.

The Armed Forces Naturalization Act of 2003 will reduce the time that a peacetime member of the armed forces has to serve for naturalization eligibility purposes from 3 years to a single year. The fees normally charged for naturalization will be waived for members of the armed forces. Moreover, effort will be made to provide locations overseas at which soldiers will be able to take the naturalization examination, the interviews, and the other steps in the naturalization process. This will avoid the expense to the soldier serving overseas of paying for his or her own transportation to and from the United States to complete the naturalization process.

Current law provides for posthumous citizenship when a soldier is killed during a period that has been declared a time of military hostilities, but the current law explicitly denies derivative immigration benefits to the soldier's spouse and children. this bill will correct that inequity by allowing the spouse, children, and parents of such a soldier to self-petition for immediate relative status on the basis of the soldier's posthumous citizenship. the bill as offered at the markup, however, did not extend similar benefits to the case in which the soldier's surviving spouse is already a lawful permanent resident. This omission was corected by an amendment I offered at the markup.

Ordinarily, a lawful permanent resident must be married to a United States citizen for a period of 3 years before becoming eligible for naturalization as the spouse of a United States citizen. Section 319(d) of the INA waives that requirement when the lawful permanent resident's citizen spouse dies during a period of honorable service in the Armed

Mr. Speaker, I am delighted to yield 4 minutes to the distinguished gentleman from California (Mr. Berman), a member of the full Committee on the Judiciary and the Subcommittee on Immigration, Border Security, and Claims.

Mr. Speaker, can I inquire the time remaining.

Mr. Speaker, I am delighted to yield 3 minutes to the gentleman from Texas (Mr. Frost), the distinguished ranking member of the Committee on Rules and a major proponent but also author of legislation that has been part of this bipartisan legislation.

(Mr. FROST asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 2 minutes to the distinguished gentlewoman from California (Ms. Solis), who was also one of the authors of legislation that contributed to this bipartisan bill that is on the floor today.

Mr. Speaker, I would like to inquire of the Speaker how much time is remaining.

Mr. Speaker, I yield 2 minutes to the gentleman from New Jersey (Mr. Menendez), the distinguished chairman of the Democratic Caucus and a proponent of this legislation.

(Mr. MENENDEZ asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 30 seconds to the distinguished gentlewoman from California (Ms. Linda Sanchez), a member of the full committee and a member of the subcommittee.

(Ms. LINDA SANCHEZ of California asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I thank the chairman, the gentleman from Wisconsin (Mr. Sensenbrenner) for yielding me this time.

Mr. Speaker, the reason this is on the consent calendar is that the members of the Committee on the Judiciary, as well as the Members in the House, agree that we should take steps to make sure citizenship is granted to some 37,000 military people who happen to be noncitizens. And it is in that spirit that I rise to commend the ranking subcommittee chair, the gentlewoman from Houston, Texas (Ms. Jackson- Lee), and the subcommittee chairman, the chairman of the full committee, and all of the members on the Committee on the Judiciary that worked on this.

We are trying to still improve this measure as it goes to conference, and I would like to urge everyone to give it a rousing vote this afternoon.

Mr. Speaker, since this Nation's founding, more than 55 million immigrants from every continent have settled in the United States. Many of these immigrants have not only payed taxes and adopted the American way of life, they have honorably defended our Nation as members of the military.

During the recent war with Iraq, immigrant soldiers have continued to defend our country in large numbers, and tragically 10 noncitizens have lost their lives. It is important that we honor the extraordinary contributions these immigrants make to the Armed Forces by facilitating their naturalization and establishing important protections for their families if they are killed in action. Surely, if these immigrants are willing to risk their lives for our country, the least we can do is grant them the citizenship they so greatly desire.

Unfortunately, the rigidness of current immigrant laws often prevents individuals like these soldiers, who are truly deserving, to be granted citizenship. In particular, a noncitizen who is honorably serving in our military must leave his post abroad and return to the United States to file a naturalization application, be interviewed for the application, and to take the oath of citizenship. Consequently, soldiers serving abroad must spend prohibitive amounts of money in order to become citizens of the country they are defending.

And yet even more shocking is the scenario in which a citizen or noncitizen soldier is killed while serving in our military; current law would void most pending applications for immigration benefits made by the soldier on behalf of his immediate family. This is hardly a way to show our thanks to families that have sacrificed their loved ones in the name of our country.

H.R. 1954, the Armed Forces Naturalization Act of 2003, reduces the 3 year military requirement to naturalize to 1 year, waives fees for naturalization petitions, and allows surviving family members of citizens and posthumous granted citizens to apply for immigration benefits. These substantive changes to immigration law will surely benefit those defending our Nation and will ensure that immigrant families of our fallen soldiers are not penalized for their great sacrifice to our nation.

This is not a perfect bill. For example, it does not go as far as I would have liked in helping the families of deceased servicemen and women obtain green cards. The result is that spouses, children, and parents of a soldier killed in combat who have been rendered removable or ineligible for immigration benefits by the 1996 immigration laws will be precluded from enjoying the benefits of this bill. This means that we will be deporting many of the spouses, children and parents of soldiers who have given their lives serving our country.

I am also concerned with two amendments added to this legislation in the Judiciary Committee. The first amendment will require revocation of citizenship granted through 1 year of military service if the soldier is discharged under less than honorable terms within his first 5 years of military service. This bill was drafted with the intent to reward those who have taken a great risk and made great sacrifice for our country. However, allowing for the revocation of naturalization for less than honorable discharge would punish Service Members in a way that does not currently exist for soldiers applying for naturalization pursuant to completion of service during a time of peace.

The second amendment added to the bill in the Judiciary Committee will prevent parents of citizen soldiers and the parents of soldiers granted citizenship posthumously from obtaining immigration benefits if they are out of the country at the time that their child is killed in combat. The amendment is drafted in such a broad manner that it would exclude from benefits even parents who have not violated any immigration laws, including parents who are waiting abroad for a pending petition filed by their citizen child to be approved. Rather than honoring the sacrifice made by the fallen soldier and his parents, this amendment arbitrarily picks out the category of parents and adds a new requirement that would not have existed had the soldier lived and applied for benefits on behalf of his parents.

H.R. 1954 is a positive step in loosening the rigid restrictions immigration law has imposed on immigrant soldiers and their families. H.R. 1954 would: (a) Expedite the naturalization process by allowing military members to naturalize after serving 1 year in the military, waive naturalization fees, and allow naturalization interviews and oath ceremonies to take place abroad; (b) waive posthumous citizenship fees; and (c) ensure the ability of lawful permanent resident spouses, parents legally present in the United States, and unmarried children of citizen or posthumous granted citizen soldiers killed as a result of military service to self petition for immigration benefits or continue to pursue already filed petitions as if the U.S. citizen had not died. These substantive changes to immigration law will benefit those defending our Nation and will help ensure that many immigrant families of our fallen soldiers are not penalized for their great sacrifice. I am disappointed, however, that the bill passed by the committee is not more generous in addressing the unique needs of immigrant families and, in some cases, makes existing law worse.

More than 37,000 noncitizen soldiers are currently serving on active duty in the U.S. Armed Forces and some of the first U.S. casualties in the current war in Iraq were noncitizens. Unfortunately, the rigidness of current immigration laws often prevents individuals like these soldiers, who are truly deserving, to be granted citizenship. In particular, a noncitizen who is honorably serving in our military must leave his post abroad and return to the United States to file a naturalization application, be interviewed for the application, and to take the oath of citizenship. Consequently, soldiers serving abroad must spend prohibitive amounts of money in order to become citizens of the country they are defending. And yet even more shocking is the scenario in which a citizen or noncitizen soldier is killed while serving in our military; current law would void most pending applications for immigration benefits made by the soldier on behalf of his immediate family.

H.R. 1954 makes many meaningful improvements to existing law. However, I would have preferred that the committee go much further in assisting the immigrant families of our fallen soldiers. One of the unjust consequences of the 1996 immigration laws is that many individuals in the U.S. became ineligible for permanent residence due to a prior unlawful entry or a minor scrape with the law many years prior. The result is that spouses, children, and parents of a soldier killed in combat who have been rendered removable or ineligible for immigration benefits by the 1996 laws will be precluded from enjoying the benefits of this bill. This means that we will be deporting many of the spouses, children and parents of soldiers who have given their lives serving our country. In response, Reps. Howard Berman and Linda Sanchez offered an amendment, defeated by a party line vote, that would have waived certain documentation requirements, and authorized the Department of Homeland Security, on a discretionary basis, to waive categories of inadmissibility for spouses, children, and parents of soldiers killed in service to the military. This proposal would have balanced the goal of honoring the sacrifice these families have made with our duty to national security.

I further believe that this bill does not go far enough in extending immigration benefits to all noncitizens serving the U.S. military, including the Selected Reservists. Current law grants the President authority to designate by Executive order a period of military hostilities that would trigger immediate naturalization eligibility for active duty members of the Armed Forces. Unlike traditional members of the Armed Forces, Selected Reservists are not eligible for immediate citizenship under this law if they do not serve in combat during times of hostility. Rep. Zoe Lofgren offered an amendment, defeated by voice vote, that would have applied immediate naturalization benefits to Select Reservists during times of hostility regardless of whether they serve in combat. This amendment would have addressed the fact that the rationale for providing benefits to members of the Armed Forces and members of the Select Reserves is nearly identical because during times of hostility they both must be ready to leave family, friends, and familiar surroundings at a moment's notice and potentially die for their country.

I take great issue with two amendments added to this legislation by Rep. Steve King. The first amendment will require revocation of citizenship granted through 1 year of military service if the soldier is discharged under less than honorable terms. This bill was drafted with the intent to reward those who have taken a great risk and made great sacrifice for our country. However, allowing for the revocation of naturalization for less than honorable discharge would punish Service Members in a way that does not currently exist for soldiers applying for naturalization pursuant to completion of service during a time of peace. I understand Rep. King's desire to make the bill parallel to current law in 329(c) of the INA, but he overlooks that 329(c) applies exclusively to a special case in which members of the Armed Forces are eligible for immediate naturalization during a time of hostility without the requirement of any prior service or commitment to the military. The provision added to H.R. 1954 would bestow conditional citizenship on all immigrants naturalized through a demonstrated commitment to military service and would create a perverse incentive for noncitizens not to join the military. Moreover, this language would allow military authorities to routinely make legal decisions that in effect would deprive a U.S. citizen of his or her citizenship. In some cases, these decisions would be based on conduct that would be completely lawful in civilian contexts, but is considered a military offense under the Uniform Code of Military Justice.

The second amendment added to the bill by Representative King will prevent parents of citizen soldiers and the parent of soldiers granted citizenship posthumously from obtaining immigration benefits if they are out of the country at the time that their child is killed in combat. The amendment is drafted in such a broad manner that it would exclude from benefits even parents who have not violated any immigration laws, including parents who are waiting abroad for a pending petition filed by their citizen child to be approved and parents who lawfully reside in the United States, but have left the country temporarily at the time of their child's death. Rather than honoring the sacrifice made by the fallen soldier and his parents, this amendment arbitrarily picks out the category of parents and adds a new requirement that would not have existed had the soldier lived and applied for benefits on behalf of his parents.

I reiterate that the Armed Forces Naturalization Act of 2003 does not go far enough in assisting the immigrant families of our fallen soldiers. Moreover, amendments added to the bill in the Judiciary committee would punish noncitizen soldiers and their families, rather than reward them for their service and sacrifice, by creating a conditional class of citizenship and putting additional restrictions on immigrant parents of soldiers.

While this bill is not perfect, it does make many meaningful improvements to existing immigration law and takes a significant step help our soldiers and their families be granted the citizenship they so greatly desire. It is my hope that as this bill goes to conference will seriously consider the negative repercussions these two amendments will have on the people this bill intends to honor. It is for these reasons that I think we can all support this bill.

Mr. Speaker, I want to thank very much the ranking member of the subcommittee on Judiciary that is managing this bill, I want to thank him for the great work that he and the Judiciary staff have done in trying to bring some understanding to the significance of what we are doing here today.

First of all, let us begin the discussion by recognizing that the term ``partial-birth abortion'' is a political term or a rhetorical term. It is not found in the medical journals. It is not found in the textbooks on medicine. The reason is that it was invented in the Congress. Okay?

The bill before us is different from other bills that have attempted to ban abortion because this bill has now determined that they would get around the Supreme Court ban on these procedures which require the health of the mother be taken into consideration by saying, we have a bill here that has about 14 pages of findings, congressional findings, that now make it unnecessary to follow Roe v. Wade and the other major case that precludes these bills from being constitutional. They have been struck down repeatedly, repeatedly, repeatedly. But this bill is now going to be okay because we have congressional findings.

Flash to the Congress. All congressional findings are not approved by the Supreme Court. Sorry about that, gentlemen. We have here, that I will put into the Record, and I hope we will have some discussion on it, the Turner Broadcasting case, Supreme Court case; the Morrison case, the Penhurst case, we go on and on with a long list of cases that say all findings are not findings and that therefore the Supreme Court is going to say, oh, okay, you had two or three doctors testify before your subcommittee and from this you draw findings and so, therefore, now all the Supreme Court decisions about the protection of the health and life of the mother are void. Not so.

The reason is that H.R. 760 simply states that the district court erred in its finding of fact and law, but as a matter of fact, this bill does not add a health exception, but instead simply states that the procedures covered by the bill are not necessary and that therefore their use pose no risk to the mother's health.

We listen to some doctors, we then determine that we have now exceptions and we pack them into this bill and we say, That's it. We don't need to determine that the health and welfare of the mother is as critical as the Supreme Court used to think because now we have findings, congressional findings. And the Supreme Court has got to follow congressional findings. Right? Wrong.

It would seem that on the basis that this was done, it will be pretty easy for the Supreme Court to look behind this bill, H.R. 760.

Mr. Speaker, the Supreme Court has accorded some deference to congressional findings as Congress is the legislative body representing the people. The Court has ruled that it is not necessary for Congress to present conclusive evidence when declaring findings, and Congress has the discretion to weigh evidence and make reasonable inferences.

Nonetheless, the courts do not blindly follow congressional findings. In numerous cases, including Turner, Morrison, and Pennhurst, courts review evidence and look at sworn testimony that is subject to cross- examination before coming to a conclusion. Thus, the implication in H.R. 760 that courts strictly defer to congressional findings is not correct.

H.R. 760 cites Turner Broadcasting System, Inc. v. Federal Communications Commission (``Turner I'') and Turner Broadcasting System, Inc. v. Federal Communications Commission (``Turner II'') to show that the Court pays great deference to congressional findings. However, in Turner I and Turner II, the Court deferred to the overwhelming array of factual evidence presented by Congress. Evidence presented included extensive case law, Senate Reports, numerous hearings held by numerous committees and subcommittees, declarations, and reports. The Court paid great deference to the factual propositions Congress presented. The Court stated that Congress could weight the evidence it uncovered and make ``reasonable inferences based on substantial evidence.''

The key difference is that H.R. 760 simply states that the District Court erred in its findings of fact and law. Gainsaying, no matter how presented, is not the same as fact findings. For example, H.R. 760 does not add a health exception but instead simply states that the procedures covered by the bill are not necessary and that their probation poses no risk to the mother's health. This declaration goes directly against the ruling of the Supreme Court in Stenberg and the findings of fact in the lower court. The ``findings,'' in effect, are an attempt to overturn Stenberg. Congress cannot simply refute findings of fact made by the District Court by presenting its own ``findings'' that are contrary to the evidence the Court depended upon to make its ruling.

In Pennhurst State School and Hospital v. Halderman, a patient at a Pennsylvania hospital for the mentally retarded challenged the conditions of the hospital. The patient claimed Pennhurst Hospital had violated the terms of Sec. 6010 of the Developmentally Disabled Assistance and Bill of Rights Act of 1976 (``DDABRA''). Sec. Sec. 6010(1) and (2) of the DDABRA was ``the bill of rights provision,'' and it ``grant[ed] to mentally retarded persons a right to `appropriate treatment, services, and habilitation' in `the setting that is least restrictive of . . . personal liberty.' ``In Sec. 6010, Congress made a series of findings that were repudiated by the Court. The Court found that Sec. 6010 ``is simply a general statement of `findings' '' and ``does no more than express a congressional preference for a certain kind of treatment.'' The Court held that the ``bill of rights'' did not create a requirement for States to provide the least restrictive environment or to provide certain kinds of treatment to the mentally retarded.

Likewise, in United States v. Morrison, the Court struck down a section of the Violence Against Women Act (``VAWA'') as a violation of the Commerce Clause in the face of overwhelming congressional findings that domestic violence affected interstate commerce. The Court stated, ``[T]he existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.'' Therefore, although the Court defers to congressional findings, findings alone are not sufficient to make an unconstitutional act constitutional.

As with Pennhurst, the ``findings'' in H.R. 760 express a congressional preference, and it is unlikely that any court would defer to the findings. The language in the proposed bill is similar to the challenged language in Pennhurst in that the ``findings'' include precatory language. For example, the ``findings'' include the statement that so-called ``partial-birth'' abortions are never medically necessary even though the Court in Stenberg concluded otherwise.

H.R. 760 also purports to rely on the Supreme Court's holding in Katzenbach v. Morgan for the proposition that the Court will employ a ``highly deferential review of Congress's factual conclusions.'' However, Katzenbach involved Congress's power under section 5 of the 14th Amendment to craft a remedy to a 14th amendment violation Congress had identified. Congress went beyond what the Supreme Court had deemed required as a remedy by the 14th Amendment. In that case, the Court held that provisions of the Voting Rights Act prohibiting the enforcement of a New York law requiring the ability to read and write English as a condition of voting was an appropriate exercise of Congress's section 5 powers. Specifically, the Court said that while Congress could use its enforcement power to provide additional protections for a right guaranteed by the 14th Amendment, it could not narrow that right. H.R. 760 would do exactly the opposite of what the Court approved in Katzenbach in that it narrows, rather than enforces a right protected under the 14th Amendment; in this case, the right to choose as delineated in Roe.

Moreover, in the intervening years, the Court has become far less deferential to Congress's enforcement powers under sec. 5, and to Congress as a finder of fact.

It is unclear what types of procedures are covered by the legislation. Although some believe the legislation would apply to an abortion technique known as ``Dilation and Extraction'' (D & X), or ``Intact Dilation and Evacuation,'' it is not clear the term would be limited to a particular and identifiable practice. For example, the American College of Obstetrics and Gynecologists has noted that the definitions in the bill ``are vague and do not delineate a specified procedure recognized in the medical literature. Moreover the definitions could be interpreted to include elements of many recognized abortion and operative obstetric techniques.'' As a result, the bill could well apply to additional abortion procedures known as D & E (Dilation and Evacuation), and induction.

In the wake of the controversies over partial birth abortions, a number of states have taken up similar legislation. Like the federal bill, most of the state measures are so vague and so broad that they cover a wide range of abortion methods.

The overwhelming majority of courts to have ruled on challenges to state so-called ``partial-birth abortion'' bans have declared the bans unconstitutional and enjoined their enforcement. In the last three years, medical providers have challenged the state statutes that ban ``partial-birth abortion'' in twenty states. In eighteen of those states--Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Iowa, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, Rhode Island, West Virginia, and Wisconsin--the bans are currently enjoined, in whole or in part. In a nineteenth, Alabama, the state attorney general has limited the ban's enforcement to post- viability abortions. In only one state, Virginia, has a court considered the constitutional challenges but nevertheless permitted enforcement of the statute pending further proceedings. Six federal district courts have entered permanent injunctions against statutes that are virtually identical, word for word, with H.R. 760.

The reality concerning quantitative data is that there is no national figures on the absolute number of D & X procedures performed. The two authorities which have the most comprehensive information on abortion-- the Centers for Disease Control and Prevention (CDC) and the Alan Guttmacher Institute (AGI) do not compile data on the number of D & X procedures before or after viability.

According to AGI, in the most recent year for which data is available--1996--the total number of abortions nationally fell to 1.35 million from a high of 1.61 million in 1990. Of these, ``an estimated total of 31 providers performed the [D&X] procedure 2,200 times in 2000, and 0.17% of all abortions performed in that year used this method.''

Proponents of H.R. 760 also ignore the fact that most women do not simply elect to delay the time of their abortion or gratuitously choose the D & X procedure. The causes for delay are varied, including a dearth of abortion providers in many poor or rural areas, lack of availability of Medicaid funding, fear of violence at local clinics, teenagers fearful of notifying their parents or subject to delays caused by notice and informational requirements, and women who only learn of severe fetal abnormalities as a result of late term ultrasound or amniocentesis tests (which is subject to a mandatory wait for results). Physicians will not recommend a particular type of abortion procedure--D & X or otherwise--unless they believe it to be the safest for their patients.

Mr. Speaker, I have another story; it is one that I have watched and heard and seen over the years that we have been dealing with this concept, political concept of partial-birth abortion.

I have the story of several women appearing in the Committee on the Judiciary room some years ago. I believe at that time there may have been only two women on the Committee on the Judiciary, each of us having our own personal story of childbirth and understanding the enormous challenge, burden and emotion of that particular act or procedure along with family members encouraging and hoping for a wonderful live birth.

We listened to women from around the country who came and said that had it not been for a procedure that allowed them to live, they might not have been able to procreate ever again. We heard women say that they had tried and tried and tried to retain the pregnancy, but that under the advice of their doctors in certain months, they were asked to have that particular pregnancy terminated.

Mr. Speaker, this is not a foolish nor is it a frivolous nor is it a political question. This is a question of privacy. We recently honored the 30th anniversary of the landmark Roe v. Wade decision and that decision reaffirmed a woman's right to choose.

I respect my opponents for they have their own reasons, but I will say that I respect life and I respect the right of a woman to make that decision between her god, her family, and her physician.

Partial-birth abortion is not a medical term. The opponents know that. They know that the Supreme Court has reaffirmed a woman's right to choose. They also realize that it does not allow a health exemption which the Supreme Court unequivocally said was a fatal flaw in any restriction on abortion. They realize that this bill is flawed. They realize that it will not save lives.

But most importantly, what we are doing here today is not promoting the sanctity of life, but we are saying to women that you do not count. They count. Vote against this bill.

Mr. Speaker, I rise in opposition to H.R. 760. By debating this bill, this Chamber is once again considering anti-choice legislation that is unconstitutional and dangerous to women's health. As I have in the past, once again I oppose this legislation.

We recently honored the 30th anniversary of the landmark Roe v. Wade decision. This decision reaffirmed a woman's right to choose. H.R. 760 is not only unconstitutional but it is yet another attempt to ban so- called ``partial birth abortions.'' This is a non-medical term. The U.S. Supreme Court struck down a similar statute in Stenberg v. Carhart. The Court invalidated a Nebraska statute banning so-called ``partial birth abortions.'' So, this legislation is at odds with the court's ruling. In Roe v. Wade, the court held that women had a privacy interest in electing to have an abortion, based on the 5th and 14th Amendments' concept of personal liberty.

Despite the fact that the Supreme Court struck down legislation virtually identical to H.R. 760 in the year 2000, anti-choice Members of Congress continue to jeopardize women's health by promoting this legislation to advance their ultimate goal of eliminating a woman's right to choose altogether.

H.R. 760 is unconstitutional for the same two reasons the Supreme Court found other statutes attempting to ban partial birth abortions unconstitutional. First, H.R. 760 lacks a health exception, which the Supreme Court unequivocally said was a fatal flaw in any restriction on abortion. Second, the non-medical term ``partial birth abortion'' is overly broad and would include a ban of safe, previability abortions. Banning the safest abortion option imposes an undue burden on a woman's ability to choose.

There are several safe procedures at issue in H.R. 760: the intact dilation and extraction or dilation and extraction (``intact D&E'' or ``D&X''), the dilation and evacuation (``D&E''), and induction abortions. The proponents of H.R. 760 claim the bill would ban only the D&X procedure, but medical experts argue otherwise.

D&E is the most commonly used procedure for second-trimester abortions. Together, D&E and D&X abortions comprise approximately 96 percent of all second-trimester abortions performed in this country. Induction abortions account for the majority of the remaining 4 percent of second-trimester abortions, require hospitalization, and are more expensive than D&E or D&X abortion. While induction is a safe procedure, for some women, it poses unacceptable risks.

With the vast majority of second-trimester abortion procedures performed using the D&E or D&X methods or by induction, banning these procedures would ban virtually all previability second-trimester abortions in this country. If H.R. 760 passes, physicians will be left with very few options to protect the safety of their patients. Physicians will have to choose between performing practically all second-trimester abortions under threat of criminal and civil prosecution, changing their medical practices to the detriment of the maternal health and financial health of their patients, or stop providing second-trimester abortions altogether.

Forcing physicians to choose from these limited options, prevents physicians from electing a procedure that is within the accepted standard of care, is safe, and for some women may be safer than the options remaining. The D&X abortion procedure offers a variety of safety advantages over other procedures. Compared to D&X abortions, D&X involves less risk of uterine perforation or cervical laceration because the physician makes fewer passes into the uterus with sharp instruments. There is substantial medical evidence that D&X reduces the risk of retained fetal tissue, a complication that can cause maternal death or injury. The D&X procedure is a safer option than other procedures for women with particular health conditions. Finally, D&X procedures usually take less time than other abortion methods used at a comparable stage of pregnancy, which can have significant health advantages.

In fact, as the American College of Obstetricians and Gynecologists (ACOG) has concluded, D&X may be ``the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.''

H.R. 760 would improperly put the legislature in the physician's office. Allowing physicians to exercise their medical judgment is not only good policy--it is also the law. In Stenberg v. Carhart, 530 U.S. 914 (2000), the Supreme Court rules that all abortion legislation must allow the physician to exercise reasonable medical judgment, even where medical opinions differ. The Court made clear that exceptions to an abortion ban cannot be limited to situations where the health risk is an ``absolute necessity,'' nor can the law require

unanimity of medical opinion as to the need for a particular abortion method.

The proponents of H.R. 760 have further compromised the medical safety of women by refusing to draft an exception to the ban on certain abortion procedures to protect women's health. Such an exception is required under the Constitution. The Supreme Court has concluded in several cases that a women's health is always the physician's primary concern and that a physician must be given the discretion to determine the best course of treatment to protect women's lives and health.

The bill's ban on safe abortion procedures that are within the standard of care strips physicians of the discretion they need to make critical medical judgments. This will result in an unacceptable risk to women's health. Given the safety advantages of D&E, D&X and induction procedures over other abortion procedures, banning these procedures will necessarily harm women and deprive them of optimal care. As a physician and a woman, I consider this result unacceptable.

The findings to H.R. 760 attempt to justify the fact that the bill directly conflicts with Carhart by suggesting that the Supreme Court must defer to Congressional fact-finding, even if Congress's so-called ``facts'' conflict with the preponderance of evidence in litigation before the Court. But the drafters of H.R. 760 are wrong. First, a fundamental tenet of our constitutional structure, which establishes three separate branches of the Federal government, is that Congress can enact laws, but it cannot decide whether those laws are constitutional. The power to decide what laws are constitutional is exclusively the Supreme Court's role.

Second, the Supreme Court is not required to defer to Congressional fact-finding. Rather, the Court has the power and the duty to independently assess the evidence that is presented to it, as it did in Carhart, and has no obligation to defer to Congressional findings on ``partial-birth abortion.''

The drafters of H.R. 760 are clearly wrong in asserting that they can overrule Carhart through legislation. Prior attempts by Congress to undo disfavored Supreme Court rulings (such as Congress's attempt to legislatively overturn Miranda v. Arizona, 384 U.S. 436 (1966), and Employment Division, Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)) have been soundly rejected by the Supreme Court. Given the utter absence of legal support for this bill, it must be seen as a purely political gesture, not as a serious attempt at legislation.

The ACOG, whose more than 44,000 members represent approximately 95 percent of all board-certified obstetricians and gynecologists practicing in the United States, opposes abortion ban legislation and has stated that ``. . . [t]he intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.''

In addition to ACOG, other medical groups have opposed attempts by Congress to enact abortion ban legislation, including:

The American Public Health Association, the American Nurses Association, the American Medical Women's Association, the California Medical Association, Physicians for Reproductive Choice and Health, the American College of Nurse Practitioners, the American Medical Student Association, the Association of Reproductive Health Professionals, the Association of Schools of Public Health, the Association of Women Psychiatrists, the National Asian Woman's Health Organization, the National Association of Nurse Practitioners in Reproductive Health, the National Black Women's Health Project, the National Latina Institute for Reproductive Health, the National Women's Health Network, and the Rhode Island Medical Society.

Mr. Speaker, the medical community has voiced wide-spread opposition to H.R. 760. Likewise, the Supreme Court has opposed the bans on abortion procedures proposed in H.R. 760. I join the medical community and the Supreme Court is standing up for women's constitutionally protected right to choose safe abortion procedures. I oppose H.R. 760 and I urge my colleagues to do the same.