Providing for consideration of the bill (H.R. 760) to prohibit the procedure commonly known as partial-birth abortion.

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 yield myself such time as I may consume and thank the gentlewoman for yielding me the customary 30 minutes.

(Ms. SLAUGHTER asked and was given permission to revise and extend her remarks.)

Mr. Speaker, here we are again, considering the rule for the same unconstitutional bill. I must voice my grave concern with H.R. 760, the so-called Partial-Birth Abortion Ban Act of 2003. Today The New York Times says in an editorial, ``Partial Birth Mendacity,'' which means lie, that although promoted as narrowly focused on a single late-term abortion procedure, the measure's wording adds up to a sweeping prohibition that would, in effect, overturn Roe v. Wade by criminalizing the most common procedures used after the first trimester, but well before fetal viability.

My constituents are facing unemployment. They are losing out on child tax credit. They need more funding for our first responders, they need the promised health care for our veterans; but here we are debating a rule on legislation that violates fundamental constitutional rights and threatens women's health.

Mr. Speaker, 3 years ago the United States Supreme Court struck down similar legislation that banned safe and effective abortion procedures. They confirmed again a woman's reproductive rights as recognized in Roe v. Wade and reaffirmed 2 decades later in Planned Parenthood of Southeastern Pennsylvania v. Casey.

H.R. 760 suffers from the same constitutional flaws as the Nebraska statute thrown out by the Court. The ban on medical procedures is vague and overbroad, and it does not contain an exception from the procedure ban when a woman's health is threatened. And it goes so far as to give the father of the fetus the right to sue the woman or the doctor for money even if he has beaten his wife or rapes her or had threatened her life or has deserted her. How crazy is that?

Obstetricians and gynecologists say that the term ``partial-birth abortion'' is not a medical term, and they are right. It is purely a political creation. The definition of the procedure that H.R. 760 seeks to ban is written in nonmedical language that could cover at least two different procedures, one of which is the most commonly used abortion procedure. This vague and overbroad definition, which is probably not by accident, would create so much confusion in the medical community that doctors would not know which medical procedures might land them in jail with a huge fine. We should not make our doctors into criminals.

The American College of Obstetricians and Gynecologists, the doctors who perform these procedures, say that the procedure the bill seeks to proscribe may be the best or most appropriate procedure in a particular circumstance to save the life or to preserve the health of the woman and only the physician in consultation with the patient and based on her circumstances can make this decision. The Congress of the United States has never, ever outlawed a medical procedure. What are we doing here, and what in the name of God is next?

Medical professionals and every Federal court in the country that has heard this issue, except for one, have agreed that these are safe procedures and may be the safest procedures in some circumstances; but we are going to take that away. And who will suffer for that? The American women.

Physicians and not politicians and pundits should provide women and their families with medical advice. I want a doctor to treat my daughters and granddaughters. Women and their families, not the government, should make these difficult, private, medical decisions; and if that is not the case, then every time a procedure is done, there should be a Member of Congress standing at the door okaying it.

The bill would deprive doctors of the ability to care for their patients by outlawing safe and effective medical procedures, something we have never done. We assume that once they have gone through medical school, done their internship and their residencies, they ought to know what they are doing. Congress would subject women to even more dangerous medical procedures and put their health and lives in jeopardy. Everybody deserves the best medical care based on the circumstances of their particular situation.

Instead of making abortion more difficult and dangerous for women, we should pass legislation that helps reduce the need for abortion by reducing the number of unintended pregnancies. That is the most important thing that we could do; and by increasing funding for title X, to require the insurance coverage of contraception, which we will not do, making emergency contraception more available, which we are afraid of, and increasing research for other contraceptive methods. Indeed, I am not at all sure that after this bill is passed and signed by the President that the sale of contraceptives will not be in danger.

H.R. 760 brazenly seeks to sidestep the Constitution. The Supreme Court

has plainly determined that the Constitution requires an exception when the woman's health is endangered. Pages and pages of congressional findings do not change or fulfill constitutional demands or protect women's health.

The authors of this bill hope that the Federal courts, most especially the United States Supreme Court, will defer to these congressional findings and waive this constitutional requirement, but the Court has unequivocally said that the power to interpret the Constitution in a case or controversy remains in the judiciary, and the Court has said that simply because Congress makes a conclusion does not, in the Court's opinion, make it true.

Just because the findings in the bill assert that there is no medical reason for a health exception does not make that true and it does not change the demand of the Constitution. As Ruth Marcus, writing in the Washington Post, noted today, ``Justice Clarence Thomas wrote in a different context that if Congress could make a statute unconstitutional simply by finding that black is white or freedom is slavery, judicial review would be an elaborate farce.'' Think about that for a moment. That if Congress could make a statute constitutional simply by finding that black is white and we were to determine that, or that freedom and slavery are not different, then why would we have judicial review?

So why are we today considering a rule for this unconstitutional bill? Richard Posner, chief judge of the U.S. Court of Appeals for the Seventh Circuit, who was appointed by President Reagan, gave us the answer. He wrote that proponents of similar legislation ``are concerned with making a statement in an ongoing war for public opinion, though an incidental effect of that opinion may be to discourage late-term abortions. The statement is that fetal life is more valuable than women's health.''

Judge Posner went on to say that if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, then the burden is undue. Those are very important words, Mr. Speaker. Those are words from jurists and people who know whereof they speak.

Again Ruth Marcus' article points out that the political agenda is clear. Ken Connor, who is the president of the conservative Family Research Council, spelled it out in an e-mail after the Senate voted on a measure similar to this last March. ``With this bill,'' he wrote, ``we are beginning to dismantle, brick by brick, the deadly edifice created by Roe v. Wade.

As the mother of three daughters, a grandmother and a longtime advocate for women's health, I strongly believe that this bill is a threat to women's health and an attempt to whittle away at a woman's constitutional right to choose.

I urge my colleagues to oppose this rule and to oppose H.R. 760.

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

Mr. Speaker, I yield 5 minutes to the gentleman from Virginia (Mr. Scott).

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

(Ms. WOOLSEY asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I yield myself 15 seconds just to say to the previous speaker that we know what the agenda is. It was pointed out today. Kent Connor, the president of the Conservative Family Research Council spelled it out. He said, ``With this bill we will dismantle, brick by brick, Roe v. Wade.''

I hope that all of my colleagues are listening in the House, because this may be the last vote we will have on choice.

Mr. Speaker, I yield 2 minutes to the gentlewoman from California (Ms. Linda T. Sanchez).

Mr. Speaker, I yield myself 1 minute.

Mr. Speaker, I am always dismayed by the fact that these fetuses are described as ``viable.'' That is one of the saddest things in the world.

I have talked to parents who had this procedure, babies who were in utero with their brains on the outside, with no lungs, no possibility of living. Always the notion is given if they were just allowed not to go through that procedure, they would get down and almost run around the room.

It is not true. It is not true. The parents who have to go through this are heartbroken over it, but it is the way they can have further children. The American College of Obstetricians and Gynecologists who perform these procedures say it may be the best or most appropriate procedure in a particular circumstance.

What if your wife or your daughter is in a particular circumstance, and you had voted to outlaw the procedure that would be the best for her future and her life and maybe even save her life? We have no right to do that, Mr. Speaker, no right at all.

Mr. Speaker, I yield 2 minutes to the gentleman from Oregon (Mr. Blumenauer).

Mr. Speaker, I yield myself 15 seconds.

Mr. Speaker, I do not want to say anything contradictory to my friends on the other side who want to make sure these children are born; but if they are poor, they are not going to get the benefit of the tax rebate.

Mr. Speaker, I yield 3 minutes to the gentleman from Massachusetts (Mr. Delahunt).

Mr. Speaker, I yield 2 minutes to the gentlewoman from Florida (Ms. Corrine Brown).

Mr. Speaker, I yield myself 30 seconds.

Mr. Speaker, I want to say to my colleague, the gentlewoman from Colorado, how happy I am that she had that experience. I am even more happy that that experience showed that that fetus was in good shape and would be able to be born and to be healthy.

We are talking today about women who are faced with the fact that the fetus will not be. I think we are getting astray from that.

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

Mr. Speaker, first I want to say that the statistics on the clinic in Pennsylvania were really quite shocking. I thought these were all done in hospital situations. I have never heard those kinds of figures for anything.

That aside, let me read about a woman who terminated a pregnancy that, they are very rare, I still believe that.

The decision to terminate a pregnant late in term is an agonizing decision for the women and their families. Listen to the story of Viki Wilson and her family as she told it in her own words:

``In the spring of 1994, I was pregnant and expecting Abigail, my third child. My husband, Bill, an emergency room physician had delivered our other children and would do it again this time. At 36 weeks of pregnancy, however, all of our dreams and happy expectations came crashing down around us. My doctor ordered an ultrasound that detected that all of my previous prenatal testing had failed to detect. Approximately two-thirds of my daughter's brains had formed outside her skull. What I had thought were big, healthy, strong baby movements were, in fact, seizures.

``My doctor sent me to several specialists, including a perinatologist, a pediatric radiologist, and a geneticist, in a desperate attempt to find a way to save her; but everyone agreed she would not survive outside my body. They also feared that as the pregnancy progressed and before I went into labor, she would probably die from the increased compression in her brain.

``Our doctors explained our options, which included labor and delivery, c-section, or termination of pregnancy. Because of the size of her anomaly, the doctors feared that my uterus might rupture in the birthing process probably rendering me sterile. The doctors also recommended against a c-section because they could not justify the risks to my health when there was not any hope of saving Abigail.

``We agonized over our options. Both Bill and I are medical professionals. I am a registered nurse and Bill is a physician, so we understood the medical risks inherent in each of our options. And after discussing our situation extensively and reflecting on our options, we made the difficult decision to undergo an intact D&E.

Losing Abigail was the hardest thing that has ever happened to us in our lives, but I am grateful that Bill and I were able to make this difficult decision ourselves and that we were given all of our medical options. There will be families in the future faced with this tragedy. Please allow us to have access to the medical procedures we need. Do not complicate the tragedies that we already face. Oppose H.R. 760.''

Mr. Speaker, for Viki and her family and for other Vikis yet to come, I hope that my colleagues will oppose this rule and oppose the underlying bill, H.R. 760. And I urge them to remember that once this bill passes the House, if it does, then it will be substituted for the Senate bill. The Senate bill at least

had the protection in it that was passed by Senator Dorgan on his request that says that Roe v. Wade would be preserved. Obviously, by substituting this bill for that bill, Roe v. Wade will not be preserved.

[From the New York Times, June 4, 2003]

``Partial Birth'' Mendacity, Again

If the so-called partial-birth abortion ban now careering

toward almost certain approval by the full House this week

has a decidedly familiar ring, it is not your imagination

playing tricks. The trickery here belongs to the measure's

sponsors.

Although promoted as narrowly focused on a single late-term

abortion procedure, the measure's wording adds up to a

sweeping prohibition that would, in effect, overturn Roe v.

Wade by criminalizing the most common procedures used after

the first trimester, but well before fetal viability. Indeed,

the measure replicates the key defects that led the Supreme

Court to reject a strikingly similar state law a mere three

years ago. In addition to its deceptively broad sweep, the

bill unconstitutionally omits an exception to protect the

health of the woman.

Plainly, the measure's backers are counting on the public

not to read the fine print. Their strategy is to curtail

access to abortion further as the inevitable legal challenge

wends its way back to the Supreme Court for another showdown.

They obviously hope that by that time, there will have been a

personnel change that will shift the outcome their way.

House members who vote for this bill will be participating

in a cynical exercise that disrespects the rule of law and

women's health while threatening the fundamental right of

women to make their own childbearing decisions.

Representatives who care about such things will not go along.

Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

Mr. Speaker, this bill is unconstitutional.

The bill before us will not prohibit any abortions. Its supporters claim it prohibits a procedure, but the abortion will still take place involving another procedure, and I will not inflame the debate by describing in detail the alternative procedures that may be used. But I will point out that Nebraska had a law banning the same procedure. Nearly 3 years ago the United States Supreme Court held in Stenberg v. Carhart that that law was unconstitutional.

The Supreme Court said five times in its majority opinion and other times in concurring opinions that in order to make a partial-birth abortion ban constitutional, the law must contain a health exception to allow the procedure, quote, ``where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'' That is what five Supreme Court justices said was necessary to make the bill constitutional. All five are still on the Supreme Court.

In that case, the Court said:

The question before us is whether Nebraska's statute making criminal the performance of a partial-birth abortion violates the Federal Constitution as interpreted in Planned Parenthood v. Casey and Roe v. Wade. We conclude that it does for at least two independent reasons.

They said the first reason was that the law lacked an exception for the preservation of the health of the mother. The Stenberg court reminded us what a long line of cases has held, that, and they say, ``subsequent to viability, the State may, if it chooses, regulate and even proscribe abortion,'' and they put this in italics, ``except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.''

It goes on to say, in quotes, in case we did not understand the italics, that the governing standard requires an exception, quote, ``where it is necessary in the appropriate medical judgment for the preservation of the life or health of the mother.''

The Court continues talking about the health exception by saying and mentions another quote:

Justice Thomas said that ``The cases just cited limit this principle to situations where the pregnancy itself creates a threat to health.'' He is wrong. The cases cited, reaffirmed in Casey, recognize that a State cannot subject women's health to significant health risks both in that context and also where State regulations force women to use riskier methods of abortion. Our cases have repeatedly invalidated statutes that in the process of regulating the methods of abortion imposed significant health risks. They make it clear that the risk to a woman's health is the same whether it happens to arise from regulating a particular method of abortion or from barring abortions entirely.

Finally, the Court says:

Nebraska has not convinced us that a health exception is, quote, ``never medically necessary to preserve the health of women.'' Rather, a statute that altogether forbids the partial-birth abortion creates a significant health risk. The statute subsequently must contain a health exception.

And if we did not get it, the Court reiterates again:

``By no means must a State grant physicians unfettered discretion in their selection of methods. But where substantial medical authority supports the proposition that banning a particular method could endanger women's health, Casey requires the statute to include a health exception when the procedure is, quote, 'necessary in appropriate medical judgment for the

preservation of the life or health of the mother.' Requiring such an exception in this case is no departure from Casey, but simply a straightforward application of its holding.''

Mr. Speaker, whatever our views are on the underlying issue of abortion, we ought to read the decision and apply the law. The Supreme Court in one opinion said at least five times that a health exception must be included for the statute to be constitutional. Furthermore, they put the exact phrase to be used, ``necessary, in appropriate medical judgment, for the preservation of the life or health of the mother'' in italics and quotations.

The majority proposes that we consider a bill without this unqualified health exception. The Court made it clear that such a health exception is required and, therefore, this rule that requires us to consider a bill without that exception ought not pass.

Mr. Speaker, I ask the House to defeat the rule so that we can have a bill considered with a health exception that might possibly be constitutional.

Mr. Speaker, I include for the Record a Statement of Policy from the American College of Obstetricians and Gynecologists which says that this procedure may be necessary in some circumstances.

The American College of Obstetricians and Gynecologists Statement of

Policy on Abortion

The following statement in the American College of

Obstetricians and Gynecologists' (ACOG) general policy

related to abortion, with specific reference to the procedure

referred to as ``intact dilatation and extraction'' (intact D

& X).

1. The abortion debate in this country is marked by serious

moral pluralism. Different positions in the debate represent

different but important values. The diversity of beliefs

should be respected.

2. ACOG recognizes that the issue of support of or

opposition to abortion is a matter of profound moral

conviction to its members. ACOG, therefore, respects the need

and responsibility of its members to determine their

individual positions based on personal values or beliefs.

3. Termination of pregnancy before viability is a medical

matter between the patient and physician, subject to the

physician's clinical judgment, the patient's informed consent

and the availability of appropriate facilities.

4. The need for abortions, other than those indicated by

serious fetal anomalies or conditions which threaten maternal

welfare, represents failures in the social environment and

the educational system.

The most effective way to reduce the number of abortions is

to prevent unwanted and unintended pregnancies. This can be

accomplished by open and honest education, beginning in the

home, religious institutions and the primary schools. This

education should stress the biology of reproduction and the

responsibilities involved by boys, girls, men and women in

creating life and the desirability of delaying pregnancies

until circumstances are appropriate and pregnancies are

planned.

In addition, everyone should be made aware of the dangers

of sexually transmitted diseases and the means of protecting

each other from their transmission. To accomplish these aims,

support of the community and the school system is essential.

The medical curriculum should be expanded to include a

focus on the components of reproductive biology which pertain

to conception control. Physicians should be encouraged to

apply these principles in their own practices and to support

them at the community level.

Society also has a responsibility to support research

leading to improved methods of contraception for men and

women.

5. Informed consent is an expression of respect for the

patient as a person; it particularly respects a patient's

moral right to bodily integrity, to self-determination

regarding sexuality and reproductive capacities, and to the

support of the patient's freedom within caring relationships.

A pregnant women should be fully informed in a balanced

manner about all options, including raising the child

herself, placing the child for adoption, and abortion. The

information conveyed should be appropriate to the duration of

the pregnancy. The professional should make every effort to

avoid introducing personal bias.

6. ACOG supports access to care for all individuals,

irrespective of financial status, and supports the

availability of all reproductive options. ACOG opposes

unnecessary regulations that limit or delay access to care.

7. If abortion is to be performed, it should be performed

safely and as early as possible.

8. ACOG opposes the harassment of abortion providers and

patients.

9. ACOG strongly supports those activities which prevent

unintended pregnancy.

The College continues to affirm the legal right of a woman

to obtain an abortion prior to fetal viability. ACOG is

opposed to abortion of the healthy fetus that has attained

viability in a healthy woman. Viability is the capacity of

the fetus to survive outside the mother's uterus. Whether or

not this capacity exists is a medical determination, may vary

with each pregnancy and is a matter for the judgment of the

responsible attending physician.

Intact Dilatation and Extraction

The debate regarding legislation to prohibit a method of

abortion, such as the legislation banning ``partial birth

abortion,'' and ``brain sucking abortions,'' has prompted

questions regarding these procedures. It is difficult to

respond to these questions because the descriptions are vague

and do not delineate a specific procedure recognized in the

medical literature. Moreover, the definitions could be

interpreted to include elements of many recognized abortion

and operative obstetric techniques.

ACOG believes the intent of such legislative proposals is

to prohibit a procedure referred to as ``intact dilatation

and extraction'' (Intact D & X). This procedure has been

described as containing all of the following four elements:

1. deliberate dilatation of the cervix, usually over a

sequence of days;

2. instrumental conversion of the fetus to a footling

breech;

3. breech extraction of the body excepting the head; and

4. partial evacuation of the intracranial contents of a

living fetus to effect vaginal delivery of a dead but

otherwise intact fetus.

Because these elements are part of established obstetric

techniques, it must be emphasized that unless all four

elements are present in sequence, the procedure is not an

intact D & X. Abortion intends to terminate a pregnancy while

preserving the life and health of the mother. When abortion

is performed after 18 weeks, intact D & X is one method of

terminating a pregnancy.

The physician, in consultation with the patient, must

choose the most appropriate method based upon the patient's

individual circumstances.

According to the Centers for Disease Control and Prevention

(CDC), only 5.3% of abortions performed in the United States

in 1993, the most recent data available, were performed after

the 16th week of pregnancy. A preliminary figure published by

the CDC for 1994 is 5.6%. The CDC does not collect data on

the specific method of abortion, so it is unknown how many of

these were performed using intact D & X. Other data show that

second trimester transvaginal instrumental abortion is a safe

procedure.

Terminating a pregnancy is performed in some circumstances

to save the life or preserve the health of the mother.

Intact D & X is one of the methods available in some of

these situations. A select panel convened by ACOG could

identify no circumstances under which this procedure, as

defined above, would be the only option to save the life or

preserve the health of the woman. An intact D & X, however,

may be the best or most appropriate procedure in a particular

circumstance to save the life or preserve the health of a

woman, and only the doctor, in consultation with the patient,

based upon the woman's particular circumstances can make this

decision. The potential exists that legislation prohibiting

specific medical practices, such as intact D & X, may outlaw

techniques that are critical to the lives and health of

American women. The intervention of legislative bodies into

medical decision making is inappropriate, ill advised, and

dangerous.

Approval by the Executive Board. General policy: January

1993. Reaffirmed and revised July 1997. Intact D & X

statement: January 1997. Combined: and reaffirmed September

2000.

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.