A bill to designate the facility of the United States Postal Service located at 38 Spring Street in Nashua, New Hampshire, as the "Hugh Gregg Post Office Building".

Mr. President, to comment directly on the Senator's motion to recommit, she cites statements by Members of the Republican leadership concerning the practice last session of repeatedly bringing bills to the floor without having gone through committee. The bills we were referring to included a comprehensive energy bill, a bill about that thick, and the agriculture reauthorization, which was another rather thick and complicated piece of legislation, all brand-new material. The prescription drug plan, roughly $300 to $400 million in new Government spending, and a brand-new entitlement, never went through committee. And a whole host of other pieces of legislation. We are talking about major, complex, lengthy, pieces of legislation.

The corporate responsibility bill was dramatically changed and a whole list of others that came to this floor. Members were justifiably concerned that these rather extensive and expensive and complex pieces of legislation should have had some review at the committee level.

None of these measures, prior to their being placed on the floor of the Senate, had been on the floor of the Senate before, had not had any kind of consideration in any body.

Compare that to the legislation before the Senate. The legislation before the Senate is the same subject matter we have debated on the floor on four previous occasions. There have been two extensive Judiciary Committee hearings on this piece of legislation and there has been wide discussion both on the floor and off the floor about this particular procedure.

The Senator from California argues we should have this bill go before the Judiciary Committee now because it is a changed bill. These are her words: ``It's a changed bill.'' Earlier in her discussion she said this bill does not meet constitutional muster because it is identical to the bill we passed previously. So if it is identical, how can it be changed? If it is identical, why do we have to go back? If it is not identical, you can at least make the point we need to go back.

I make the argument the underlying issue we are dealing with here, the issue of banning this procedure, has not changed at all. Some of the legislative language has changed, but the Senate floor is eventually going to handle this issue anyway and is perfectly competent to review this legal language and make a determination on their own as to whether they believe this meets the constitutional standard as set forth in the Carhart decision. I don't believe it is hard. There is a unique expertise within the Judiciary Committee to deal with something that eventually we have to deal with on the floor. There is a lot of information written about this subject area, and it has been fully and openly debated on the Senate floor.

It is a very narrow issue. This is not a Medicare prescription drug plan. This is not a comprehensive energy strategy. This is not an agriculture reauthorization bill. This is not a corporate responsibility bill. This is a very narrow single issue. We are talking about the difference in this case between maybe 20 or 30 words. I don't think we need a Judiciary Committee hearing and markup for 20 or 30 words on a bill we have debated four times on the floor of the Senate. We are perfectly capable of handling it.

That leads me to the second issue, which is the issue of constitutionality the Senator from California brings up as a reason to commit this legislation back to committee.

Let me address those issues. First, the issue of vagueness. The Senator from California quotes the U.S. Supreme Court in saying, ``its language makes clear''--its language being the bill's language in Nebraska--``that it also covers a much broader category of procedures.'' As a result of that, the possibility with the language in the Nebraska statute covering procedures other than partial-birth abortion, the Court found it to be vague.

We have responded to that. We have responded to that with a much more detailed definition. Let me read the operative parts of the definition to show the difference in language in how we have responded to this concern. In S. 1692, which was virtually identical to the Nebraska statute, the definition was:

An abortion in which the person performing the abortion

deliberately and intentionally vaginally delivers some

portion of

an intact living fetus until the fetus is partially outside

the body of the mother.

Let me repeat that:

. . . some portion of an intact living fetus until the

fetus is partially outside the body of the mother.

The Court said there are other procedures done, late-term abortion procedures that are done, that in the process of doing that procedure, a portion of the body--maybe an arm or a leg or an appendage, may actually come outside of the mother while the child is still alive. So what they are saying is as a result of that, we could be banning this other procedure. In the course of doing another abortion procedure that is legal, not barred by the legislation before us today, that could occur.

We have addressed that issue. They clearly point to that particular example. We have changed the language by saying the person performing the abortion deliberately and intentionally vaginally delivers ``a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother or, in the case of a breech presentation, any part of the fetal trunk''--not an arm, not a hand, not a foot, not a leg--any part of the fetal trunk, which means, of course, the feet, the legs and the trunk ``past the navel, is outside the body of the mother.''

So we are not talking about performing a D&E, where the baby is killed in utero and dismembered and taken out a piece at a time. We are not talking about that procedure. We are talking about a procedure where--if we can get the chart so I can graphically show what we are talking about--there is no other procedure that could possibly be covered.

I ask those who are opponents of this bill if they can name for me another procedure where the child would be arms, legs, and trunk outside of the mother, all but the head. That is the procedure we are talking about here. No other medical procedure as defined in the medical literature has a baby in this position. Period. Period. There is no vagueness here. We are clear about this procedure.

We are very clear that the child is delivered in a breech position and then, if we put the previous chart up, these 8-inch long scissors-- we can see the scissors are about as long as a human hand and the baby is roughly as long, maybe slightly longer than a human hand. This baby at this point is roughly, I believe, 24 weeks, which is roughly the time, 20 to 26 or 27 weeks, when the vast majority of these partial- birth abortions are performed.

I know the Senator from California said her constituents saw these pictures and they couldn't look at them. That is why we are trying to ban this procedure. Because this is horrific. You cannot look at it and not be affected.

The Senator from Washington, the day before yesterday, said that banning this procedure is an extreme measure. I would like to know what her definition of extreme is. Banning this procedure is an extreme measure. I asked her what she thought about the fact that 70 percent of the American public wanted to ban this procedure. Under my definition of extreme, it does not equate to 70 percent support of something being considered extreme. But she held fast. She said the reason it is 70 percent support is because they do not understand really what this procedure is all about.

I want to juxtapose that statement to the statement of the Senator from California who said the people in her State could not even look at the pictures. I suggest to you, what if every single American were forced to sit in front of a television set, or, worse yet, were required to come into an abortion clinic--these are not performed at hospitals; they are just performed at abortion clinics. What if every single American were required to come in and watch this occur to a little baby, to stand and watch a physician who is trained to heal, who is trained to save lives, who is trained, as the Senator from California said yesterday, to ``first do no harm,'' remove a 20-week to 26-week, 27-week--in some cases unfortunately later than that--little baby from its mother.

This is the part I just find chilling. Imagine yourself, close your eyes and imagine yourself in this abortion clinic watching this little child. I have witnessed the birth of our seven little children. I see these little people emerge miraculously, incredibly, from the birth canal, from their mother into the loving hands of a doctor whose job it is to heal, whose job it is to nurture and take care of that child.

But in this case those hands are not there to heal. These are not healing hands. They look like it, don't they? They have the gloves on, don't they? They are sterile, aren't they? But they are not healing hands. No, these hands are not there to heal this little child. Those hands are there to grasp that little child who is alive; who is alive. By definition, under this bill, this is not a partial-birth abortion, because it says ``delivers a living fetus.''

So, if this child is not alive, this procedure is not barred. This procedure is only barred if this baby is alive.

So you have hands of a doctor trained to heal, grasping a living child whose arms and legs are extended, whose heart is beating, whose nerves are sensing, whose brain is attempting to understand what is going on, and he's grasping this living being.

When you hold something that is alive, when you have it in your hands, whether it is a little rabbit, guinea pig, or little puppy, there is a feeling. There is a sense you have when you are holding something that is alive. This doctor is holding something he or she knows is alive and is 3 inches from being born, 3 inches from constitutional protection. This doctor is not there to heal. He is there to take these scissors, long, narrow scissors that come to a point at the end--they are called Metzenbaum scissors--his job is to do this blindly, because this is not done with a sonogram. This is not done where the doctor can see inside of the mother through a medical device. No, this is done blindly. The doctor is feeling, reaching his hands in to find the spot, the lethal spot, the soft spot here at the base of the skull, that soft spot in this little baby where he takes this sharp instrument and blindly thrusts it into this baby's skull.

As our majority leader said yesterday, it is a dangerous procedure for mothers. It is a blind procedure. It is done in an area of the body that is very susceptible to injury. It is a very lush area of the body. There is no protection for the mother. As the Senator from Tennessee yesterday said, those scissors could slip because it a blind procedure. They could perforate a uterus, or they could lead to incompetent cervix. They could lead to a variety of harm that other late-term abortion procedures do not do.

Not only is this lethal for this baby but it is dangerous for the mother. According to the doctor who designed this procedure, he said-- again, this his testimony--that he has never encountered a situation where a partial-birth abortion was medically necessary to achieve the desired outcome. His words: Never medically necessary. He personally designed the procedure and said often that the reason he designed this procedure was not because it was healthier for women, not because it was safer for women, and not because it was a better, more scientific way of doing this. This procedure is not taught in a single medical school in the country. It is not taught in a single hospital in the country. It is not, to my knowledge, performed by any obstetrician. It is performed by abortionists who are not board certified in obstetrics. But they are certified in destruction. That is what this procedure is. This is not a procedure to preserve the health of mothers. The doctor who designed this procedure said he designed this procedure because the other type of abortion, which we do not ban in this legislation, takes 45 minutes. This takes 15 minutes. In his words--not mine--``I can do more abortions in a day.''

Those scissors are thrust into this little baby's skull.

Again, you are in this room. Close your eyes. You are in this room, and you are watching this baby whose arms and legs are moving, who is alive, who but for this act that is being perpetrated upon it, would be born alive. That is not to say it would live substantially longer after birth; depending on its gestational age, maybe or maybe not.

We have cases the Senator from Ohio talked about where mothers who had partial-birth abortions or were to have partial-birth abortions-- remember how this procedure works. You can go in and present yourself to the abortionist. The abortionist gives you a pill and

sends you home for 2 days. That is the reason it only takes 15 minutes of his time--because he sends you home with medication to dilate your cervix over a 2-day period of time and you present yourself again for the procedure. At that point, it only takes 15 minutes of his time. There are all sorts of complications which I will not get into right now.

Having dilation over a 2-day period of time could lead to women's inability to carry children long term after their abortion. In two cases in Ohio, women delivered children because their cervix dilated too quickly, which induced labor. It resulted in the delivery of two children, both of whom lived. One did not survive because she was too premature. The other lives today but was selected for this procedure.

Go back to the room again. You are watching this doctor with these hands that are holding a living child. The child fits, as you can see, very comfortably. The entire trunk and the body of the child fit into this physician's hand. The body is moving. But he finds the spot and thrusts the scissors into the base of the skull.

Nurse Brenda Shafer was assisting on a partial-birth abortion. By the way, she was not pro-life. She was working in an abortion clinic. But when she saw this and saw--her description--the arms and legs of the child shoot out like when you hold a little baby and you let it fall a little bit. The baby will react like that and shoot its arms and legs out, not knowing what is going on and not understanding what is being done to it because their ability to understand is limited to that. This baby doesn't have any time to understand because in that moment in which these little girl's or boy's arms spasm out like that, the baby is dead.

But the procedure doesn't end, the insult doesn't end, because the doctor then takes these scissors and pulls them, causing the scissors to pull the skull open--to break the skull apart so he can create a hole in the baby's head big enough for a suction catheter to be inserted into the base of the baby's brain.

They turn on this vacuum suction tube. Then they suction the baby's brain contents out--the cranial contents out. Because of the softness of the baby's skull, the skull collapses and the baby is then delivered dead.

As our majority leader, the doctor from Tennessee, said yesterday, the only advantage he can possibly conceive of for this procedure is that it guarantees the baby is dead before it is delivered.

We are not vague about the procedure we are describing. The court should not be under any misunderstanding about what we are attempting to bar. The language in this legislation is not really identical. If I were arguing for the plaintiff--that is their job. Their job is to go out and present the best argument they can. My guess is they will argue that it is not legally identical, and they will have three or four other arguments in the alternative that this court will not buy. That is the job of the lawyer representing their client.

Our job as Senators is to protect the decency of our society. It is to stop unnecessary brutality to the weakest among us--to stop procedures that are harmful to the health of mothers. There is not one physician who has testified who has said this procedure is the safest or is the best.

I ask this question again: As I repeated the last 3 days and I have asked for 7 years on this floor, give me a procedure, give me a case study where a partial-birth abortion is indicated, where it is necessary--this is the term, by the way, that the Supreme Court used as Senator Boxer's chart shows--where it is ``necessary and appropriate medical judgment for the preservation of the life or health of the mother''--where it is necessary. There is not one case, not one instance in 7 years when it has been brought to this floor, or to the floor of any State legislature, the floor of any courtroom, any hearing room. Not one case has been brought where it has been argued, because of the particular medical circumstances, it is medically necessary for this brutality.

Why? Because this isn't taught in any medical school. It isn't done in any hospital. It isn't done by any obstetrician. This is a rogue procedure for the convenience and economic benefit of abortionists and abortion clinics. Of course, it is not medically necessary. It is not even medically recognized. It is dangerous to the health of mothers.

Let me quote from the findings in the bill. By the way, this is all from congressional testimony. I understand the Senator from California wants us to commit this back to committee for congressional hearings. Here are the definitive hearings we have had on this legislation:

Those risks include, among other things: an increase in a

woman's risk of suffering from cervical incompetence--

As I said before, you have a 2-day period where the cervix is dilated. That leads to a variety of different risk factors, including infection, that could lead to cervical incompetence.

As the Senator from Tennessee said yesterday--the only physician in the Senate, who has delivered his share of babies--you do not put these kinds of instruments through the opening where the cervix is without having some consequence or potential consequences to the ability, long term, for a mother to carry a child.

As a result of cervical dilation making it difficult or

impossible for a woman to carry a subsequent pregnancy to

term; an increased risk of uterine rupture--

Why? because of those scissors we showed you before, that suction catheter, if not properly placed, could cause a lot of damage.

abruption, amniotic fluid embolus, and trauma to the uterus

as a result of converting the child to a footling breech

position--

Now, remember, any of you who have gone through the birth of a child--whether as a mother or a father or a relative--who have experienced the birth of a child, one of the things you always worry about is, is the child in the right position before delivery? Is the child in the right position? What is the right position? Well, head down.

What is one of the greatest fears of a mother and a father when they go in to deliver a baby? If the baby is not in the right position, and the delivery might have to be what? Breech. Breech deliveries are dangerous. They are potentially life threatening to the baby and could be very harmful to the mother.

What does this procedure deliberately do? It delivers the baby in a breech position. And:

a procedure which, according to a leading obstetrics

textbook, ``there are very few, if any, indications for [the

breech position] other than for delivery of a second twin;''

and a risk of lacerations and secondary hemorrhaging due to

the doctor blindly forcing a sharp instrument into the base

of the . . . child's skull while he or she is lodged in the

birth canal, an act which could result in severe bleeding,

brings with it the threat of shock, and could ultimately

result in maternal death.

Now, you have to ask a question, folks. Why are there people across this country in some of those organizations that are ``abortion rights organizations,'' and some Members here in the Senate coming here to argue to maintain the legality of a procedure which is a rogue procedure--not according to Rick Santorum, but according to the AMA, according to a variety of different organizations that are out there that are physician-oriented organizations. It is a rogue procedure--not taught in medical schools, not done in hospitals, not done by obstetricians--designed by abortionists for the convenience of the abortionist, that is a greater risk.

I show you a chart with Dr. Hern's comment. I show you a comment of an abortionist who does late-term abortions. In fact, he doesn't just do them, he is ``the'' expert in America. As they say, he wrote the book. This man wrote the book. He is the author of standard textbooks on abortion procedures, abortion practices, and performs many third- trimester abortions. This is what he said:

I have very serious reservations about this procedure . . .

you really can't defend it. I would dispute any statement--

listen--

any statement that this is the safest procedure to use.

This is not someone who supports my side of the argument, by the way. But what he is suggesting is, this is the least safe. In fact, we have umpteen medical organizations and physicians' testimony, saying: Well, you know, we want to keep it as an option. Many of these groups say: And we don't want doctors to have any restrictions on their right to practice. But, no, there are safer procedures, certainly.

But the evidence is overwhelming. This is the least safe procedure. This is the most dangerous procedure to the health of a mother. So it is the most dangerous. And it is never medically indicated, never medically necessary.

So, again, why? Why do you oppose this? Of all the alternatives, it is the most dangerous to the health of the mother. So it is dangerous to the health of the mother, and it is never medically indicated. Well, then, why would you support keeping it legal?

What is so important, what value that you hold, what thing is so precious that would require you to come here and defend a procedure that is never medically necessary and more harmful to women than other alternatives? What is it? It is not women's health. No, no, no, it is not women's health, because this is the most dangerous. And this is not medically necessary. So what is it?

Well, as the abortion rights groups have said, this is an assault on the right to an abortion. This procedure is an assault on the right. I would argue, most people do not even believe you could have abortions at this stage. When you look at this little, fully formed, living child, most people in America cannot imagine that abortions are performed on healthy mothers with healthy babies at this point in pregnancy, because the other side has said, for years: Well, Roe v. Wade only allows first-trimester abortions. They are limited afterwards. Wrong. Wrong--healthy mothers, healthy babies.

How do we know? Well, Ron Fitzsimmons, who is the director of the organization of abortion clinics in America, said: I lied through my teeth when I said this was performed in rare circumstances only to protect the health of the mother, on children who are deformed or mothers who are in danger. I lied through my teeth, he said. He said: We all know that these abortions are performed on healthy mothers and healthy babies. The vast majority--his quote--the ``vast majority.'' We have better than a vast majority.

The State of Kansas, the only State in the Union that tracks these kinds of abortions, requires a reason for the abortion on the form the doctor has to fill out after he performs it. In Kansas, there were 182 partial-birth abortions in 1 year--in a State the size of Kansas. How many were for the health of the mother? How many were because the mother's life was in danger? How many were because the mother's future fertility was in danger? How many were because the mother was in danger of grievous medical injury, physical injury? How many were because this was medically necessary? How many? None. Zero. The reason given for all 182 brutal executions at the hands of a physician: mental health. They had to check a box somewhere: ``mental health.'' Well, they have to say a health reason. You can't do it for no reason. But mental health, of course, is fear, anxiety, stress--certainly things we should be concerned about, but I do not believe at this stage in pregnancy a sufficient reason in the American public's eyes to do this.

Is stress a reason for this? Is this a justification in the eyes of the American public? Seventy percent--I daresay if we had every American in the room when one of these procedures was performed, God, I hope at least 95 percent would agree it was not justified.

This is an evil in our midst. One of the great things I believe about America and about my colleagues is when they see evil, they have the courage to stand up and fight it. This is the face of evil. Those hands, those healing hands are a corruption of medicine that we cannot allow to continue.

Please vote against this motion to commit, this motion to delay the banning of this procedure that could save some little baby somewhere in America from having to go through this.

I reserve the remainder of my time.

Mr. President, to address a few issues the Senator from California spoke about, I made a comment about her calling this bill identical, and she said she did not call it identical, that she called it legally identical.

I quote from the unofficial record from 6:51 p.m. Monday on the floor of the Senate, the Senator from California: The Supreme Court said in an identical bill, it is far broader than just one procedure--identical bill.

The Senator from Illinois just repeatedly said this is the exact same bill, exactly the same language--``identical bill.'' The Senator from California said that is correct. So she is saying this is an identical bill, and then she suggested we need to send it back to committee because we need hearings because it is a changed bill. Which is it? Is is a changed bill or an identical bill?

It is not an identical bill, I concede that point to her. It is different. The language is substantially different. The Senator from California said: We meant to cover more than one procedure with this language.

Why would we want to do that? The Supreme Court said: The reason we are striking down your language is that we believe it covers more than one procedure. So we are going to craft language so the Supreme Court can come back and say, well, it covers more than one procedure?

Maybe my colleagues think we are not serious about banning this procedure. Let me assure them, I am serious as a heart attack about banning this procedure, and we have crafted language to do just that, and only that.

The language is different. It is not identical to the Nebraska statute. The Nebraska statute said, as the previous bill we considered on the floor, that a partial-birth abortion is performed in which the person performing the abortion deliberately and intentionally vaginally:

delivers some portion of an intact living fetus until the

fetus is partially outside the body of the mother.

The new language says:

deliberately and intentionally vaginally delivers a living

fetus until, in the case of a head presentation, the entire

fetal head is outside the body of the mother, or, in the case

of a breech presentation, any part of the fetal trunk--

That means the arms, legs, trunk--

past the navel is outside the body of the mother.

Now, that is substantially different. It is not an identical bill. It is much more specific, to address the very issue the Court wanted us to address in the Stenberg v. Carhart case. So we are very clear. This is not vague, and this is an honest and sincere attempt to meet the constitutional strictures of the Supreme Court decision.

I will address Senator Durbin's and Senator Boxer's point on some of the special cases, but the Senator from Minnesota is in the Chamber and I yield 10 minutes to him.

How much time remains?

I yield to the Senator from Illinois 7 minutes.

I thank the Senator from Illinois for his support both here on the floor and things that we have done off the floor to get support for this legislation. He has been one of the champions. I appreciate his support as well as that of the Senator from Minnesota, his very heartfelt support for this legislation and the very touching personal story he related to the Senate.

How much time is remaining on both sides?

Mr. President, just to reiterate, I do not believe we should support the motion to commit. As I stated before, this is a piece of legislation we have had on the Senate floor. This is the fifth debate on the floor of the Senate. The Judiciary Committee has held two hearings and reported the bill out.

It is not exactly the same. As I said before, it is not identical. We have addressed issues of health and vagueness, but the substance is the same. We are talking about the same thing. We are talking about changing roughly 20 words in the statute. I think that is a small enough change for Members of the Senate to digest without the Judiciary Committee going through and giving its opinion.

The Senator from Utah, Senator Hatch, came to the floor and addressed the issues. Other members of the Judiciary Committee have been here and done likewise, many of whom are cosponsors of this ban.

I believe this is, frankly, going to delay consideration of this legislation. It will not have any impact or import in the long run to our deliberations. I think Members of the Senate are fully able to make this decision at this time being well versed after this debate.

We have had a good debate over the last 3 days. We will continue to do so, prior to passage. I think it is time to move forward. I hope my colleagues will join me in opposing the motion to commit.

I yield the remainder of my time.

Mr. President, I want to make four quick points. I had three and a half points as reasons to oppose the amendment, but now I have a full-fledged four reasons because of the modification that was just submitted.

No. 1, this amendment is in the form of a substitute, so the underlying partial-birth abortion statute is gone. We do not ban partial-birth abortions under this procedure. It is gone. This procedure remains legal in the law of the land. This Durbin amendment is a substitute. If you want to ban partial-birth abortions, you cannot vote for the Durbin amendment because it eliminates the ban. That is No. 1.

No. 2, it talks about this is a postviability ban. The problem with that is--there are many problems--No. 1, viability is not defined in the legislation, and it is solely up to the discretion of the abortionist performing the procedure.

I ask unanimous consent to have printed in the Record the chart that I have on survival rates.

And even up to 32, 33 weeks, you still have a 1, 2, 3- percent chance where the baby would not be viable. So you have up until 32, 33 weeks to basically say the child is not viable. If that is the case, this statute is not operative. You cannot even come in under it. There is nothing. The statute does not exist. All you have to do is say it is not viable. So you create an exception that swallows up the entire ban. That is No. 2.

No. 3, even if, by some point, the abortionist will say it is viable, and then proceed with an abortion--which I cannot imagine any physician, in their right mind, doing; but assuming they would say it is viable and proceed with an abortion--they just have to say there is a risk of grievous injury to her physical health. The operative word here is ``risk''--a 1-percent risk, a .5-percent risk, a .001-percent risk--any risk.

Now, ``risk'' is, again, not clearly defined and is open. What this statute does say is it is subject to a second opinion from a doctor. Great. The problem is, there is no penalty anymore. That was half a problem because I thought the penalties were rather weak. Now, with the elimination of any potential prosecution under perjury, there are no penalties.

The Senator from Illinois says there could be a losing of your license. Well, that is not what his substitute says. It says the State has to develop procedures and requirements for what would happen if these things are violated. It does not say license revocation. It does not say that at all. It says they have to develop standards. And it could be suspension for a day for the first offense, 2 days for the second offense--half a day--it could be whatever the State would require it to be. And for the second offense, it is not that it must be revoked, it is not a must. It is an either/or. They could assess a fine. And the fine could be a dollar. It says up to $250,000, but it could be a dollar.

So now, having removed any criminal sanction, you are left with it being completely open-ended, with potentially no consequence for someone not telling the truth in this circumstance.

There are a whole host of other reasons this amendment does not work. But this amendment is fatally flawed. It was poor, in my opinion, as a substitute. But now it does not even have the criminal sanctions as even one potential hope for getting maybe some very late, third- trimester abortions banned. So I just suggest, while I understand why the Senator from Illinois modified his amendment--to try to get more folks to be supportive of his amendment--in so doing, he guts whatever is left of this amendment to actually ban any abortions in this country. As a result of that, I strongly oppose the amendment.

Mr. President, I yield 15 minutes to the Senator from Ohio.

Mr. President, I want to review what the Senator from Louisiana said with respect to abortion. I think the Senator from Louisiana expressed her view as to what Roe v. Wade means. I sincerely believe that she feels that way. She would like the law to be that way, and I think most Americans would like the law to be more toward her direction than where it really is.

The law is pretty clear--Roe v. Wade and the companion cases--that in fact the right to an abortion is, in America today, at any time for any reason.

That is what happens. You can cite the case in Roe that talks about the issue of viability, but there was the Doe v. Bolton case that was decided with it; it was read together.

In Doe v. Bolton, the Court ruled abortion could be performed after fetal viability if the operative physician judged the procedure necessary to protect the life or health of the woman. That is where we come down, health of the woman. Under Doe v. Bolton, the health of the woman is anything--is anything. The Senator from Ohio just read this, and I will read it again:

Medical judgments may be exercised in light of all

factors--physical, emotional, psychological, familial, the

woman's age--relevant to the well-being of the patient. All

these factors may relate to health, and this allows the

attending physician the room he needs to make his best

medical judgment.

There is simply no restriction there. There is no limitation there, and there are people on the Court today who have interpreted that decision consistently with that no limitation. In fact, I would argue the Court is going even further in that direction. There is some scary language--this is the Carhart case--there is some downright scary language in this decision. I just wish the public understood how absolute this right is, how unfettered this right is, and how absolutely resistant the pro-abortion side is at keeping that pure right in place--unrestricted, unfettered right in place. But we are going even further than that.

We have a case here where we have two Justices of the U.S. Supreme Court, Justice Stevens and Justice Ginsburg, in a concurring opinion-- thank God it is not the majority opinion--but in a concurring opinion in the U.S. Supreme Court, this is what Justice Stevens says, and this is what the Senator from Louisiana was saying:

The liberty clause--

Oh, how words can be twisted.

The liberty clause in the fourteenth amendment includes a

woman's right to make this difficult and extremely personal

decision, makes it impossible for me to understand how a

State has any legitimate interest in requiring a doctor to

follow any procedure other than the one he or she reasonably

believes will best protect the woman in her exercise of this

constitutional liberty.

Do you know what this means? This means he can do anything he wants, any procedure, none of them reviewable. That is why we had to pass a bill last year called the Born Alive Infant Protection Act. Why? Because Justice Stevens, one of the nine imperial Judges on the U.S. Supreme Court, unelected, had decided that if a doctor

wants to deliver a live baby and then kill it, that is a procedure. Do you know what. Justice Stevens said that if that is what the doctor believes, fine. That is how far we are going. That is the corruption of this entire issue of abortion. It is just so corrosive that it takes people who see words such as ``liberty'' and turns them into murder. Liberty means now murder, in the eyes of Justice Stevens and Justice Ginsburg. Oh, this is such a caustic issue that just corrodes the essence of the spirit of America.

Senator Durbin--I have said it repeatedly--I believe in good faith is trying to put some restriction in place to what has gone off. By the way, Justice Stevens, unfortunately, and Justice Ginsburg are not alone. You have Peter Singer, whom the New Yorker magazine calls ``the most influential living philosopher''--the most influential living philosopher. As you will hear these statements, you may wonder, no, this is just some kook. No, Professor Peter Singer, distinguished chair, where? Princeton University. Peter Singer has argued that when the death of--what he argues--I will not quote him. I will submit this for the Record so there will be plenty of quotes in here because I do not have much time.

What he argues is that a child once born should be allowed to be euthanized up until--he has updated his opinions here. He believed it was only waiting 28 days after birth before deciding whether the baby has rights, but now he has said that is an arbitrary figure and it should be--``Oh, I think it should be somewhat short of 1 year but the point is not for me or anyone else to say, it should be up to the parents and, of course, the doctor.''

You say this is crazy, allowing a parent or society, in the case where the parent is not there, to euthanize a child; that is crazy. I can guarantee, go back 50 years and maybe there were debates on this floor that thought abortion would be a crazy thing and that could not happen in our society; we could not have 1.3 million abortions.

I heard the Senator from California, and I hear this over and over: We want abortion to be safe, legal, and rare. Twenty-five percent of all pregnancies in this country end in abortion. By anybody's estimation, is that rare? Twenty-five percent, is that rare? Forty- seven percent of abortions in this country are a woman's second abortion or more. Is that rare? Is there something corrupting our society here?

I understand the Senator from Illinois is trying to get at least some piece of it, but he fails. He fails. He fails on four counts, and let me quickly go through them, and more actually, the Senator from Ohio listed a few more.

Four major counts: No. 1, there is a substitute. It eliminates the ban on partial-birth abortion. Most partial-birth abortions are done in the 20- to 26-week area where there is a question of viability. You have--and I entered those in the Record--you have up to 75 percent viability at the time of 26 weeks. But, again, it is a substitute that eliminates all previous viability abortions. No. 1.

No. 2, it does not define viability, and it leaves it up to the doctor to determine what is viable. If the doctor says this child is not viable, there is no review, and as soon as you say it is not viable, the statute does not apply. So all you have to do, if you want to have an abortion, is say it is not viable; nobody has to review it and the statute is not operable.

No. 3, risk of grievous injury to the physical health of the mother. Again, it uses the term ``risk.'' It does not say how much risk. It can mean any amount of risk--one-half of 1 percent risk.

We have Dr. Warren Hern, who wrote the textbook on third-trimester abortions, the leading expert in this country, saying:

I have very serious reservations about this procedure. You

really can't defend it.

He also has a quote that says he would certify that every pregnancy has a risk of grievous physical injury to a mother--every pregnancy. What if he makes that statement and it is not true? What happens? The Senator from Illinois had criminal penalties potentially for perjury. Those are now removed from the bill. There is no criminal problem with that physician or the other physician who has come in to look at this from having any criminal sanctions.

What are the sanctions? He could lose his license. Not really. The State has to promulgate regulations under this statute to suspend or revoke a license. It does not say they have to revoke it or say how long the suspension is. It could be 1 day. I suspect in States such as New York, Connecticut, and Massachusetts, where abortions are overwhelmingly supported, you could have 2 hours of revocation, or something like that. It would be a ridiculous standard.

The bottom line is it mandates no revocation or suspension of license of any weight, and even at that, it is revocation or suspension or a fine up to $100,000 in the first case, $250,000 in the second, but it could be a dollar.

Again, there is no floor in the amount of money. So there really is the potential for no consequences in a lot of States, or maybe even in most States. It is a substitute. If one is against partial birth, they cannot be for this amendment. If it is understood that viability kicks one out of this statute to begin with, and it is only the decision of the doctor that determines viability and there is no review of that, that makes this statute basically inoperable, I would argue, for every abortion that is done in America.

Then if one gets in, there is the risk question, which again nullifies, really, any weight on the physician because risk can mean such a small amount of risk to make it almost inconsequential. Finally, there is no penalty if all that does apply.

So I suggest that while I believe the Senator from Illinois was trying to do something to attack what I described as an unfettered right to an abortion is the preeminent right in America--

I thank the Chair.

I move to table the Durbin amendment and ask for the yeas and nays.

Mr. President, we have debated this issue on the floor of the Senate for the fifth time. The issue is the same. There is a slight variation in the language of this bill--some 20 words. I think the Senate is perfectly capable of dealing with these changes and to address the issue of vagueness. I don't believe that after two hearings of the Judiciary Committee, after having gone through the committee on a couple of occasions and being debated here now for the fifth time, we need to commit this bill back to committee.

It has been asserted on the floor by the Senator from South Dakota that we are bypassing the committee, as was complained about in the past. I would just say that we are bypassing the committee on a bill that is this size with 20 different words--not this, which is the energy bill that bypassed the committee last year or the agriculture bill that bypassed the committee last year or on the prescription drug bill.

This has 18 titles in it.

I think there is a fundamental difference between asserting bypassing a committee with a bill which has been on the floor on five different occasions and one that is a brandnew piece of legislation with 18 titles and some 400 or 500 pages.

The Senate is ready to vote. The issue is well known. I hope we defeat the motion to commit and proceed to finish the bill in a timely manner.

I reserve the remainder of my time.

Mr. President, the facts are as evidenced from the Judiciary Committee hearings, which basically have not changed. The facts are the same. The procedure that we are attempting to ban is riskier and has a greater likelihood of causing all those things than the alternative procedures which are taught in medical schools, done in hospitals, by obstetricians. This is not done in hospitals, not done by obstetricians, not taught in medical schools.

This is a rogue procedure that was designed for one reason. The abortionist who designed it said why. It was designed so he could do late-term abortions in 15 minutes as opposed to 45 minutes, so he could do more in one day; that is, all of these health risks are, in fact, bogus. It is a riskier procedure.

Mr. President, I ask unanimous consent that following the disposition of the Boxer motion to commit, Senator Harkin be recognized to offer an amendment, the text of which is at the desk, provided that there be 2 hours 30 minutes for debate, equally divided in the usual form, prior to a vote in relation to the amendment, with no second-degree amendments in order prior to the vote.

I further ask that following the disposition of the Harkin amendment, Senator Feinstein be recognized in order to offer an amendment, the text of which is at the desk, provided that there be 2 hours for debate, equally divided, in the usual form prior to a vote in relation to the amendment, with no second-degree amendments in order prior to the vote.

I further ask consent that following the disposition of the Feinstein amendment, the bill be read the third time, with no intervening action or debate. I finally ask consent that at 9:30 a.m. on Thursday, provided that the bill has been read a third time, the Senate proceed to a vote on passage of the bill, again with no intervening action or debate; provided further that any second-degree amendments to the aforementioned amendments be relevant to the first degree.

I further ask unanimous consent that following that vote, the Senate proceed to executive session and vote on the confirmation of Calendar No. 53, Thomas Varlan, to be U.S. District Judge for the Eastern District, with no intervening action; further, that following that vote, the President be immediately notified of the Senate's action, and the Senate proceed to a period for morning business until 11:30 a.m., with the time equally divided in the usual form.

Finally, I ask unanimous consent that at 11:30 a.m., the Senate resume consideration of the Estrada nomination in executive session and the time until 12:30 p.m. be equally divided in the usual form, with a vote on the motion to invoke cloture occurring at 3:30 p.m.

The Harkin and Feinstein amendments will be voted on this afternoon or this evening potentially, and tomorrow morning a vote on final passage as the first order of business when we reconvene.

Yes, ``further that.''

We can accept that.

I am fine with giving him an up-or-down vote.

I thank the Senator from Nevada. The Senator hit the nail on the head, the head on the nail, whatever the case may be. The fact is, the Senator from Nevada has been very cooperative. This is not an extraordinary request. Even though I rather would have a motion to table, I am glad to accommodate the Senator. I yield the floor.

Mr. President, I rise in opposition to this amendment. Before I make a statement, I encourage Members who have statements on this amendment or on the bill--we have roughly 2 hours of time remaining to debate this amendment, but obviously I encourage anybody who has statements on the bill itself to come down. Senator Kennedy is in the Chamber, Senator Harkin and myself. So there is ample opportunity and time. There is not much of a wait.

Does the Senator from Massachusetts wish to proceed?

The Senator from Massachusetts needs a couple of minutes before he is ready. Therefore, I yield 2 or 3 minutes to the Senator from South Carolina for a statement.

I say to the Senator from South Carolina, I appreciate the comments.

The Senator from Iowa read the famous clause out of the Casey decision, determining one's own concept of meaning of existence, of the universe, of the meaning of the universe, of the mystery of human life. The Senator from South Carolina hit the nail on the head. If everyone has their own right to decide what life is, what existence is, what the universe means--if we are not bound at all by any kind of societal norms, if we have the right to decide all these things, the kids who rushed into Columbine had it right because they said: I am law. My view of the world is what counts and that is all that counts. That is what this clause says: What I say goes.

That is what this clause says. That is where we are. That is where the line of cases have taken us. It is simply about our brute force, our positive rights. Society does not matter; it is what we want. The Congress should not be involved in this. It is what you want.

That is not the country that our Founding Fathers put together. That is not the Constitution they drafted. That, by the way, is why the right to abortion is not written in the Constitution.

This is a slippery slope we are heading down. In deference to the Senator from Massachusetts who is in the Chamber, I will define that slope momentarily.

I yield the floor.

I yield 15 minutes to the Senator from Nevada.

Will the Senator yield for a question?

Yes. The Senator from New York said that the women she had in her office who had late-term abortions--you characterized it that they would be ``forced to carry their children to term'' if this bill passed. Do you stand by that statement?

So you believe if this legislation passes outlawing partial-birth abortion, no late-term abortions would be available?

OK. I suggest that the Senator from New York examine the language. It is very clear that this is one particular kind of abortion we have addressed, and we have addressed the vagueness, as put forth by the U.S. Supreme Court. And there are other techniques available for abortion that are late term in nature, and this bill would in no way stop other abortions. In fact, the previous speaker on the Democrat side, Senator Kennedy, made that very point. He made the point that this will not stop abortions.

I respect your feelings and I also respect Senator Kennedy's. You both oppose the bill and you have opposite opinions on this issue.

I thank the Senator. I gave her an opportunity to answer, and I have a couple more questions. No. 1, you suggested that this procedure was extreme. Does the Senator know the most recent Gallup polls--the polls consistently have shown that the banning of this procedure is supported by anywhere from 65 to 75 percent of the American public? What is your definition of ``extreme''?

So you would suggest that something that is supported by--you are going to maintain your

comment that something that is supported by 70 percent of the American public is extreme?

So you don't think the American public understands this issue well enough to be able to form a judgment--I think that is what you are saying--even though we have debated this issue and it has been very much in the literature across America now for 7 years. There have been referendums in States and wide debate. You just don't think the public understands it. I beg to differ with you on that. I think I could stipulate that something that has the support of 70 percent of the public is, by definition, not extreme. So if you don't agree, that is your position, and I respect that.

The other thing you said was the chart I had up is ``deceptive.'' I am very curious about how you came to that conclusion. Is it deceptive because it shows a perfectly formed baby?

Is the Senator aware of Ron Fitzsimmons who runs the Association of Abortion Clinics? He has said, when the argument was made by many of the people Senator Boxer and Senator Murray and yourself referred to, who came forward and talked about this being medically necessary or necessary because of complications late in pregnancy--Ron Fitzsimmons said he lied through his teeth when he gave that argument? That was his term. He said, ``I lied through my teeth'' that this was the case. He said it is a dirty little secret, and we all know--those are his terms--that late-term abortions are performed, and the vast majority of late-term abortions are performed on healthy mothers with healthy babies.

So do you believe it is deceptive to put before the American public the typical case of where a partial-birth abortion is performed, or would it be more deceptive to try to convince the American public that this is done for medical reasons, or on sick babies in the majority of cases, when it is not true?

Which would you say is more deceptive?

I will challenge you to find anyplace in the record over the last 7 years where I said that was never the case. I have never said there are not difficult cases. What I have said repeatedly, because I wanted to be truthful with respect to the factual situations with which we are presented on the issue of late-term abortions and the instances in which partial-birth abortions are used--I refer the Senator to the State of Kansas where they have to report the reason for a partial-birth abortion; 182 were done last year, or the year before, and of those 182, none--zero--were done because of a problem with the child or a physical problem with the mother. They were classified as mental health.

So I suggest to the Senator that those in the abortion industry themselves say this is the typical procedure on the typical baby. There may be--and there are--a small number of cases that are late-term where you find out the child within the womb has a fetal abnormality and may not live. I just suggest--and you used the term--where is the brainless head? Where are the lungs outside the body? I will just say I will be happy to put a child with a disability up there. But, frankly, I don't see the difference in my mind--and I am not too sure the public does-- with respect to that being any less of a child.

It is still a child, is it not? Maybe it is a child that is not going to live long, but do we consider----

In a moment. Do we consider a child that may not live long, or may have an abnormality, to be less of a child? Is this less of a human because it is not perfect? Have we reached the point in our society where because perfection is so required of us, that those who are not perfect don't even deserve the opportunity to live for however long they are ticketed to live in this country?

Are we saying we need these kinds of infanticides to weed out those who are not going to survive or those who are not perfect, and that somehow or another we have to have a method available that we only allow perfect children to be born? If that is the argument, I am willing to stand here and have that debate. If that is what you want us to show, I am willing to stand and show that.

I suggest this is the typical abortion that goes with partial-birth. That is exactly what the industry says is the case. If the Senator would like me to find a child that has a cleft palate, I can do that. That doctor from Ohio performs a lot of abortions. He says he did nine in one year because of that. If she would like me to show a case of spina bifida, I can do that. That may be a reason someone has to have a late-term abortion.

I would be happy to show those, but those are the exception rather than the rule, and I think it is imperative----

I will be happy to. It is imperative upon us to present the standard, the predominant case in which partial-birth abortions are done, and that is what we are doing. I will be happy to yield for a question.

Fine.

No, if----

I understand the Senator's point. I guess my point in rebuttal is that if you want to create a separation in the law between those children who are perfect and those children who are not----

Please, let me finish. If a child is not perfect, then that child can be aborted under any circumstances. But if that child is perfect, we are going to protect that child more. I do not think the Americans with Disabilities Act would fit very well into that definition. The Americans with Disabilities Act--of which I know the Senator from Iowa has been a great advocate, and I respect him greatly for it--says we treat all of God's children the same. We look at all-- perfect and imperfect--as creatures of God created in his image.

What the Senator from New York is asking me to do is separate those who are somehow not the way our society sees people as they should be today and put them somewhat a peg below legal protection than the perfect child. I hope the Senator is not recommending that because I think that would set a horrible precedent that could be extrapolated, I know probably to the disgust of the Senator from Iowa, certainly to me.

No, I do not have an exception in this legislation that says if you are perfect, this cannot happen to you; but if you are not perfect, yes, this can occur. The Senator is right, I do not.

I certainly respect the difference of opinion the Senator and I have on the underlying issue of abortion. Again, I think people can disagree on that. I, frankly, do not agree there should be a difference between children who are ``normal,'' in society's eyes--I do not know what that means anymore, what a society sees as normal--and those who happen to have birth defects, severe or not. I do not believe we should draw distinctions.

To liken a ban on a brutal procedure such as partial- birth abortion to the forced abortion policies of China is a fairly substantial stretch, and I do not accept that as an analogy. I do not think it holds up under any scrutiny.

With respect to the other issue, let the record speak for itself.

On the Senator's time. I have been more than generous on my time.

I thank the Senator from Iowa.

I appreciate that. Again, that is a good open item for debate. I would suggest that most Americans--and that is why this debate the Senator from Iowa has brought up is so important--do not understand what the breadth of health exception means. I suspect most Americans understand when they hear health exception, they believe there is some imminent danger to the health of the mother. Of course, that is not what Doe v. Bolton says.

Doe v. Bolton talks very broadly of health. I will be happy to give the actual language. Doe v. Bolton is very broad on health to include everything from emotional and mental health to familial health, age of the mother. It is as broad a term--in fact, the courts have interpreted it to mean anything. It is an exception that, frankly, swallows up any limitation, restriction on abortion.

Does the Senator from Iowa have a question?

Yield on mine. If I need time, I will let the Senator know.

Anencephaly is no brain, just a brain stem.

If I can respond to the Senator from Iowa, the Senator from Iowa brings up a very valid point. We reviewed this over and over in previous years, and I will address it again.

No. 1, there are cases where late in pregnancy there are health considerations that may cause the child to have to be separated from the mother. There is no question about that. The question is, Is there a need for this procedure? First off, is there a need for an abortion? I think most obstetricians would tell you, no, there is no need for an abortion, but there is a need for separation.

Separation can be through a normal delivery. It can be through a cesarean section. So separation is necessary; abortion is not necessary.

The point I am making is this procedure is never medically necessary. I have repeated that over and over, and I have asked the Senator from California and the Senator from Washington, and many others, if they can come forward with a case where this procedure is medically indicated, medically necessary. They have not come up with a case because there are none.

There may be cases that the Senator from Iowa has discussed where there may be a need for separation, but I would argue not necessarily for abortion. If there is such a case--and I am not that much of an expert to know that because I am focused on this procedure solely, but if there is such a case for abortion, then the answer would be there are other, safer--this is what I underscore--procedures done in hospitals, by obstetricians, who are trained in medical schools.

This procedure is done not by obstetricians, not in hospitals, not by doctors trained in medical schools.

I ask the Senator, if it was his daughter, would he want to send her to someone to have this procedure who is not an obstetrician, not in a hospital, someone who is not trained in medical schools or would he rather have her go to a board-certified obstetrician in a hospital and have a procedure that is taught in medical schools and has been peer- reviewed?

What would the Senator prefer?

I understand the Senator from Iowa. I would say if the Senator wants his daughter to go to the hospital and have an obstetrician give her the best procedure she wants, let me assure the Senator she will never have this procedure, because this procedure is not done by obstetricians and hospitals. It is not done.

I suggest to the Senator what we are doing is getting rid of a rogue procedure that has been demonstrably testified to that this is contraindicated. The AMA: Bad medicine. Their term, not mine.

I am saying this is a rogue procedure that is outside the medical arena. This is outside the standard of care.

The Senator knows about the issue of standard of care. He is involved greatly in health issues as the ranking member of the Health Subcommittee on Appropriations. I know he cares deeply about that and he knows the issue of standard of care.

Nowhere in the literature is this considered to be standard of care. As a result of that, I make the argument--in fact, I have made the argument--that this procedure is not healthy to women and as a result should be banned because it is the least safe procedure, and it is not appropriate.

I will answer one more question and then I would like to speak.

No, I am not going to support the amendment of the Senator, but I would like an opportunity to speak.

Madam President, how much time is remaining on each side?

Madam President, first, I say again that in many of these difficult cases, if not all of them, to my knowledge--and I would be curious to hear if there is a case I am not aware of where there needs to be a separation of the mother from the child. I am not aware of any case, and I would certainly be anxious to hear any testimony to the contrary where separation necessarily means abortion. Separation does not necessarily mean abortion, and there are other ways to protect both the health of the mother and the health of the child. As a society, I think if that is possible, then that should be our preference.

Let me go back and talk about the overall issue of Roe v. Wade and where we have come as a result of that. Roe v. Wade was decided in 1973. Maybe the biggest problem I have with Roe v. Wade was that abortion was a matter that was decided by the people and by its elected representatives. It was, as every other issue is in America, decided in the public square, decided by this kind of debate.

I think this is wonderful. I think the people need to hear this. We do not get enough debate on the issue of abortion. It has sort of been put away in a corner. Why? I would argue this is the great moral issue of our time. It parallels very closely the issue of slavery back in the early 1800s, and the reason is because it is really the same issue.

The slavery issue was: Here is the African American, here is the black man and woman, and what we said in this country was we could look at this person, we could see this person, but under the Constitution it was not a person. We said this individual, this human being, was not conferred personhood under the Constitution. That is what slavery was all about. As a result, that person was property. What all of us knew to be a human being became property, and we had to fight a war to eventually overturn that.

Where are we with the issue of abortion? The child in the womb is not considered a person under the Constitution. Now, we can see it in a sonogram. That is one of the things that makes partial-birth abortion such an important debate because the baby can really be seen. One can see this is a human being; it is nothing but. But according to the Constitution, this child is not a person.

It is the same debate. It is the same argument. William Wilberforce in England, when he fought to overturn the slave trade, put together a poster. It was a picture of a black man. Underneath the picture, it said: Am I not a man?

I would simply say, look at this chart and under this picture could we not say: Am I not a child?

According to Roe v. Wade, according to the law of this great land, the answer to that question is, emphatically, no, and look what we can do to you.

Why? Because you are property. You are like the slave. You have no rights.

How we have twisted our Constitution, which is based on life and liberty. What is first, liberty or life? Think about that. Life, liberty, and the pursuit of happiness. Do we think the Framers sort of just threw those words together? Do we think they could have said, happiness, liberty, life, they sort of played around and said, which one of these is the right one? Did they put them in order for any reason? We can bet they put them in an order for a reason.

Can someone have liberty without life? No. There is no way possible, if one does not have the right to life, that they can have any liberty.

Can someone have true happiness without liberty? No. Life is a prerequisite to liberty. But what have we done in the case of Roe v. Wade? We have taken life and liberty and we have flipped them.

In Roe v. Wade, the Court put liberty ahead of life, and said the rights of a woman, liberty--this is the liberty clause, this is the grounds from which Roe v. Wade was derived. Of course, the right to abortion is not in the Constitution. But where does it come from? It comes from the what clause? The liberty clause.

So we took liberty and moved it ahead of life. What are the consequences of that? Obviously, we know what the consequences of that are for the child. What are the consequences of that for all of us? The consequences of that for all of us are that now one's freedom to do what one wants trumps someone else's right to exist.

In this case, it is just this little child in the womb. But if we set this precedent, which we have, that my right to my liberty trumps another's right to life--the Senator from New York talks about the slippery slope. Oh, what a slope we are on now. The Senator from New York talked about, you did not show the deformed child. Well, there is a guy in Princeton, NJ, by the name of Peter Singer who talks just about that issue. He talks about the deformed child. And what does he say? He says Roe v. Wade has it right. They put liberty in front of life, and that is right because some people are not worth having around. Yes, that is what he says. Is this guy a kook? Is this guy some sort of flake who is out there in the ether? No. He is a professor. Is he a professor at XYZ State University at Blackwater, PA? No. He is at Princeton University--a ``distinguished'' chair at one of our great universities.

What does he say? He writes: I should think it should be somewhat short of one year.

What does he mean, ``somewhat short of one year''?

Somewhat short of 1 year after birth that we should be able to--what? Kill these little deformed children who happen to be born. Why? Well, because they are not really useful. Their life doesn't mean much. Our liberty means more than their life. Here again, moving life in front of liberty. Oh, what a tangled web we weave.

This is the product of Roe v. Wade. This is the product of the Court taking from us who understand ordered rights--that rights are put in order for a reason. Our Founders had it right.

Those who proclaim the virtue of abortion as a right said this would be a blessing to our society. They said: This would be a great blessing. So many positive things will happen. Divorces will come down. Spouse abuse will come down. Infant abuse will come down. Child abuse will come down. Abortions, of course, will go up, but the benefit is domestic violence will go down, teen pregnancy will go down, infanticide will go down, abandoned children will go down. And of course, none of them did. None of them did. Quite the contrary. All of them have at least doubled since 1973 as a percentage.

So this nirvana that getting rid of these--because, see, they argue that since we are going to get rid of 1.3 million children--25 percent of all pregnancies end in abortion--since we are going to get rid of all these unwanted stresses in people's lives, problems in people's lives, then people will be better off, people will be happier, people will be more free; people won't do bad things because they won't have this stress that complicates their life.

But is that the lesson that people learn? No. Sadly, people are much smarter than that. They learned from the leaders of our great country that the value of life was diminished. And they learned from our great country that their personal liberty was more important than your life. Their liberty, their rights, trump you. That is what they learned.

As I mentioned earlier, that is why the two guys ran into Columbine, toting their guns and shooting people, screaming, ``I am the law,'' because that is what Roe v. Wade taught us. They taught us we can put down our neighbor, just like in the early years of this country we could put down the black man and woman.

We are on a very dangerous practice. I know we will celebrate and affirm Roe v. Wade. Our colleagues will support it because it is the law of the land and it is well accepted. I accept the fact that in this body I am a voice in the wilderness. But I will speak. This is not the most popular thing to come and talk about. These halls are not filled with people who want to speak on this issue. I understand, this is a tough one. You make a lot of people mad when you get up and talk about abortion because it is personal. I know. It is personal. But we have to step back.

I thank the Senator from Iowa for giving us an opportunity to step back and look at what we are doing, look at what we have done, and look at what may come of us if we do not turn away and give back to the people.

I was at a briefing the other day, and someone talked about the Iraqis and said: We are worried about them transitioning to democracy because historically they like being ruled. And I thought to myself: Just like Americans on abortion. They like being told what their position should be. They like the Court taking it and ruling. They do not want to have to think about it. They know they do not like it, but they do not want to talk about it, think about it, vote. They want someone else ruling for them. It is easier to give someone else your rights and let them make decisions for you. It makes your life a lot simpler.

I argue it is not making your life much better. No, what Roe v. Wade has done is separate the person, the human being--and there is no doubt, from the moment of conception this is a genetically human organism. It is human, fully human. Nothing is added. It is fully human. And it is, by definition, alive. How do we know? Because the definition of life is something that metabolizes, and this clearly is metabolizing. It is human life.

What did Roe v. Wade do? It took away the instantaneous bonding of human life and human person under the Constitution. It separated them. I repeat this for emphasis. It separated the human person from the human being. That precedent is now the law of the land. And you know what happens with precedent in this country; it is followed. Today for the unborn, tomorrow for--watch out. Watch out.

I remember in one of the early debates on this bill, I got an e-mail from a man from London who said he was sitting there watching the debate, hearing people talk about all these people with disabilities who needed to be destroyed through partial-birth abortion. Not because the mother's health was in danger--because they just were not perfect. He said: I am sitting in my wheelchair as a disabled man with spina bifida, knowing that they are talking about me. They are talking about me.

Today the child in the womb. Tomorrow?

I yield the floor.

Madam President, I yield 10 minutes to the Senator from Kansas.

Madam President, I want to address a couple issues and then make a closing argument.

One issue I want to address is the point Senator Boxer made, that there were 5,000 deaths of women because of abortions prior to Roe v. Wade.

Let me give a quote from the former medical director of the National Association for the Repeal of Abortion Laws, NARAL:

How many deaths were we talking about when abortion was

illegal? In NARAL, we generally emphasized the frame of the

individual case, not the mass statistics, but when we spoke

of the latter it was always ``5,000 to 10,000 deaths a

year.'' I confess that I knew that the figures were totally

false and I suppose that others did too if they stopped to

think of it. But in the ``morality'' of our revolution, it

was a useful figure, widely accepted, so why go out of our

way to correct it with honest statistics? The overriding

concern was to get the laws eliminated, and anything within

reason that had to be done was permissible.

So, obviously, it was not just used to get the law eliminated. It continues to be used to substantiate the law's existence. And what does this law do? It does many things. Let me summarize by mentioning two.

It takes from the American people the people's legitimate right to determine this crucial, moral issue. It was usurped from the people by fiat--not elegantly, I would suggest, but inelegantly by nine Supreme Court Justices, who decided to lord over the States and their elected representatives of the people their version of the world, their world view, their hackneyed interpretation of a constitutional liberty.

That is what happened with Roe v. Wade. It took from the people rights to decide their own fate, and rested it in an unelected body, at that time of nine old men. That is one thing Roe v. Wade did.

The second thing it did is it took a page, unfortunately, from our past, a page we thought we had learned a lesson from; and that is the page of the history of slavery.

Slavery was a situation in our country where we got our priorities out of whack. Our Founding Fathers said, we are endowed by our Creator with certain inalienable rights: life, liberty, pursuit of happiness. Ordered for a reason, for without life there is no liberty; without liberty, there is no happiness. They didn't say happiness, life, liberty; liberty, life, happiness. No, they are ordered for a reason. Life is a prerequisite to liberty.

But in the case of slavery, we put the liberty of the slave owner ahead of the life of the slave and turned the slave into property. We put the rights of the white person in America above the life of the black man or woman. We learned our lesson in a very painful way, but we didn't learn it well enough. The old saying: If you don't learn from history, you are doomed to repeat it. Here we stand, arguing this repetition of history and just like in this Hall, 150-plus years ago, people from areas of the country argued that this was not a reordering or a misordering of liberty. And so they do again today.

What we have done is put the liberty rights of people ahead of the life right of the unborn child. We have misordered our liberties. The pain that it has showered across the land of 40-plus million abortions and countless other maladies that have gone on, horrible social consequences result from that. We need to get our liberties back to where our Founding Fathers put them, where our Creator put them: Life, liberty, happiness. First among them is the right to life.

I know I will not be successful in this debate, but I hope my colleagues listen to the consequences of putting ordered liberties out of order. If you do that, the consequences to our society long term, the precedent we set with this constitutional case will poison the well of judicial decisions for many years to come. Today, it is the unborn child. Tomorrow and tomorrows after, it may be you.

Mr. President, I yield back the remainder of my time.

Mr. President, I send a motion to the desk, and I ask for its immediate consideration.

Mr. President, this straightforward motion essentially says it is important that this bill receive the guidance and the wisdom of the Judiciary Committee, since issues have been raised at the Supreme Court that have not been addressed in this bill.

When I raised this in the beginning of the debate, a Senator on the other side said: We have debated this many times. Why do you want to go back to the committee?

Well, there is a big difference between the three previous occasions that we have debated this bill and this time, and that is, the Supreme Court has spoken. In June 2000, in the case of Stenberg v. Carhart, the Supreme Court ruled Nebraska's so-called partial-birth abortion law is unconstitutional. I am told very clearly by the lawyers who were involved in that case that the current bill before us, S. 3, is legally identical to the Nebraska bill.

The Supreme Court ruled that bill unconstitutional for two reasons. I would like to see the chart there. First, the bill contains no health exception. This is what the Supreme Court said:

The governing standard requires an exception where it is

necessary in the appropriate medical judgment for the

preservation of the life or health of the mother. Our cases

repeatedly invalidated statutes that, in the process of

regulating the methods of abortion, imposed significant

health risks.

Mr. President, this bill contains no health exceptions. I am very pleased Senator Durbin will be offering a health exception today, as well as Senator Feinstein later, and there may be others. But the bottom line is the bill itself, as it stands, contains no health exception. It makes it unconstitutional.

The second reason the legally identical bill was declared unconstitutional by the Supreme Court is that it imposed an undue burden on women because the definition in the law is too vague. It covers more than one procedure. This is what the Supreme Court said:

Even if the statute's basic aim is to ban D&X--

By the way, there is no such mention of D&X in S. 3.

its language makes clear that it also covers a much broader

category of procedures.

Therefore, it is putting an undue burden on the woman, Mr. President. With the Supreme Court's decision, we should at least have a bill before us that will pass constitutional muster.

If I may see the other chart that summarizes the two.

Here you see the summary of the problems with S. 3. Exactly the same as Stenberg: Undue burden on women because the definition is vague, and no exception to protect women's health.

I believe we have a responsibility to make sure this bill is constitutional, and I would think that those of my colleagues who support this bill, even without a health exception, which I think is cruel to a woman and I think goes against the American value of caring about mothers and caring about their health--even if you support that, without a health exception, you ought to care about this being constitutional. It should be our responsibility because what is the point of all this--the President said he is going to sign it--if, in fact, the Court turns around and says it is the same problem all over again?

You hear from others that this problem has been remedied and we have taken care of this in the findings, and they are tweaking some of the words, but the people who argued this law the last time said that clearly it is legally identical. I placed those letters in the Record, and I will read from them again.

So we are spending time on the bill that experts tell us is unconstitutional. Yet we have so many other matters we should be addressing. If we want to address this bill, at least send it to the Judiciary Committee so that when it comes back, they will have looked at this question of constitutionality. In the meantime, we are not looking at the loss of jobs in this country.

Yesterday, my colleagues on the other side voted down health insurance for poor, pregnant women--the ability for women to have contraceptives so they would avoid unintended pregnancies. Oh, this is amazing to me. These are the issues people confront every single day.

So we have 14 pages of findings that basically say the Supreme Court found this, found that, and we find this, we find that; therefore, essentially, what we are doing is constitutional. It is amazing to me the authors of this bill would bypass the committee their own party controls and bring this bill straight to the floor without stopping in the committee of jurisdiction after the Court has very clearly spoken that this S. 3--because it is identical to Stenberg in a legal sense-- is unconstitutional. No health exception. How can anyone who has ever read the Stenberg case or, for that matter, case law regarding abortions since many years ago, argue that if you don't have a health exception, you are meeting the constitutional standard?

I guess the Justices have felt all these years that a woman's health is important, and I guess some people in this body don't feel that way. That is your choice. But it is not constitutional. I think a hearing would be salutary. We could hear from the scholars, hear from the people who were involved in the Stenberg case. We could once again hear from the women who have gone through this procedure, many of whom I have shown you on the floor of the Senate. They call themselves very religious, very pro-life. Yet they chose to have a procedure that their doctors told them was necessary to preserve their fertility, to make sure they would not wind up being paralyzed.

I am looking forward to Senator Durbin's amendment. I want to hear people argue against Senator Durbin's amendment when he spells out the health impact that could occur to a woman if this type of procedure is not available to her. We have a committee system and it ought to be used. I want to let the Senate know that this idea of taking a bill to committee is certainly not a new idea.

Let's see what some of the Republican leaders said about sending bills to committee. This is March 6, 2002. This is Senator Don Nickles on bringing a bill directly to the floor and bypassing the committee, which is exactly what is happening today. This bill bypassed the committee of jurisdiction, the Judiciary Committee, and was brought to the floor. Let's hear what Senator Nickles said:

Where is the committee report? One of the reasons we have

markups in committees is to have everybody on the committee

who has expertise on the issue to have input, to support it

or oppose it--to issue a committee report so we can find out

what is in it, so you can read what is in it in English, not

just the legislative language, which is difficult to

decipher. Our competent and capable staff prepare a committee

report explaining in English, here is what this provision

does, here is what this provision means.

This is why it is important to send bills to committee, particularly on a subject the Supreme Court has taken up and has found terrible problems, constitutional problems, with a similar, if not legally identical, bill.

Let's look at what else has been said. This is another statement by Senator Nickles on bringing a bill directly to the floor and bypassing the committee:

I think that bypassing the committee and bringing a bill

directly to the floor is a violation of Senate protocol--

spirit, basically

telling the minority they don't matter. It doesn't make any

difference if there are 49 members on the Republican side,

you don't matter; you have no input.

I think this is quite amazing. And we have more statements as to why bills should go to committee by the Republicans who have bypassed committees just a year later--not even a year later.

Senator Frank Murkowski, now Governor of Alaska. He said this on bringing a bill directly to the floor and bypassing a committee:

The question is, why in the normal course of events would a

bill under the jurisdiction of the committee not be referred

to that committee? To suggest that there is an effort to

obstruct the process by giving members input on the bill

through the normal process of amendments is a travesty of the

process associated with the traditions of the Senate.

That was February 5, 2002.

That is a statement of Senator Murkowski, Republican, now Governor of Alaska. ``It is a travesty of the process to bypass a committee.'' And this is about a bill that has, by the way, no constitutional problem as far as anyone knew, and here we are talking about a bill that comes out after a Supreme Court case and acting as if it never happened, in my view, because the operative language of the bill still does not meet the constitutional challenges laid out by the Court.

This is another statement on bringing a bill directly to the floor and bypassing the committee, by Senator Nickles:

I am very disappointed in this process. This process should

not be repeated. It should not be repeated by Democrats or

Republicans.

Let me say that again:

This process should not be repeated by Democrats or

Republicans. We have committees for a purpose. We have

committees for a purpose: So we can have bipartisan input, so

we can have the legislative process work, so we can have

hearings on legislation so people can know what they are

voting on, to where they can try to improve it, to where any

member of the committee has an opportunity to read the bill

and to amend it, to change it--win or lose, at least they

have the opportunity to try.

We have a bill before us that should have gone to the Judiciary Committee. Senator Trent Lott's comments on bringing a bill directly to the floor and bypassing the committee:

If we bring these important issues to the Senate floor

without them having been worked through committee, it is a

prescription for a real problem.

What do we have? A bill that never went through the committee, a changed bill that never had a hearing at Judiciary, about a subject that is as important as life and death. Unbelievable.

So my motion to commit this bill to the committee--where, by the way, the Republicans have control--is a proposal that is not partisan and that is sincere because I believe, with all the problems we have in the world, the last thing we need to do is pass a bill that is unconstitutional and then have it brought back again, where we have to start all over, we have to have pictures that some of my constituents told me they could not even look at.

The Supreme Court said you must have a health exception:

The governing standard requires an exception where it is

necessary, in the appropriate medical judgment for the

preservation of the life or health of the mother.

My colleagues want to put themselves in the doctor's shoes and decide they know what is best in an operating room. They know. They may not have gone to medical school, but they know.

The Supreme Court wrote:

Our cases have repeatedly invalidated statutes that, in the

process of regulating the methods of abortion, imposed

significant health risks [to the mother].

The Supreme Court wrote:

Even if the statute's basic aim is to ban D&X, its language

makes it clear it also covers a much broader category of

procedures.

What I have presented in my opening statement is the following: We have a bill that deals with a subject of life and death. We have a bill that, if it passes, makes no exception for the health of the mother. We have a bill that legal experts say is legally identical to the law that was ruled unconstitutional by the Supreme Court.

We have a bill that affects real people. We heard their cases, and we will hear them more when Senator Durbin presents his amendment. At a minimum, could we have a little humility and send a bill such as that to the appropriate committee? Could we have a little humility? Could we be a little humble?

Senators are playing doctor, and that is wrong. Senators are ignoring a Supreme Court decision that says there must be an exception for the health of the mother. That is wrong.

My mother always said to me, there is right and there is wrong. You should be humble, and you should care about other people. Those are the values I grew up with.

As a mother of two children, having had two premature babies and, thank God--in those years it was not easy--they made it, with God's help, and as a grandmother who saw a daughter have a very challenging pregnancy, I know these things do not always go smoothly. And I know, because I have lived long enough to know, that if a doctor says to a mother or a father of a daughter or a husband of a daughter or family members of a woman, she could have a hemorrhage and die if we do not use this procedure, she could have a uterine rupture, she could be made infertile, she could have a blood clot, she could have an embolism, she could have a stroke, she could have damage to her nearby organs and she could be paralyzed for life if she does not have a procedure, it is a very serious matter.

This is not a list that was made up by anyone. It comes from physicians. I have the letter, and I have placed it in the Record. There are other things, such as a coma, that I did not put on the list.

I am saying to my colleagues, be a little humble. At the minimum, send this bill to the committee. Have these doctors come forward. Create a health exception that is fair. Do not give us a bill with no health exception because that is cruel, it is wrong, and it goes against American values of caring about each other.

I hope we will have a good vote and that this bill, S. 3, will go to the Judiciary Committee. Senator Santorum can appear before them. He can tell them why he believes he has met the Supreme Court case, the challenges that were laid down in Stenberg. I could be there, Senator Feinstein, other colleagues who feel another way. We could present our witnesses, we could talk about it, and then the committee could decide which way to go on it.

I would be happy to yield.

Yes. In addition, I say to my friend, have the lawyers who are familiar with the Stenberg case.

This chart shows the differences between this bill and the Stenberg case in terms of the legalese. Basically, they are identical. What we have is the Stenberg case that ruled that the Nebraska statute was unconstitutional because it placed an undue burden on women because the definition is vague and there is no exception to protect women's health.

Lawyers and constitutional experts tell us that the same problem exists in S. 3. So my friend is right. We would bring the legal people together. We would bring the women back. We could have another debate and then, regardless of how one feels--and I know the Senator and I may come down differently on this in the end--that is fine. I do not expect my position to prevail, let's be clear. But I think the Senate should, at the minimum, have the humility to hold a hearing and find out how they ought to draft this bill.

Absolutely.

That is correct.

Clearly, we are trying to get an in-depth knowledge of the issues and the challenges. We want to make sure the bills we present to the full Senate, or the full House on the other side, are carefully thought out; they make sense; there are no unintended consequences that could occur. It is for all of those reasons. Of course, it becomes a place for the public to get involved, because right now--Senator Frist, who is a doctor, his expertise is heart surgery and transplantation--we do not have anyone in the Senate who is an OB/GYN.

The other point I want to make while my colleague is in the Chamber, in addition to the fact that there is no health exception, is to bring out one of the things Senator Nickles said last year about bypassing the committee.

This is a statement made by Don Nickles when a bill bypassed the committee of jurisdiction and came straight to the floor. He said:

I am very disappointed in this process. This process should

not be repeated. It should not be repeated by Democrats or

Republicans. We have committees for a purpose. We have

committees for a purpose: So we can have bipartisan input, so

we can have the legislative process work, so we can have

hearings on legislation so people can know what they are

voting on, to where they can try to improve it, to where any

member of the committee has an opportunity to read the bill

and to amend it, to change it--win or lose, at least they

have the opportunity to try.

That goes directly to my friend's question about why we have committees and what their purposes are.

I am happy to yield.

Yes. This is not a motion to recommit; it is a motion to commit.

Senator Lott said, on bringing the bill to the floor and bypassing the committee:

If we bring these important issues to the Senate floor

without them having been worked through committee, it is a

prescription for a real problem.

I say to my friend, Senator Reid, you may be interested in this statement of Senator Murkowski:

The question is, why in the normal course of events would a

bill under the jurisdiction of the committee not be referred

to that committee? To suggest that there is an effort to

obstruct the process by giving Members input on the bill

through the normal process of amendments is a travesty of the

process associated with the traditions of the Senate.

It is very unusual for me to bring out statements made by the other party when arguing for a position. I am not saying it any more eloquently than they said it.

I say to my friend, our assistant Democratic leader, what they are referring to is the energy bill. That never really had a constitutional question. We have here a situation where we have the Supreme Court ruling on a legally identical bill that this is unconstitutional.

I hope we will have support. I look forward to the remainder of the debate. I also look forward to Senator Durbin's presentation on making sure we get a health exception. I hope colleagues will support that. That is what they ought to do if they really care about families and women and women's health, and we can move on, complete this bill, and have it, hopefully, committed to the Judiciary Committee where they can look at the constitutional questions and call on the doctors, have a good debate, and bring this back to the floor having had the benefit of the wisdom of the members of the Judiciary Committee, both Democratic and Republican.

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

Mr. President, we have reached a point of this debate where there has been screaming and yelling on the Senate floor. I will try to react to those screams as calmly as I can and say that this bill doesn't protect the health of women. It puts our daughters in harm's way. That is not groups saying that. That is 45,000 OB/GYNs. Talk about loving hands; they are saying that. It is women who have had the procedure. They are saying that. And guess what. The Supreme Court says that. Because of that, we need to send this bill back. Actually it is not back to committee; it never went to committee.

I never said it was identical. I said it was legally identical to the Stenberg case. I have said that over and over.

This morning we have been listening to a series of lectures about medicine. I guess I find that odd on the Senate floor, especially the one about breech babies because my daughter was delivered breech. I understand that. I don't need to be lectured about that, about what it is, about what the risks were to me or my baby because I lived it.

I do know one thing: My constituents are right to look away from this drawing. No one wants to look at abortion. We want abortion to be rare. We want it to be safe. We want it to be legal. The vast majority of people in the State I represent, a State of 35 million people, support Roe v. Wade because it is a moderate decision that balances all the interests. Yes, the health and life of the mother always, and the interest of the fetus where, after the first 3 months, States can in fact set the rules of abortion, but always, always with the life and health of the mother at the forefront.

This bill does not do that. Therefore, this bill is unconstitutional, in addition to being cruel, in addition to being dangerous, in addition to putting women in jeopardy.

Again, I say to my colleague that he has chosen to put this drawing here. I could have chosen to put a drawing of a woman having a hemorrhage behind me. I could have chosen to put a drawing of a woman's uterus rupturing and everyone running around in the emergency room desperately trying to save her. I could have chosen a drawing of a woman slipping into a coma, having an embolism. I could have put a drawing of a woman paralyzed for life because perhaps she couldn't get this procedure which my colleague has decided doctors say they don't need. That is false on its face, and that is the reason we need to have a hearing.

We have letters from doctors. We have letters that lay out why, in fact, this procedure is necessary and why this bill is unconstitutional. A letter from the University of California, San Francisco, signed by Felicia Stewart. She says this bill:

. . . fails to protect women's health by omitting an

exception for women's health; it menaces medical practice

with the threat of criminal prosecution; it encompasses a

range of abortion procedures; it puts women in jeopardy.

She names the various abortion procedures which could be outlawed.

I would like to have this bill go to the Judiciary Committee because I would like to know why one procedure wasn't mentioned in the bill ever. It is on purpose because it is meant to cover more than one procedure. That is another unconstitutional provision.

By the way, the proponents of this said before that the laws before the court would be deemed constitutional. They were not. They were wrong then; they are wrong now. And surely if they think they are so right, why don't they want to take the time and have this bill go through the Judiciary Committee.

Dr. Stewart says:

If the safest medical procedures are not available to

terminate a pregnancy, severe adverse health consequences are

possible . . .

And she lists them. They are even more than what is behind me.

The individual who argued the Supreme Court case that we are talking about, Stenberg, says the new Federal bill, S. 3 ``contains the same two flaws of the Nebraska bill that was ruled unconstitutional.'' And she goes on to explain why. I don't want to be terribly repetitive, but there were two problems in the Stenberg case. The ban was too vague and, therefore, there was an undue burden on the woman because she could be denied all kinds of procedures. Secondly, there was no health exception.

So, yes, I could have had a drawing that showed a woman in severe crisis and constituents would have turned away from that as well. That is why Roe v. Wade is such an important decision because it knows that this issue is so difficult. It weighed the competing interests and it said, in the first 3 months of a pregnancy, government stay out. A woman and her doctor can decide. Senator Santorum should not decide, although in his opinion, I know

he wants Roe v. Wade overturned. He thinks government should decide. I take issue with that. But there is no difference on the rest because I do believe later in a pregnancy, the State has a right to set the rules, always making an exception for the life and health of the mother.

I don't know what all the yelling is about because I could tell my colleague that we could probably get, if the leaders on his side of the anti-choice would agree, we could get a bill that could ban all late- term abortions--all--except for life and health of the mother. Wouldn't that be something we could do?

We will have the chance because, as I understand it, Senator Feinstein will be offering that very bill. Let's see how our colleagues feel. They will have a chance to ban all late-term abortions with the life and health exception.

My colleague said, in answer to Senator Nickles' comments about how important it is to send bills to the committee of jurisdiction--I wrote down what he said--they were talking about a complex piece of legislation, major complex piece of legislation. They were talking about a big piece of legislation, many pages. Well, I ask the question: What could be more important for the Senate Judiciary Committee to look at than a matter that deals with life and health? What could be more important for the Judiciary Committee to look at than a possible ban on a procedure that has no health exception, which could lead a woman into a life where she is paralyzed, where she has a stroke, where she cannot bear children anymore, where, in essence, she is taken away from her family? What could be more important to take 2 days on?

Are women not worth a couple of days of hearings here? Are women not worth it? They are your mother, they are your sister, they are your wife, they are our daughters.

It is legally the same. There are a couple of tweaks in the language, and there are a series of findings, but the lawyers who argued the other case tell us it is legally the same because there is no health exception and the language is so vague that it creates an undue burden.

I have behind me on a chart the two reasons the Court found that Stenberg was sufficient. Those issues remain in S. 3. That is why this motion to commit is an attempt to do the right thing by the women in this country, and for the children of this country, and for the families in this country, and for anybody who cares about this matter, and to have a couple of days of hearings to see if we can get a bill that would pass constitutional muster.

Correct.

Yes. I thank my friend. As an attorney, as he is, and as a member of the Judiciary Committee, he understands that this is in fact a wasted amount of time because there are so many other issues we could be dealing with here regarding the people of our country, who are struggling now under terrible economic times and are worried about foreign policy problems; and we are spending time on an extremely emotional issue. There is no question it is very difficult for this Senator to be here talking about it, because it deals with a situation where I believe the health of women could be jeopardized and doctors could be put in jail for trying to do the best for their patients. The other side gets very emotional as well. In the end, we have a piece of legislation that doesn't pass constitutional muster and this will be brought back again.

So it seems to me the intelligent thing to do is to bring it to the committee and make sure that this bill, as Senator Santorum says, meets the constitutional issues that were raised. Experts tell me it does not. The record is replete with references that colleagues on the other side thought the Nebraska case would pass constitutional muster and it did not either.

I also would like my friend to see a comment made by Senator Nickles regarding the importance of going to committee because I think it stands out here as a way to make the point that, whether you are a Democrat or Republican, you should respect the fact that we have committees for a reason. When a bill bypassed the committee, he said he was very disappointed in this process, and this process should not be repeated, so that we can have bipartisan input, have the legislative process work, have hearings so people know what they are voting on, et cetera.

I think what we are doing makes a lot of sense because it impacts the health of women, the lives of women, and life and death itself, and it ought to go back.

I say to my friend that that is the whole point. When you are dealing with these emotional, difficult, terrible issues, you have to look at all of that. That is why, on our side, we are willing to say we would ban all late-term abortions, as the Senator's bill would do, except for life of the mother and, in your case, a health exception which is a pretty tough health exception.

I am going to support you. I am also going to support Senator Feinstein's, which gives a little more leeway to the patient and the doctor. The point is that is the right approach to balance the fetus's rights and the mother's rights.

That is the whole point of Roe and why it was such a reasoned, reasonable, and moderate decision because all of this is difficult. For us to outlaw medical procedures which doctors tell us are necessary-- and my colleague keeps saying they do not. I put in the Record the letter from the OB/GYNs, 45,000 strong, who say do not do away with this procedure and, if you do, make a health exception.

I have told stories and I want to quickly go through one--how much time do I have remaining on my side?

Can I be told when I have 5 minutes remaining?

I thank the Chair. Mr. President, I say to my friend, he posed a very good rhetorical question which was: Does the Senator believe if people could hear these stories of the women and their families who are going through these choices, would they not also be touched and be moved? The answer is clearly yes.

I wish to tell my colleague about Coreen Costello who went through this procedure. I want to tell you how she defines her own ideology and religion. She says:

We are Christians and conservative. We believe strongly in

the rights, value, and sanctity of the unborn. Abortion was

simply not an option we would ever consider.

She was told the muscles of the baby she was carrying had stopped growing and her vital organs were failing. Her lungs were so underdeveloped they barely existed. Her head was swollen with fluid and her little body was stiff and rigid. She was unable to swallow and, as a result, the excess fluids were puddling in her uterus. They tried desperately to save the pregnancy.

She said:

We wanted our baby to come on God's time, and we didn't

want to interfere. We chose to go into labor naturally.

Eventually she was told if she did that, she could die.

We asked our pastor to baptize her in utero. We named her

Catherine Grace, Catherine meaning ``pure'' and Grace

representing God's mercy.

We talk about the problems families face. These families are desperate to do the right thing for the family, for the child in utero, and eventually she had to have this procedure that the Senator wants to outlaw. She said it saved her life and it saved her health, and it was the only choice she had to save her fertility. She said:

Losing our daughter was the hardest thing we ever

experienced.

She said it has been difficult to come to Washington and tell her story.

I say to my friend, no one can be more eloquent than he. I think this whole debate is about Senators thinking they know more than families, doctors, the ability of families to sit around and choose the safest option in a real emergency situation.

My colleagues say it is not an emergency; the procedure takes 3 days. That does not even make sense to me. I think if you find out you are going to have a cancer operation and it takes a long time, it still is an emergency. The fact the procedure takes a while probably indicates it is even more of an emergency.

We have a lot to do. We have a lot of responsibilities. I do not want to do harm. I think that by sending this bill to the committee of jurisdiction to further explore the constitutional ramifications of this bill, which is legally identical to a law that was ruled unconstitutional by the Supreme Court, is the right thing to do. To listen, again, to some of the people who have lived through this is the right thing to do.

To do no harm is the minimum we should be doing. I think when the Senator offers his amendment to have a pretty narrowly drawn health exception, it ought to win because how do we stand here and say we have a heart when we ignore stories like Vikki Stella's?

I absolutely supported the Murray-Reid amendment, as did my colleague. I was stunned at how many people on the other side of the aisle, who stood up and defended the rights of the fetus, somehow cannot defend the rights of a child. It is a stunning thing to me to see people, who are speaking so eloquently on this, vote against the Murray-Reid amendment to help poor children get the help they need, to help them get the medical attention they need.

We ought to think about the pictures of these women, with their families, who faced this. This is not an issue that is an abstraction. It is an issue about real families struggling. And being told that to save the woman, to save her ability to have future children, to make sure she does not wind up paralyzed or with a stroke, that she have a chance, this Senate is going to move to outlaw this procedure, that could do that for this woman without a health exception--I think it is cruel. I think it is wrong. I think it is sad. I think it shows a lack of humility. And I hope the people of this country will understand what we are talking about: The willingness of the pro-choice Members of this Senate to outlaw all late-term abortion as long as the life and the health of the mother are excepted.

I thank my colleagues for listening, and I retain the remainder of my time.

Mr. President, I want to start by answering Senator Fitzgerald, who complimented me on my work. We have worked together on saving dolphin and others. But since he couched it in the form of an attack, I think I would like to respond in this way.

My whole life has been dedicated to protecting children, women, the elderly, the infirm, and that is what my current position on this issue reflects. I want to ensure pregnancies are safe, that women have prenatal care so they have healthy babies and, yes, when a woman faces a crisis pregnancy, that she can be saved--women, like some of the women in the Senator's own State of Illinois, who have to choose this particular procedure that would be banned by his vote, without even an exception for the health of a woman. I find that position to be inhumane.

I want abortions to be safe, legal, and rare. I have to say to my colleague from Illinois, if he wants to go back to the days when abortions were illegal, I could share some stories about people I knew who were made infertile, and many whom I have read about who died. If you want to go there, we will talk about it.

But right now we are talking about a bill that is a very important bill because it bans a procedure that women need to have available to them on rare occasions. Because we are talking about a bill that is legally identical--if I didn't use the term ``legally identical'' in every case, I apologize--we are talking about a bill that is legally identical to the bill that was declared unconstitutional by the Supreme Court.

Senator Leahy agrees. He is the ranking Democrat on the Judiciary Committee. I will ask unanimous consent to have printed in the Record, if it has not been done so, his statement.

He says:

Senators deserve the benefit of full consideration and

vigorous debate before they are asked to cast a vote on such

a significant and complicated issue.

He says:

The Judiciary Committee has not had an opportunity to fully

debate the pros and cons of this issue in a hearing since

1997.

I would say to my colleagues, to heed the words of their own leaders--Senator Don Nickles, who excoriated Democrats for bypassing the committees instead of bringing a bill to the floor, in which he said:

Bypassing the committee should not be repeated by Democrats

or Republicans. We have committees for a purpose so we can

have bipartisan input, so we can have the legislative process

work, so we can have hearings on legislation so people can

know what they are voting on.

It is the height of irresponsibility, it seems to me, when we are talking about a bill that would deny a procedure that 45,000 OB/GYNs say is sometimes necessary to save the health of the mother, not to have a hearing on this particular piece of legislation since we have not had one in a very long time and the Supreme Court chastised those who wrote the Nebraska law because, they said, it did not really make any exception for the health of the woman even though the kinds of risks that she faces are very serious.

Let's take a look at the risks that doctors tell us women face: Hemorrhage, uterine rupture, blood clots, embolism, stroke, damage to nearby organs, and paralysis.

So I say to my friends who come here with such compassion in their heart, to be compassionate toward the mothers, too, to understand what they may face. Let's send this to the Judiciary Committee. That is where it should be. Let them take a look at it and bring it back up.

I yield the floor.

First, anyone who reads Roe v. Wade knows it is not an unfettered right. Clearly, at the later stages, Government can in fact restrict abortion. Secondly, the kind of talk we just heard on the Senate floor, where two Supreme Court Justices were essentially called murderers--if one reads back the words, it is essentially calling them murderers--I think is beyond inflammatory. I think it is dangerous rhetoric. It is wrong, and I am very sad that the debate has deteriorated to this point.

Mr. President, regardless of the vote on final passage of this bill, I think you ought to think about why it is important to commit this bill to the Judiciary Committee. Since we last debated this bill, the Supreme Court has ruled that an identical bill is unconstitutional based on two principles that I have here behind me.

Mr. President, since we last debated this bill, the Supreme Court has ruled an identical bill unconstitutional based on two principles: No. 1, there was a health exception; and this bill has none; and, No. 2, because of an undue burden on women because the procedure ban is so vaguely defined that it banned more than one procedure.

It has those same flaws and should be examined by the committee of jurisdiction.

The ranking member of the committee, Senator Leahy, agrees. In his statement, Senator Leahy said: ``Senators deserve the benefit of full consideration''----

I will take another 30 seconds.

--``of full consideration and vigorous debate before they are asked to cast a vote on such a significant and complicated issue.''

We are talking about--and I will show a picture of one of them--women such as Coreen Costello, a religious, self-described pro-life conservative woman who had no other option but this procedure if she wanted to preserve her health and have more children.

I retain those 30 seconds.

Mr. President, women such as the one shown in this picture deserve to have another hearing. These are the things that could go wrong if a woman is denied this procedure without a health exception: They could hemorrhage; they could have a uterine rupture, blood clots, an embolism, a stroke, have damage to nearby organs, or have paralysis.

We have not had a hearing on this bill since 1997, my friends. We have since had a Supreme Court decision that faults the bill because it does not have a health exception. At least vote with us, please, to commit this to the Judiciary Committee.

I yield the floor.

Madam President, it is really very interesting when we talk about disabled children that the man offering this amendment to reaffirm Roe v. Wade is the champion for the disabled. He has fought for the disabled all his life.

To somehow put out the idea that those who are pro-choice are not for the disabled is another terrible thing to say in this Senate. I have been in many of these debates over the years, and the comments made by some of my colleagues on the other side of this issue--in terms of their view toward women, women who want more than anything else to bear healthy children and have those children and, yes, even bear them if they are disabled--are extremely disturbing. The kind of comments we have heard about Supreme Court Justices border on, worse than inflammatory, dangerous comments. The comments we have heard about doctors and health professionals are very disturbing to me.

Let me reiterate that the AMA opposes this bill--my colleague keeps talking about the AMA--and they oppose it because it imposes criminal penalties on physicians who they say perform these procedures. So they are not in agreement with this bill at all. They find that S. 3 is something they must oppose.

The Senator from Pennsylvania keeps asking for specific cases of women who were told that this procedure was necessary as the safest procedure to save their health and their life. He keeps saying no one has come up with these.

I ask unanimous consent to have printed in the Record the full text of 10 statements by 10 women who so testified.

I am going to just read a paragraph out of each of their stories. The first is Viki Wilson, who writes:

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 we already face.

Coreen Costello writes movingly. All of these are so moving that I would say if every American could read these, they would know that what we are about to do is wrong because it makes no health exception. She says:

Losing our daughter was the hardest thing we have

experienced. It has been difficult [to talk about our loss].

And it's ironic that I, with my profound pro-life views,

would be defending an abortion procedure. God knows I pray

for the day when no other woman needs this procedure. But

until [then] . . . women must have access to this important

medical option.

Claudia Crown Ades, at the end of her beautiful statement, writes:

Though I hope and pray that no one has to go through what

my husband and I have, there are people who will. It can

happen to anyone--to you, your wife, your sister, your

daughter, your friends. All women should have the protection,

the guidance and the access that modern medicine allows.

All of these women were told by their physician that the safest procedure is the one that the Senator is going to outlaw here, without any exception.

Then there is Vikki Stella. She is a diabetic. She was told she absolutely needed this. We went through her story.

Then there are a number for whom I do not have photographs. Audrey Eisen--she says: ``Along with my sadness came a realization that if such legislation passed,'' tragedy would happen to ``those women who come after me.'' Outlawing these procedures, ``I don't know how these women will endure; I don't know how I would have endured.''

Erica Fox said:

This procedure is not about murder. It's about finding way

to go on. In the end, it's about life. A good life. A healthy

life. The life I see every day shining at me in the eyes of

my son.

Tammy Watts:

I understand the Senate is considering legislation that

would ban the kind of surgery that I just had. . . .

She goes on to talk about this terrible decision. She begs us not to outlaw this procedure. She says:

I can't imagine where I would have been without [my doctor

who performed this procedure.] He saved my family. . . . [He

saved] my life. I couldn't have made it through this without

him, and I know there are a great many women out there who

feel the same way.

Theresa Tauchi writes us on October 11, 2000:

I know that it can happen to us again and that we will need

to revisit the same heartbreaking decision every time--a

choice that rightfully belongs to us and to us alone.

Kim Koster wrote to us. She said:

The reality is that this is a terrible law [this S. 3], a

grievous interference between doctor and patient, and would

only compound the tragedy and the heartache faced by families

like us. Please protect [our] . . . families.

Miriam Kleiman; this is the last one I have.

It is my hope that someday in the future when my doctor and

his staff face the harsh rhetoric from the so-called ``right

to life'' movement . . . they will not see the anger of the

anti-choice activists, but will envision instead the face of

our healthy son whose picture adorns their wall and will know

that what they did for my family--and so many others--was

right and they helped us reach this day.

The reason Senator Harkin's amendment is so important is that under Roe v. Wade, the right to choose is guaranteed to a woman in the beginning of a pregnancy, the first few months. And after that we can restrict, but always with an exception for the life and health of the mother. That is Roe.

Let me tell you why it was important that that decision be made. Because before Roe, 5,000 women a year died from back-alley illegal abortions. I don't hear anything about these women. It chokes me up.

Women had to go and have back-alley abortions in other places--not a clean hospital, not a State-licensed facility, no practitioner who knew what he or she was doing. Money was slipped across the table, and 5,000 women a year died. That is why this vote is so important. We must not go back. We cannot go back to those dark days before Roe.

Yes, I yield.

I haven't seen any recent polls. I wonder if my friend could inform me. I assume overwhelmingly the people of this country support Roe because it is a moderate decision, a moderate mainstream decision.

Absolutely. I think people are horrified at the thought that a Senator would make such a personal, private decision. Our colleague from Pennsylvania wants to see Roe v. Wade overturned, and that is exactly what would happen. Government would be put in the middle of the lives, the private lives, of the people of this country. The people would no longer be trusted to make these decisions.

I say to my friend, he is absolutely right. Because there is no health exception in S. 3, it is a complete reversal from Roe.

What is shocking is my colleagues on the other side won't even make a health exception that was narrowly drawn by Senator Durbin. They couldn't even go that far. We all know what could happen to a woman if she does not have this safe procedure. Doctors are telling us. We put those statements in writing. They could have a hemorrhage, their uterus could rupture, they could have blood clots, embolism, stroke, damage to nearby organs, and paralysis. Yet S. 3 comes to us without a health exception.

I say to my friend, the rest of the time is his. I have concluded my remarks. I am very proud to stand with him. I think it will be a close vote, but I am hoping a winning vote, so the message can go out from here that Roe v. Wade, which balanced all the interests--the family interests, the interests of the fetus, and the interests of the mother, which said that previability a woman has a right to choose, she will make that decision with her God and her doctor and her loved ones--that should stand. Certainly later in the pregnancy there can, in fact, be restrictions, and always exceptions for the life and health of the woman.

I thank my colleague for again offering this amendment. I think it is very important. I hope people of the country will watch the vote and will think about the ramifications.

I yield the floor. Senator Harkin retains the balance of time.

Mr. President, I ask for the yeas and nays.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Will the Senator yield further?

I want to make sure this is understood by Members of the Senate and those following this debate, and I want to ask this question: Am I correct in my assumption that the exact language of S. 3, which is currently before us, was the same language in the Nebraska statute that was found unconstitutional by the U.S. Supreme Court?

If I may ask another question of the Senator. So in 1999 we debated virtually the same bill on the floor?

There was a vote taken and then the veto by President Clinton. Then subsequent to that the U.S. Supreme Court across the street took the Nebraska statute to consider whether or not it was constitutional, and that statute had the same language we are considering today. I can quote it. This was in the Nebraska statute, and this is in S. 3. Abortion is:

necessary to save the life of a mother whose life is

endangered by a physical disorder, physical illness, physical

injury, including life and danger of physical condition

caused by or from the pregnancy itself.

The identical wording to the Nebraska statute. So in the year 2000, the Supreme Court ruled this language unconstitutional. Yet we come back today with exactly the same language that was already rejected by the Supreme Court, and we are supposed to vote on this without any intervening committee hearing, without having people come before us and suggest that if you are going to approach this again, you certainly don't want to go down the same path as the Nebraska statute.

So the Senator's motion to commit is basically to take the language rejected by the Supreme Court--the language before us now--back to committee so that whether you are for or against this amendment, you can at least concede the obvious--that this language has already been rejected.

What we are going through here is, frankly, not a very productive undertaking. Is that the Senator's suggestion with the motion to commit?

Mr. President, I think two things ought to be brought up as part of the motion to commit. The first is that we are considering language already rejected by the U.S. Supreme Court--a 5-to-4 vote, by a fairly conservative Court. Yet we are being asked to vote on it again today. That does not suggest a learning process. It suggests that people are stuck in a political position that they are going to keep bringing up over and over again regardless of the Court. So the language is identical.

The second thing the Supreme Court said when they rejected the Nebraska statute still applies to this, and that is that there is no health exception, no situation where a mother's health situation is taken into consideration when an abortion procedure is allowed.

I might ask the Senator from California this. I listened carefully-- and again I will defer to my colleague from Pennsylvania when it comes to his convictions and feelings on this issue; they are heartfelt, real, and sincere. I cannot listen to him without coming away with that impression. He said he believes that if every American could come into a medical setting and watch this abortion being performed, they would understand his position.

I would like to ask the Senator from California: Couldn't the same thing be said of the women who are finding late in their pregnancies that there has been a terrible complication which has occurred, which threatens their lives, threatens their health? Couldn't we also say, if you could sit down in a waiting room with a mother-to-be and her husband who have just been given tragic news at the end of what they thought was a normal pregnancy, and that in fact it is not normal, there are terrible complications, and that continuing this pregnancy may threaten this mother's life or threaten her ability to ever have children again? I wonder if you invited all of America into that waiting room to anguish with

these parents, what their conclusion would be.

I say to the Senator--and I ask for a response--there is no doubt about this. This is a painful and emotional issue on both sides. But in fairness, it has to be said that the other side is arguing they don't want to take into consideration the health of the mother, they don't want to create an exception for a mother in desperate circumstances, facing a medical crisis that is threatening her health and ability to ever bear another child.

In honesty and fairness, should we not be talking about both sides of this equation? I ask the Senator to respond.

Grievous physical injury.

If I may ask the Senator a question.

I have heard that story, and I have personally met a woman from my State who faced a similar medical crisis, Vikki Stella, of Naperville, IL, a mother of two children who was pregnant with her third, anxiously awaiting the arrival of this little boy and learned very late in her pregnancy, much to her surprise, that her poor child was so deformed and abnormal that it could not survive outside the womb. The child was destined to die almost immediately after birth.

Of course, some people would say at that point: Why not just finish the pregnancy? Why do you have to do anything? Her doctor said to her, unfortunately: You are not the healthiest person in the world even as a mother of two children. You have a diabetic condition, and you have the chance of complications. Therefore, her doctor recommended that she terminate that pregnancy, using the same procedure which would be outlawed, banned, prohibited by this legislation.

Her husband was a practicing physician who was then in private business. She said in her testimony she almost had to be carried out of the waiting room after she was told this devastating information. They went home. I talked with her. She said they had sleepless nights about what is the right thing to do: Should I go ahead and risk my life and my health and finish this pregnancy or what?

They finally came to the conclusion that the best thing for her, her health, and her family was to go ahead and terminate the pregnancy of this poor malformed fetus that would never survive, and she did it. They used the very procedure which the Senator from Pennsylvania would prohibit and ban. The last time I saw her was here on Capitol Hill. She was pushing a stroller with her new baby boy.

I say to the Senator, a lot of this debate is premised on false premises that women that late in pregnancy would not take the termination of a pregnancy very seriously. I do not believe that. I think the overwhelming majority of women that late in a pregnancy are not going to end the pregnancy unless there is some extraordinary situation. That somehow the women who make this decision really never wanted to have a baby--look at Vikki Stella. Look at Mrs. Costello and others. They had a family and were hoping to add to their families. Frankly, there are lots of options which they could choose.

I say to the Senator from California, isn't that what we are finding, that these are extraordinary medical situations where we are asked now in the Senate to impose our medical judgment over the judgment of an obstetrician, over the judgment of a family doctor? We are going to make the medical decision on the floor of the Senate, a decision which should be made in a hospital, in a clinic, in a doctor's waiting room; isn't that what this comes down to?

I ask the Senator from California if she sees it as an issue that brings that kind of decision to the forefront.

If I may ask the Senator, too, after most of the debate yesterday, Senator Santorum came to the floor and told a very compelling story about a little girl who was born with some serious health defects and who survived and prospered. He showed us a

beautiful photograph--which I am sure he is going to refer to again--of this little girl who had survived and conquered all of these challenges.

I ask the Senator from California, we all know these stories and we admire the courage of the parents and of the children who make it, but doesn't the Senator from California believe, as I do, that we should have adopted the Murray-Reid amendment yesterday which would have guaranteed health insurance coverage for uninsured mothers with these children who are struggling with all of these medical problems? Doesn't the Senator believe that if we are truly committed to these families and these children that Senator Murray and Senator Reid have the best approach in terms of family planning information so that they have wanted pregnancies and that they have health insurance for these children?

Does the Senator believe, as I do, that if one is committed to these children, these mothers, and these families, they should also be committed to health insurance coverage so they can have the care they need to survive and prosper?

Mr. President, I send a modification of my amendment to the desk.

Mr. President, with no objection, let me explain what I have

done because it is significant. I want to make it clear at the outset of this debate what I have done. If either side wishes to address it, I want to explain my rationale.

In the original version of the amendment we said if the doctor certified that a woman who was pregnant was eligible for a late-term abortion, certifying that her life was at stake if she continued the pregnancy, or that she faced the threat of grievous physical injury--if a doctor made that certification, we wanted to make certain it was the truth. We provided in this bill that a doctor who knowingly certified that a woman was eligible for a late-term abortion when he knew it was not true ran the risk of losing his medical license, would no longer be able to practice medicine, and for the first offense a fine of $100,000, for the second offense a fine of $250,000.

There was also a provision later in the same bill which subjected that same doctor to a potential criminal penalty for perjury.

I have spoken to some doctors who have said to me: Senator, understand, even if a mother's life is at risk, what you are asking this doctor to decide, that he is willing--he or she is willing to risk their medical license to ever practice medicine again, face a fine of $100,000, and go to prison--how many doctors do you think, even under the most difficult circumstances, would then undertake getting involved in terminating a pregnancy even if a mother's life is at stake?

I have thought about that. I rolled around last night thinking about that. I came to the conclusion they are right. I think it is a sufficient penalty to say that a doctor who misrepresents on this certification whether a mother's life is at stake or she faces a grievous physical injury could lose his license to practice medicine and face a substantial fine.

The modification which has been accepted here removes the criminal penalty. But even the criminal penalty, which might be 2 years, is something that comes and goes. Losing your medical license for a lifetime is certainly a penalty felt by that person for the rest of his or her natural life.

I made this modification. There will be some who will say you have weakened this bill. I don't think the loss of a medical license and facing a fine is a weakening of this bill to the point where doctors are now going to be less vigilant in making certain that they enforce the provisions of my approach and my amendment.

Having said that, and having explained what I have done this morning with this modification, and addressed the concerns of doctors and those of my colleagues who raised it, let me go to the heart of the issue.

We have talked today about a gruesome abortion procedure. I am still touched by it every time it is described. Any sensitive human being would be touched by it. But I will tell you there is no abortion procedure which, if it is described in detail, would not touch your heart. You are talking about the elimination of a fetus, whether viable or not. You are talking about gruesome surgical circumstances. Why in the world do we allow this to happen in America?

In the earliest stages of the pregnancy, we say we don't believe the fetus has reached the point of being a person. The argument about whether the joining of the sperm and the egg creates a person has been going on for centuries. Different religions, different cultural traditions, different countries, and different leaders have come to different conclusions. Even people in medicine can't quite tell you when it becomes a person.

So the Supreme Court in Roe v. Wade came up with some definitions in trimester terms--the first three months, the second three months, and last three months of pregnancy. They basically said in the first 3 months if a woman learns she is pregnant, it is basically her decision as to whether she wants to continue with the pregnancy or end it. In the second three months, a more complicated decision. But in the last three months--the seventh, eighth and ninth month of the pregnancy--the Court has made it clear we will not terminate the pregnancy in that situation unless there are compelling circumstances involving a threat to the life of the mother or a threat to the mother's health.

We have to put this conversation and debate into context. We are talking about the termination of a pregnancy through an abortion procedure where we have reached such a medical crisis that a doctor says to a woman, I have to tell you, if you continue this pregnancy, it could threaten your life. You may never bear this child because of the complications of this pregnancy, because you may die or I can tell you this: You may go through this pregnancy and run the risk of endangering your health permanently.

You say to yourself: What kind of endangerments would lead a woman to terminate a pregnancy late in the pregnancy? Senator Boxer has listed them. You could be dealing with a uterine rupture in a pregnancy where the woman understands that if she continues the pregnancy, she may never be able to bear another child.

These are not theoreticals or hypotheticals dreamed up by Senate staff and Members of the Senate. These are told us by doctors and by obstetricians who literally have to sit across the desk from a mother- to-be and say, I have terrible news. Something has happened we never anticipated. This late in the pregnancy you are facing something which you didn't think would ever happen: The possibility of a hemorrhage that could endanger your life, a uterine rupture that could endanger the ability to have a child, blood clots, embolisms, stroke, danger to your organs of a permanent nature, and even paralysis.

I have spoken to women who have been through this. Believe me, this was not a casual, easy decision. These women, late in pregnancy, were counting the days when finally their back stopped hurting them and finally they could get back to normal clothes and have the baby in their arms. They were waiting expectantly for that, only to learn at the last minute in the pregnancy something had happened that no one had anticipated.

The amendment which I offer says let us make certain if we are going to draw the line on the termination of pregnancy late in the pregnancy, let us make certain we don't forget there are two things that need to be respected. One of those comes down to the basic premise of philosophy of the mother first. Hardly anyone argues with this. If it is a choice between the life of the mother and the life of a fetus, most religious traditions and most people would say, For goodness sakes, you save the mother. You save the mother.

The Durbin amendment says you can only terminate the pregnancy late in the pregnancy, after viability, in the final trimester, give or take a few days, you could only terminate it if the mother's life is at stake. I hope there is no argument about that.

The second part is equally important. This is the part where we have a division of opinion. We part company here in the Senate; that is, whether or not you should allow late-term abortions when a mother faces the possibility of a grievous physical injury, as I have described. I think you should. At least I think the option should be there.

If some mother in that circumstance takes the heroic position that she may never be able to have another child, but she wants to go forward with this pregnancy, that is her decision. That is the decision for her and her family and conscience. It is one she can make.

But what we are seeing here with the underlying bill is we don't want to create the possibility for that decision to be made. We want to foreclose the possibility that a woman facing the threat of grievous physical injury late in her pregnancy would make the decision to terminate the pregnancy.

I think it is a mistake. I think we have pushed ourselves into medical judgment and medical decisions in a way we never should have done. Whether you are pro-life or pro-choice, should we not create an opportunity for that mother who has just been hit between the eyes with the knowledge that what was a perfect pregnancy has sadly gone the wrong way and that now if she continues that pregnancy she may endanger her life or endanger her ability to have another child?

These are tough decisions.

As soon as I am completed, I would be happy to, and I will yield on the Senator's time and on his sides time.

But I will just say if we are going to err in judgment here, let us at least err

on the side of understanding that there are medical complications and there are medical problems which we cannot as simple lawyers and legislators even envision. Let us defer to the professionals, the obstetricians and gynecologists who have written to us and said, Please don't pass S. 3, the Santorum amendment. There are moments in time when we have to make critical medical decisions, and in those moments we have to do what is best for the woman involved here. Don't foreclose an opportunity. Don't tell us we cannot do it. Don't make it be prohibited under law.

That, I think, is what this debate is all about. I will tell you that this amendment which I have offered does not have universal acceptance either on the pro-choice or the pro-life side. Even this morning a pro- choice group notified me that people voting for the Durbin amendment are not going to be viewed in a popular and favorable light. I consider myself pro-choice in my approach to this decision. I know now that some pro-choice groups disagree with us because this amendment is very strict and very specific. It says when it comes to postviability abortions and late-term abortions, we are laying down very strict limitations and guidelines as to when you can be eligible for this.

This says it isn't just matter of a doctor performing the abortion reaching the decision. It is a matter that has to be confirmed by another doctor. An independent doctor has to certify, yes, if that pregnancy goes forward, that mother's life is at stake, if that pregnancy goes forward that mother is facing the risk of grievous physical injury, and if that doctor misrepresents the condition of the mother, that doctor stands to lose his medical license and faces fines up to a quarter of a million dollars. I think this is as tough as it can be, and as tough as it should be to make certain we don't have abortions in late-term pregnancies except for the most serious and tragic circumstances.

Mr. President, I ask unanimous consent that Senators Harkin and Lieberman be added as cosponsors to my amendment.

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

Mr. President, I yield 10 minutes to my colleague, the Senator from Louisiana.

I ask unanimous consent that Senator Lincoln be added as a cosponsor to my amendment.

I yield 30 seconds to the Senator from California.

How much time do I have remaining?

Mr. President, if one takes a walk through this Capitol building, a few feet from where we are standing is the old Senate Chamber. If one reads the history of the Senate, they will find that in the 19th century, in the 1800s, that Chamber was divided over the issue of slavery to the point where one Senator was almost beaten to death on the floor of the Senate.

It is hard to think of issues in America that divide us the way slavery divided us then and the issue of abortion divides us today. There is such strong emotional, honest, and heartfelt feeling that comes into this issue on both sides.

I greatly respect the Senator from Pennsylvania, even though I may disagree with him on this issue. I believe he is speaking from the heart. I equally respect the Senator from California, who is on the opposite side of the issue. I have known her for 20 years. I know she speaks from the heart.

So many of us come to this issue understanding that if we walked into a town meeting in my home State of Illinois and brought up the issue of abortion, we would see people folding their arms and would know what they are thinking. Some of them are thinking: I do not like it; I do not want you to talk about it; I do not know why it is legal in this country, and we are a worse nation for having it. With their arms folded, you just know what they are thinking.

Then we will see another group with their arms folded and we will know what they are thinking: I do not think

the Government ought to stick its nose in a woman's business when her health and her life are at stake. She, her doctor, her family, and her God ought to make that decision, not some politician. That is what we are going to get in most town meetings in most townhalls across America. But there is a group of people in the middle who are sitting there saying: I see both sides. I do not like the fact there are so many abortions in America. I do not like the fact you have circumstances where people need an abortion. We ought to find some way to work this out reasonably.

That is what the Supreme Court tried to do in the Roe v. Wade decision. They said: We are not going to allow abortions any time, anyplace, under all circumstances. We are going to kind of limit when a woman can have it, and under what circumstances.

Then the national debate started, and it has not ended. I do not know if it ever will. So I come today understanding that division in America, that division in my State, even that division of opinion within my own family. I understand this, I feel it, and I am trying with this amendment to strike a reasonable compromise.

Oh, the people with their arms folded on both sides of the hall will not like it. It does not ban abortion, which is what some people want. And it does not get the Government out of the picture completely, which is what others want. Instead, it tries to draw a reasonable, sensible line, a good-faith line, of where we will allow abortions in late-term pregnancies.

When we look at the sponsors of this amendment, unlike any other amendment on this subject, we will find we have the spectrum of opinion on abortion. Watch the rollcall vote. We are going to see Senators come forward who are pro-life and pro-choice who will support the Durbin amendment, and that says something, that when they have thought about it, maybe this is a reasonable middle ground.

I hope a majority of my colleagues will believe that it is. It says: Late in the pregnancy, after the fetus within the mother is viable and could survive, we are not going to allow you to terminate that pregnancy except under the most extreme situations.

The Senator from Pennsylvania says: What is viability? How do we know the fetus is viable? I cannot answer that question. No legislator can answer that question. The Supreme Court, in the case of Planned Parenthood of Central Missouri v. Danforth, said the determination of whether a particular fetus is viable is and must be a matter for the judgment of the responsible attending physician. They went on to say the time of viability is different in every pregnancy.

So I am using a standard the Supreme Court uses. The doctor has to decide: Have you reached a point where that fetus is more likely than not to survive outside the womb? If the answer is yes, then a woman knows she is very late in a pregnancy. Then, and only then, do two hard questions have to be asked before a pregnancy can be terminated. One, if that pregnancy is continued, will the mother die? If the answer is yes, certified not by one doctor but by two doctors, one being an independent doctor, that she is going to lose her life if she continues the pregnancy, then a consideration can be given to terminating the pregnancy, or one other possibility: If two doctors come forward, one independent as well as the one treating, and they conclude if the mother continues this pregnancy, at this point she runs the risk of suffering grievous physical injury. Those are the only two conditions, and that is it. Not if a woman feels like she wants to end the pregnancy. I cannot imagine a woman in that stage of her pregnancy even considering that possibility.

It goes beyond that. It goes to tangible, physical medical evidence, backed up by real doctors who are willing to certify. And this second doctor who has been written off by the critics of this amendment as just another ``abortionist,'' that is not what it says at all. The second doctor's opinion has to be an independent physician who will not perform nor be present at the abortion and who was not previously involved in the treatment of the mother. If one does not have that second doctor agreeing with the first doctor, the pregnancy cannot be terminated.

What is the risk for the doctor if they falsify it, if they lie about it, if they say, oh, we want to make a dollar here, so we are just going to put the certification down? If they lie about it, they run the risk of having their medical licenses suspended, on the second occasion revoked, facing fines up to $250,000. Is that a light penalty, that a doctor would lose his license for a lifetime? That is a pretty serious penalty. Would not any doctor think twice before conspiring to go ahead and certify it when, in fact, there is not medical evidence?

The Senator from Pennsylvania says we want abortions to be rare, but we do not do anything about it. The Durbin amendment will restrict more abortions and abortion procedures than the Santorum bill, S. 3.

Mr. Santorum's bill addresses one procedure, the partial-birth procedure, throughout a woman's pregnancy. My amendment addresses all late-term abortions, whatever the procedure.

Finally, when it comes to risk, he takes exception to the fact that I use the words ``risk of grievous physical injury.''

I thank the Chair.

Mr. President, before the vote begins, I ask unanimous consent that Senator Dodd be added as a cosponsor of the amendment.

Madam President, I thank my friend from Iowa. I thank him for introducing this important sense-of-the-Senate resolution amendment that will reaffirm Roe v. Wade, making it very clear that the policy of this Senate is for abortion to be legal, safe, and rare.

But I have to confess I am somewhat bewildered that we are having this debate at this time in our Nation's history. Obviously, the Republican leadership here in the Senate--along with the House and the White House--has made a choice. Of all the grave challenges facing our Nation at this moment in history, we want to work together to criminalize a private medical decision made by women and their physician. With so much at stake, and when our economic security, national security, and domestic security are at stake, I believe that is an unusual and, in my view, a misguided choice.

Today, 300,000 men and women wearing the uniform of our military stand in harm's way in the Persian Gulf. The other day we learned that Iran has progressed at an alarming rate for developing its own nuclear weapon capacity. North Korea continues to lob both rhetoric and missiles to demonstrate that it is wanting to be taken seriously as to the threat it poses to our immediate, imminent security.

Thousands of Americans continue to fight against al-Qaida in Afghanistan and search for Osama bin Laden. With so many American lives on the line, the Republican leadership has decided to spend its time working to criminalize a medical procedure that is used in very few cases and only when the health and safety of the woman is at stake.

Today, we know with all of these global uncertainties that we have a deepening economic crisis made worse because of the potential for war. Last month, we lost 312,000 private sector jobs--the steepest decline since the days following the attack of September 11. Consumer confidence has dropped to its lowest level since October 1993. The number of Americans who have been out of work for 6 months or longer has climbed to nearly 2 million. February marked the 20th consecutive month the private sector experienced negative job growth--the longest stretch of negative job growth since World War II.

With so many American families struggling to make ends meet until they can find work, the Republican leadership has made the choice to debate how best to criminalize a private medical decision made by women and their doctors.

Just last week, we learned the Federal budget crisis is far worse than was previously reported. The deficit is at a record $304 billion and climbing. Projections to eliminate our debt by 2008 have been replaced with new projections that have our debt level rising to historic highs.

You know about the $5.6 trillion surplus this administration inherited. It is gone, along with our Social Security and Medicare trust funds. Out in our States, our States, our cities, and our counties are facing incredibly difficult economic times. The States are facing a combined budget deficit of $85 billion--the worst financial crisis in a generation. We still have billions and billions of dollars of unmet homeland security needs.

With so much uncertainty here at home, the Republican leadership has made the choice to debate how best to criminalize a medical procedure for women.

I have to ask myself: Why was this moment chosen for this debate? Why aren't we debating the steps we could take to help the 8.5 million Americans who are out of work? Why aren't we debating how we can get our Federal budget back on the road to balance and begin to diminish these overwhelming deficits and this increasing debt load we will leave on the backs of our children?

Why are we not debating the necessity of our paying our bills? Why are we not debating what needs to happen if and when those 300,000 men and women in the military in the Persian Gulf are called to action, and in the days that would follow a military victory?

As I travel around, talking with people in my State, that is what they talk to me about: What about this war, Senator Clinton? What is going to happen after a war, if it happens? What about homeland security? Are we as safe as we need to be here at home? Senator,

what can we do about the jobs that are disappearing, the stagnant economy? How on Earth can we deal with this overwhelming budget deficit? What about not funding No Child Left Behind and the burdens that are being put on public education as a result? When are we going to get around to a prescription drug benefit for our seniors who are suffering and having to face these large bills? What are we doing to protect our environment? We are, after all, stewards of our natural environment for future generations.

Those are the questions I am being asked. Not only do I believe this is an inappropriate and unfortunate time for this debate to be occurring, but I find it deeply ironic that it is taking place in the month of March, Women's History Month.

Apparently, some people believe that the purpose of Women's History Month is to literally bring us back to a time in history when women had no choices. Instead of celebrating our accomplishments and improving the health and safety of women in the United States and internationally, there are those who would put women's health at risk.

But if we are to debate this emotional issue, then we must do so with great care--care about the words we use and the laws we write. Every time we use inflammatory language in this Chamber, it limits our ability to talk about this very private, personal decision between a woman, her loved ones, and her doctor.

Emotions run high with this issue. And I deeply appreciate my good friend from Nevada and the way he acknowledged we have very serious differences. But this is not a place nor is this a subject where we should be using language as a weapon to divide Americans.

So I am very concerned about some of the words I have heard used on this floor over the last several days. ``Execution,'' ``murder''--those are very inflammatory words that do not do justice to this great Chamber, nor to the seriousness of this debate.

I am also concerned about some of the visual aids that have been used by some of my colleagues. They are as deceptive as they are heartbreaking. Because what do they show? They show a perfectly formed fetus, and that is misleading. Because if we are really going to have this debate, then we should have a chart that demonstrates the tragic abnormalities that confront women forced with this excruciatingly difficult decision. Where are the swollen heads? Where are the charts with fetuses with vital organs such as the heart and the lungs growing outside the body? Why would we choose not to demonstrate the reality of what confronts the women I know, women who come with medical diagnoses that have said the brain in the head is so swollen that the child, the fetus, your baby, is basically brain dead? Now, it can be kept alive because it is on life support in the mother's body, but let me tell you what the realities are: these children cannot live outside the womb for more than mere seconds or minutes. That is what these women hear when they go in for their medical examinations and get the worst news that any potential mother could receive.

So a picture is worth a thousand words, as long as it is a realistic picture about what it is we are confronting, because a large part of this debate is about words, the words that are left out of this bill: the health and well-being of the mother.

The way this bill is written, the choice of language eliminates the distinction of trimesters. The vagueness makes this bill applicable to many other procedures in addition to the ones explicitly named. This bill is extreme, deceptive, and unconstitutional.

As my colleague from Pennsylvania stated: This is the beginning of the end. And that is absolutely what he means. If this bill passes, it is the beginning of the end of Roe v. Wade, it is the beginning of the end of the right of women in this country to make the most personal and intimate decisions that any of us would ever be called upon to make.

Yesterday, I had the opportunity to sit down with several women who have gone through this terribly difficult decision. What was so sad about each of these women's stories was how much each of them wanted the child they were carrying--only to learn that a fatal abnormality had inflicted each one, creating an unshakable sorrow. Each woman knew that her baby would not live long in utero or for no more than seconds or minutes outside her womb.

One of the women in my office told such a sad tale of what had happened to her and her husband. After trying so hard to become pregnant, they were thrilled when she discovered she was pregnant. But her happiness quickly turned to grief when doctors explained that her daughter had a genetic syndrome called Trisomy 13.

Now, many fetuses with Trisomy 13 die in utero. And those who survive birth do not live for long.

Her choice was not easy, and it was a choice she made with professional medical advice and with her family.

This young woman, Audrey Eisen, a Ph.D. student, articulated her concern perfectly when she wrote:

Along with my sadness came a realization that if such

legislation passed the right to safe second trimester

termination of pregnancies might not remain available to

those women who come after me. In this event, I don't know

how these women will endure; I don't know how I would have

endured.

I also met with Maureen Britell yesterday. Her daughter had developed a disorder where the brain stem develops. It is a disorder instead of a brain. After consulting with the experts at New England Medical Center, her family, and friends, she terminated her pregnancy. And listen to what she says:

Now I'm sharing my story not only as a mother who would be

banned from having an abortion, but as a military wife. I

find the timing of this bill highly offensive, as we military

families are just days away from sending our loved ones into

armed combat. I resent the administration using families like

mine as a cloak in their effort to ban reproductive health

care in this country.

Madam President, I ask unanimous consent that the full statements of both of these women be printed in the Record.

Now, if these bills were to pass, each of these women would have been forced to carry their babies to term, only to see a child with such severe abnormalities die upon or shortly after birth. Their choices would have been limited not because of their moral and religious beliefs--which I deeply respect--nor because of their medical advice--which I can't possibly second-guess--but because of their Government.

I have to respectfully disagree with my colleagues about mental health. If we have learned anything in the last several decades, it is that there is no artificial divide between mental and physical health. The mind and the body are a totally integrated system. One affects the other. I believe that mental health is health. And I believe that forcing a woman to carry a child she knows will die is an assault not only on her mental health but on our values as a nation and a free people.

Part of the reason I feel so strongly about this is because as First Lady, I had the great privilege of traveling around the world representing our country. I have been to many places I never thought I would have gone in the past. I have seen what happens in other countries. I listened to women throughout the world.

I have listened to women throughout the world who have struggled against government regimes that forced them to bear children or to abort them. The decision was taken totally out of their hands. It was left to chambers such as this to make those most personal and intimate of decisions. I will give you a few quick examples.

In pre-democratic Romania, they had a leader named Ceausescu, a Soviet style Communist dictator, who decided it was the duty of every Romanian woman to bear five children so they could build the Romanian State. So they eliminated birth control, they eliminated sex education, and they outlawed abortions.

Here is what happened to you if you were a woman in Romania during the Ceausescu regime: Once a month you would be rounded up at your workplace. You would be taken to a government-controlled health clinic. You would be told to disrobe while you were standing in line. You would get up on the table. You would be examined by a government doctor with a government secret police officer watching. And if you were pregnant, you would be monitored to make sure you didn't do anything to that pregnancy.

When I first heard this, I was dumbfounded. I said: ``Please, that cannot be true.''

That is what happened. If a woman failed to conceive, her family was fined a celibacy tax of up to 10 percent of their monthly salary.

The terrible result was many children were born who were abandoned, who were left to be raised in government-run orphanages. We all know what happened when unfortunately HIV-tainted blood was used to help some of those children for medical reasons, and there was a huge outbreak of HIV/AIDS among these Romanian orphans.

Now go to the opposite side of the world and the opposite side of this debate. In China, local government officials used to monitor women's menstrual cycles and their use of contraceptives because they had the opposite view--no more than one child. So whether it was Romania saying you have to have children for the good of the state, or China saying you can only have one child for the good of the state, the government was telling us what we were supposed to do with our bodies.

If you wanted to have a child in China, you needed to get permission or face punishment. After you had your one allotted child, in some parts of China, you could be sterilized against your will or forced to have an abortion.

Today women in Romania and China are working to ensure their countries' family planning practices are voluntary and respectful of individual rights.

I don't think we could dismiss these examples. I have seen where government gets this kind of power, it can be quickly misused. The old standard maxim by Lord Acton: Power corrupts; absolute power corrupts absolutely.

I raise these issues not because they are part of the past or because they happened somewhere far away, but because I can guarantee you, standing here as a Senator, if we go down this path, you are going to have the same kind of overzealous, interfering prosecutors and police officials doing the

very same kinds of things in this country.

Why did we ever have to do Roe v. Wade to begin with? Some States like mine, let abortion, as long as it was done safely and legally, occur under certain circumstances before Roe. Why did we have to have a Supreme Court decision? We had to have it because in many parts of the country these kinds of decisions were not permitted to be made by individual women.

Look at the progress we have made. The U.S. abortion rate is now at the lowest level it has been since 1974. When I was First Lady, I helped to launch the National Campaign to Prevent Teen Pregnancy. We increased education and public awareness. And since 1991, teen pregnancy has also declined. We learned that prevention and education, teaching people to make good decisions, really did work. But that is not what we are talking about here. We are talking about those few rare cases.

We are talking about those few rare cases when a doctor had to look across a desk at a woman and say, I hate to tell you this, but the baby you wanted, the baby you care so much about, that you are carrying, has a terrible abnormality.

We had a chance yesterday to build on these successes and do even more for women's health and to prevent unwanted and unsafe pregnancies. Senator Murray's amendment would have increased access to contraceptive coverage by ensuring basic fairness for women in preventing health plans from discriminating against contraceptive coverage in their prescription drug plans. Yet my colleagues did not vote for that. They would much rather criminalize a health procedure than improve women's health. Senator Murray's amendment would have also provided Medicaid and CHIP coverage for pregnant women and their newborns. Yet again, we defeated that on a budget point of order because we are not really interested in women's health. That is not really what this debate is about.

I have to ask myself, why do we, as government officials, expect we can make these decisions? We know that people of means will always be able to get any health care procedure they deem necessary. That is the way it was before Roe v. Wade. That is the way it will be after this passes the Senate.

So who are we really leaving out? We are leaving out the vast majority of American women, middle income women, working women who can't get on an airplane to go to Sweden or some other place. I have also seen the results of that. In a hospital in northeast Brazil, a woman's hospital I visited, I went up and down the corridors. Half the women were there for the most wonderful of reasons, because they just had a baby. The other half were there because of problems they had encountered, mostly because of botched back-alley, illegal abortions. Some of them lost their fertility forever; some of them lost their lives.

When I asked the minister of health what they were going to do about this, he said to me: This is a classic case where it is the poor, the middle class that suffer. The rich can get whatever health care they need. We can make it illegal to get abortions. That doesn't bother the rich. There has always been a double standard. If you are rich, you get what you need. If you are poor, you are left to the back alleys.

That is one of the other reasons we had to do Roe v. Wade, because is it fair that we have that kind of distinction made on the basis of class or income instead of the basis of law?

We are facing a moment of historic importance, but not about what we should be debating at this time in our history. I only wish this legislation were not before us. But now that it is, we have to educate the American public.

I will end by referring again to the young woman, Mrs. Eisen, who was in my office yesterday, about 25 years younger than I am. Hard to imagine. She said: I had no idea that the decision I made with my husband and my doctor to deal with this genetic abnormality was something I could have never had under the laws of where I lived before, and that if this passes, it will become illegal in the future.

I said: Well, you didn't have to think about that. That was something that, thankfully, we took off the national agenda. But there are those who, from very deeply held beliefs, which I respect, would wish to substitute the Government's decision, just like they did in Romania and China, or substitute the roll of the economic dice, such as happens in Brazil and elsewhere for what should be a difficult, painful, intimate, personal decision.

This bill is not only ill-advised, it is also unconstitutional. I understand what the other side wants to do. They are hoping to get somebody new on the Supreme Court and to turn the clock back completely, to overrule Roe v. Wade, which is why the Senator from Iowa has such a timely amendment.

Is this bill really about what the sponsors say, or is it, as they candidly admit, the beginning of the end--to go back in this country to back-alley abortions, to women dying from botched, illegal procedures? I think you can draw your own conclusions.

It is up to the American public to determine whether they want medical decisions being criminalized by this Senate. Thank you.

Yes, on the Senator's time.

Yes, I do.

That is what I believe based on what I consider to be the slippery slope of the legislative language that you have carefully and cleverly crafted in this bill.

Will the Senator permit me to respond to his statement?

I heard the Senator from Massachusetts referencing the fact that, legal or illegal, this is not going to prevent abortions where they are necessary.

My reading of the legislative language you have put forth, makes a very clear argument that this is a slippery slope; that there are going to be not only difficulties in defining procedures, but the fact is that once you have criminalized this procedure, what doctor will perform any medically necessary procedure? There is no reason to believe any doctor would put his practice and his life at risk.

As we know right now, a trial is going on in Buffalo, NY, for the murder of a doctor who provided such services.

I respond to the Senator from Pennsylvania that I think it is extreme when the Government prescribes medical procedures that may--despite their not being ones that most of us would ever hope to have experienced by any loved one--be necessary in certain specific events, that were medically determined.

Well, I think the Senator from Pennsylvania is posing a false syllogism. Clearly, if people are told in a poll about the kinds of procedures that might be medically necessary out of context, I can certainly understand why the reaction might be that is not something that we want to talk about, not something we want to think about. But what I do think is extreme is making a decision in this body to outlaw a medical procedure that may be required and medically necessary.

You know, on the Senator's point, I am not arguing against any public education effort, any proselytizing, any means whatsoever to persuade people about what choice they should make. I don't, in fact, think that we have done enough to educate the public about reproductive health, about how to prevent unsafe and unwanted pregnancies, about how to improve contraception, and about what is really at stake in this debate over a women's right to make decisions about her own reproductive health. But for the Senator to imply that there are never instances of abnormalities and problems like the ones represented by the women in my office yesterday, which would be outlawed by your legislation, I believe is deceptive.

We could solve this, as we have now for 20, 30 years, by saying this is a debate that does not belong in the United States Senate. It belongs in the hearts, minds, consciences of women and their loved ones, and in the medical offices of America, not the U.S. Senate.

Will the Senator yield?

The Senator from Iowa got in first.

Does the Senator's legislation make exceptions for serious life-threatening abnormalities or babies who are in such serious physical condition that they will not live outside the womb?

That is the point.

No----

To respond, if I could, to the Senator from Pennsylvania, my great hope is that abortion becomes rarer and rarer. I would only add that during the 1990s, it did, and we were making great progress. These decisions, in my view, have no place in the law, so they should not be drawing distinctions in the law. This ought to be left to the family involved.

The very fact the Senator from Pennsylvania does not have such a distinction under any circumstances, I think, demonstrates clearly the fallacy in this approach to have a government making such tremendously painful and personal and intimate decisions.

If the Senator will yield for one final point, I want the Record to be very clear that I value every single life and every single person, but if the Senator can explain to me how the U.S. Government, through the criminal law process, will be making these decisions without infringing upon fundamental rights, without imposing onerous burdens on women and their families, I would be more than happy to listen. But based on my experience and my understanding of how this has worked in other countries, from Romania to China, you are about to set up----

Madam President, if I can ask the Senator for one final point.

Is the Senator aware that in the very poll he cited, there is another finding? When Americans were asked if a law should be passed with no health exemption, 59 percent said no, it should not pass.

Mr. President, I have an amendment at the desk, and I ask for its immediate consideration.

Mr. President, the amendment I have offered basically expresses the sense of the Senate in support of the Supreme Court decision in Roe v. Wade. With all of the legislation that continues to come up and chip away at Roe v. Wade, I decided it was important for us in the Senate to go on record that this historic decision was appropriate and should not be overturned.

I let the clerk read the full text of the amendment because it is very short and to the point. I offered this amendment 4 years ago on similar legislation that came before this body. The disposition of that amendment at that time, if I am not mistaken, was 51 to 47 in passage. There were some who were

concerned about a couple of the findings. The difference between this amendment and the one I offered 4 years ago is basically two findings have been removed and the only findings left are just the findings that pertain only to Roe v. Wade.

This amendment is very simple, very straightforward. Basically, it puts us on record of saying the decision in Roe v. Wade on January 22, 1973, was appropriate and should not be overturned. I believe it is important that we remind ourselves about this decision as we get into the debate on this so-called partial-birth abortion--especially when this bill changes. That is different than what it was 4 years ago, as we try to parse words, trying to anticipate every medical procedure that might be performed by a doctor, getting into issues this Senator does not believe we are adequately prepared or equipped to do in terms of knowledge of all of the ramifications of certain medical procedures.

I want to make sure with all of this going on that we send a strong signal to the women of this country that Roe v. Wade is appropriate, it was a good decision, and it is not going to be overturned.

I assume maybe there are those in this body who want to see it overturned. I can accept that as their opinion and their view, but I think it is important for people to know where we stand on that decision.

As we all know, the U.S. Supreme Court announced its decision in Roe v. Wade as a challenge to a Texas statute that made it a crime to perform an abortion unless the woman's life was at stake. The case had been filed by Jane Roe, an unmarried woman, who wanted to safely and legally end her pregnancy.

Siding with Roe, the Court struck down the Texas law. In its ruling, the Court recognized for the first time that the constitutional right to privacy ``is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.'' But the decision also set some rules.

The Court recognized that the right to privacy is not absolute, and that any State has a valid interest in safeguarding maternal health, maintaining medical standards, and protecting potential life. A State's interest in ``potential life'' is not compelling, the Court said, until viability, the point in pregnancy in which there is a reasonable possibility for the sustained survival of the fetus outside the womb.

A State may, but is not required, to prohibit abortion after viability, except when it is necessary to protect a woman's life or her health. I add that for emphasis, ``or her health.''

This is what my resolution is all about: To say that we agree that Roe v. Wade was an appropriate decision and it should not be overturned.

The constitutional right to a private decision in this matter is no more negotiable than the freedom to speak or the freedom to worship.

Before the 1973 landmark ruling of Roe v. Wade, it is estimated that each year 1.2 million women resorted to illegal abortion, despite the known hazards of frightening trips to dangerous locations in strange parts of town; of whiskey as an anesthetic; of ``doctors'' who were often marginal or unlicensed practitioners, sometimes alcoholic, sometimes sexually abusive; unsanitary conditions; incompetent treatment; hemorrhage; disfiguration and death.

By invalidating laws that forced women to resort to back-alley abortion; Roe was directly responsible for saving women's lives.

Only 10 pieces of legislation were introduced in either the House or Senate before the Roe decision. But in the 30 years since the ruling, more than 1,000 separate legislative proposals have been introduced. The majority of these bills sought to restrict a womans right to choose.

Unfortunately, what is often lost in the rhetoric and in some of those proposals--is the real significance of the Roe decision.

The Roe decision recognized the right of women to make their own decisions about their reproductive health. The decision whether to bear a child is profoundly private and life-altering. As the Roe Court understood, without the right to make autonomous decisions about pregnancy, a woman could not participate freely and equally in society.

Roe not only established a woman's reproductive freedom, it was also central to women's continued progress toward full and equal participation in American life. In the 26 years since Roe, the variety and level of women's achievements have reached a higher level. As the Supreme Court observed in 1992:

The ability of women to participate equally in the economic

and social life of the Nation has been facilitated by their

ability to control their reproductive lives.

As I have said on many occasions in the past, going back almost 20 years, I do not believe that any abortion is desirable. I do not think anyone does. As a father, I have struggled with this issue many times in the past. However, I do not believe that it is appropriate to insist that my personal views be the law of the land, just as I do not think the personal views of the Senator from Pennsylvania, however strong he may hold them, ought to be the law of the land.

So what should Congress do?

If we are truly interested in both maintaining a woman's constitutional right to control her own reproductive life, and at the same time trying to limit the number of abortions in our society, there is action we can take. We can increase funding for family planning. Try getting that through on the floor of the Senate. We can increase funding for abstinence-only education. We have done some of that. We can mandate insurance coverage for contraception. We still need to do that. We do not, but we should mandate it.

We can provide more support for contraception research. Unfortunately, the Senate yesterday decided not to take these steps that could reduce the number of abortions. That was the amendment offered by my colleague from Washington, Senator Murray.

I strongly urge my colleagues to support this resolution. I believe it would establish the one important principle that we should agree on--that we will not strip away a woman's fundamental right to choose, and that is what this amendment does.

Further, I quote from Justices O'Connor, Kennedy, and Souter in Casey:

At the heart of liberty is the right to define one's own

concept of existence, of meaning of the universe and of the

mystery of human life. Beliefs about these matters could not

define the attributes of personhood were they formed under

compulsion of the State.

I am going to read that again because it is such a profound statement:

At the heart of liberty is the right to define one's own

concept of existence, of meaning of the universe and of the

mystery of human life. Beliefs about these matters could not

define the attributes of personhood were they formed under

the compulsion of the State.

I think that is the essence of this issue, whether we will use the heavy hand of the State to enforce certain individuals' concepts of when life begins, how life begins, when a person can have an abortion, when a person cannot.

Yes, it is true, people are divided on this issue. Some people are uncertain about it. I quarrel with myself all the time about it, because it is as multifaceted as there are numbers of humans on the face of the Earth.

I would not sit in judgment on any person who would choose to have an abortion, especially a woman who went through the terrifying, agonizing, and soul-wrenching procedures of having a late-term abortion because her health or her life is in danger. That must be one of the most soul-wrenching experiences a person can go through. I just do not understand how we can be so presumptuous to think that we in the Senate can answer each one of those individual cases, with all the different facets that may be involved, and yet that is what some in the Senate believe the Senate and the Congress should do.

No, I do not want to sit in judgment on that, and I do not believe any of us ought to.

That is why, again, I think it is particularly important that we cut through all the folderol that surrounds this issue and get to the heart of it, which is Roe v. Wade. This is the heart of what we are talking about.

There are those who want to come along and change it and make it more complex, indecipherable, benefiting maybe one person one way, adding to the detriment of another person another way, so that we are right back where we were before Roe v. Wade was decided.

I believe very strongly that we need to express ourselves on this sense of the Senate resolution. I appreciate the agreement from the manager of the bill and our majority whip to have an up-or-down rollcall vote. I believe it is that important, and I appreciate their willingness to have that up-or-down vote.

I am sure I will have more to say later on. I believe there are 2 \1/ 2\ hours of time divided equally, if I am not mistaken.

How much time have I consumed?

I thank the Presiding Officer, and I yield the floor.

I yield whatever time the Senator desires.

I yield 10 minutes to the Senator from Massachusetts.

Madam President, I yield 15 minutes to the distinguished Senator from New York.

I yield an additional 5 minutes to the Senator from New York.

I yield the Senator an additional 5 minutes.

Will the Senator yield for a question?

Go ahead. The Senator is engaged in debate. I have a question.

I ask the Senator to yield.

The Senator has been very good about yielding for questions. If the Senator needs more time, I will join him in getting unanimous consent to give the Senator more time, if he needs it, because he has been very good about getting into a discussion. Do not worry about time. We will give you whatever time you want.

I would like the Senator to yield, on my time or his.

Madam President, I wish to ask the Senator a question. There are a number of issues about the Senator's bill that bothers me. One is how tightly it is drawn and it affords no leeway whatsoever for certain special cases. We talked about the health of the mother. A woman who came to see me some time ago--I do not know if this case is atypical, but I know it happened to one person. I know it is happening to others.

She and her husband had been trying to have children. She became pregnant. She found out the child's--basically the brain was outside the head.

I do not know exactly what that all means. Anyway, I do know she was told by her doctor that there was a possibility--he did not know how remote--but there was a distinct possibility that if she carried this child to term, which was going to die right away, that because of other complications she had, she might not be able to have other children. I am telling you this is what was told----

I would prefer we stick with Roe v. Wade which would allow my daughter to go to a hospital and to have a doctor perform a procedure on her that in the doctor's best judgment was the safest for her.

If I can just respond further, if the doctor decided this type of procedure was safer than a cesarean section, for example, which I would submit to my friend from Pennsylvania is every bit as gruesome if you would like to describe it, but it is up to the doctor to decide what is the safest procedure. That is what I would want my daughter to have, so that is why I have my amendment on Roe v. Wade.

I say to my friend from Pennsylvania, I am not a doctor. I do not know. That is why these are the kinds of things that are not really up to us to decide to tell a doctor what is the safest and what is not the safest, or how to go about it.

Now, maybe we are getting somewhere. I heard my friend ask me about what I would want my own daughter to do if she was ever confronted with this, and I said I would want her to have the best care. I would want her to have a board-certified obstetrician/gynecol- ogist take care of her in a safe, healthy, legal setting. That is why I have offered my amendment. That is why my amendment is pending right now because I want us to say once and for all again that Roe v. Wade is the law of the land, that if, God forbid, my daughter ever had a situation like that, she could go into a hospital, that she would not have the law hounding her, and that she could have a board-certified obstetrician.

So maybe we are getting somewhere. Maybe my friend is now going to support my amendment.

How much time remains on our side?

I yield 10 minutes to the Senator from California.

I thank the Senator for her stalwart support for all the years I have known her, for the principles and the law of Roe v. Wade, to ensure that the women of America have the right to choose. I thank her for her stalwart support, and I thank her for her comments this afternoon on behalf of this amendment I have offered.

I ask the Senator this question. We heard from our friend from Pennsylvania about certain polls that were taken about a certain procedure and this and that. But this amendment is about Roe v. Wade. Is the Senator familiar with polls taken in this country from women about whether or not they would support keeping Roe v. Wade or overturning Roe v. Wade? Is the Senator familiar with some of those polls?

That is exactly right. I say again to the Senator, when it is defined to people, both men and women, what Roe v. Wade really does in terms of the first 3 months and then after that what the State can do, but with exceptions for life and health of the mother, as the Senator so rightfully pointed out, the overwhelming majority of the American people say yes, that ought to inure to the individual and not to the Government.

I further ask the Senator, would she concur in this view, that perhaps what this is all about is really not about a procedure but it really is about fundamentally getting at Roe v. Wade? I say that to my friend from California because 4 years ago when this came up, this Senator along with the Senator from California offered the same amendment. It said that Roe v. Wade--we recognize it as the law of the land and it should not be overturned.

I yield another 5 minutes to the Senator from California.

Is the Senator familiar with the outcome of that vote? That vote at that time--I remember it precisely--was 51 to 47. Two people who are not here had announced they were opposed to it, so it was 51 to 49. By 2 votes, the Senate--49 Senators said Roe v. Wade should be overturned. That is how close we are here. That is why the people of this country ought to recognize that is what this debate is about--getting at Roe v. Wade; nothing more, nothing less.

I thank the Senator.

How much time do I have, Madam President?

I yield 5 minutes to the Senator from Washington.

Madam President, I yield myself a couple minutes, and then I will close up. I know we have some people who need to vote here shortly.

Madam President, let us be clear about one thing. The amendment I have offered is, I think, as straightforward in its approach as Roe v. Wade is in its decision; that is, it simply just states Roe v. Wade is the law of the land and should not be overturned. That is what we are saying on this amendment.

I have not gotten much into the debate on the underlying bill itself. I may later on. I have left that to others. I just feel very strongly that in all the smoke and fog and haze and debate about this procedure and that procedure, and all of the kinds of philosophical debates that are being made--and some of them are very good. I thank the Senator from Pennsylvania. He has been very good about engaging in discussions on the floor. Maybe later on I will get into a little more philosophical debate with him on some of these things.

But this amendment simply is about Roe v. Wade. That is all this amendment is. It is for us to express ourselves, to express ourselves clearly and unequivocally that the Senate believes Roe v. Wade is the law of the land and should not be overturned.

Let us send a signal to the women of this country that we are not going to turn the clock back, we are not going to turn the clock back to what Senator Boxer from California said: the dark days when they went to back alleys.

If my daughter, God forbid, ever found herself in a position like that, as I said earlier, yes, I would want her to go to the best hospital, have a doctor, have a good obstetrician, and not be forced into a back alley. I want it legal. That is what Roe v. Wade is about, and that is what this amendment is about: to keep it safe, legal, and, yes, rare in the United States.

I yield back my time.

Madam President, I ask unanimous consent that Senator Edwards and Senator Cantwell both be added as cosponsors, and Senator Boxer be added as a cosponsor, and Senator Kerry.

Madam President, I move to reconsider the vote.