[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 3 Enrolled Bill (ENR)]
S.3
One Hundred Eighth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the seventh day of January, two thousand and three
An Act
To prohibit the procedure commonly known as partial-birth abortion.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Partial-Birth Abortion Ban Act of
2003''.
SEC. 2. FINDINGS.
The Congress finds and declares the following:
(1) A moral, medical, and ethical consensus exists that the
practice of performing a partial-birth abortion--an abortion in
which a physician deliberately and intentionally vaginally delivers
a living, unborn child's body until either the entire baby's head
is outside the body of the mother, or any part of the baby's trunk
past the navel is outside the body of the mother and only the head
remains inside the womb, for the purpose of performing an overt act
(usually the puncturing of the back of the child's skull and
removing the baby's brains) that the person knows will kill the
partially delivered infant, performs this act, and then completes
delivery of the dead infant--is a gruesome and inhumane procedure
that is never medically necessary and should be prohibited.
(2) Rather than being an abortion procedure that is embraced by
the medical community, particularly among physicians who routinely
perform other abortion procedures, partial-birth abortion remains a
disfavored procedure that is not only unnecessary to preserve the
health of the mother, but in fact poses serious risks to the long-
term health of women and in some circumstances, their lives. As a
result, at least 27 States banned the procedure as did the United
States Congress which voted to ban the procedure during the 104th,
105th, and 106th Congresses.
(3) In Stenberg v. Carhart, 530 U.S. 914, 932 (2000), the
United States Supreme Court opined ``that significant medical
authority supports the proposition that in some circumstances,
[partial birth abortion] would be the safest procedure'' for
pregnant women who wish to undergo an abortion. Thus, the Court
struck down the State of Nebraska's ban on partial-birth abortion
procedures, concluding that it placed an ``undue burden'' on women
seeking abortions because it failed to include an exception for
partial-birth abortions deemed necessary to preserve the ``health''
of the mother.
(4) In reaching this conclusion, the Court deferred to the
Federal district court's factual findings that the partial-birth
abortion procedure was statistically and medically as safe as, and
in many circumstances safer than, alternative abortion procedures.
(5) However, substantial evidence presented at the Stenberg
trial and overwhelming evidence presented and compiled at extensive
congressional hearings, much of which was compiled after the
district court hearing in Stenberg, and thus not included in the
Stenberg trial record, demonstrates that a partial-birth abortion
is never necessary to preserve the health of a woman, poses
significant health risks to a woman upon whom the procedure is
performed and is outside the standard of medical care.
(6) Despite the dearth of evidence in the Stenberg trial court
record supporting the district court's findings, the United States
Court of Appeals for the Eighth Circuit and the Supreme Court
refused to set aside the district court's factual findings because,
under the applicable standard of appellate review, they were not
``clearly erroneous''. A finding of fact is clearly erroneous
``when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed''. Anderson v. City of
Bessemer City, North Carolina, 470 U.S. 564, 573 (1985). Under this
standard, ``if the district court's account of the evidence is
plausible in light of the record viewed in its entirety, the court
of appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the
evidence differently''. Id. at 574.
(7) Thus, in Stenberg, the United States Supreme Court was
required to accept the very questionable findings issued by the
district court judge--the effect of which was to render null and
void the reasoned factual findings and policy determinations of the
United States Congress and at least 27 State legislatures.
(8) However, under well-settled Supreme Court jurisprudence,
the United States Congress is not bound to accept the same factual
findings that the Supreme Court was bound to accept in Stenberg
under the ``clearly erroneous'' standard. Rather, the United States
Congress is entitled to reach its own factual findings--findings
that the Supreme Court accords great deference--and to enact
legislation based upon these findings so long as it seeks to pursue
a legitimate interest that is within the scope of the Constitution,
and draws reasonable inferences based upon substantial evidence.
(9) In Katzenbach v. Morgan, 384 U.S. 641 (1966), the Supreme
Court articulated its highly deferential review of congressional
factual findings when it addressed the constitutionality of section
4(e) of the Voting Rights Act of 1965. Regarding Congress' factual
determination that section 4(e) would assist the Puerto Rican
community in ``gaining nondiscriminatory treatment in public
services,'' the Court stated that ``[i]t was for Congress, as the
branch that made this judgment, to assess and weigh the various
conflicting considerations * * *. It is not for us to review the
congressional resolution of these factors. It is enough that we be
able to perceive a basis upon which the Congress might resolve the
conflict as it did. There plainly was such a basis to support
section 4(e) in the application in question in this case.''. Id. at
653.
(10) Katzenbach's highly deferential review of Congress'
factual conclusions was relied upon by the United States District
Court for the District of Columbia when it upheld the ``bail-out''
provisions of the Voting Rights Act of 1965 (42 U.S.C. 1973c),
stating that ``congressional fact finding, to which we are inclined
to pay great deference, strengthens the inference that, in those
jurisdictions covered by the Act, state actions discriminatory in
effect are discriminatory in purpose''. City of Rome, Georgia v.
U.S., 472 F. Supp. 221 (D.D.C. 1979) aff'd City of Rome, Georgia v.
U.S., 446 U.S. 156 (1980).
(11) The Court continued its practice of deferring to
congressional factual findings in reviewing the constitutionality
of the must-carry provisions of the Cable Television Consumer
Protection and Competition Act of 1992. See Turner Broadcasting
System, Inc. v. Federal Communications Commission, 512 U.S. 622
(1994) (Turner I) and Turner Broadcasting System, Inc. v. Federal
Communications Commission, 520 U.S. 180 (1997) (Turner II). At
issue in the Turner cases was Congress' legislative finding that,
absent mandatory carriage rules, the continued viability of local
broadcast television would be ``seriously jeopardized''. The Turner
I Court recognized that as an institution, ``Congress is far better
equipped than the judiciary to `amass and evaluate the vast amounts
of data' bearing upon an issue as complex and dynamic as that
presented here'', 512 U.S. at 665-66. Although the Court recognized
that ``the deference afforded to legislative findings does `not
foreclose our independent judgment of the facts bearing on an issue
of constitutional law,''' its ``obligation to exercise independent
judgment when First Amendment rights are implicated is not a
license to reweigh the evidence de novo, or to replace Congress'
factual predictions with our own. Rather, it is to assure that, in
formulating its judgments, Congress has drawn reasonable inferences
based on substantial evidence.''. Id. at 666.
(12) Three years later in Turner II, the Court upheld the
``must-carry'' provisions based upon Congress' findings, stating
the Court's ``sole obligation is `to assure that, in formulating
its judgments, Congress has drawn reasonable inferences based on
substantial evidence.''' 520 U.S. at 195. Citing its ruling in
Turner I, the Court reiterated that ``[w]e owe Congress' findings
deference in part because the institution `is far better equipped
than the judiciary to ``amass and evaluate the vast amounts of
data'' bearing upon' legislative questions,'' id. at 195, and added
that it ``owe[d] Congress' findings an additional measure of
deference out of respect for its authority to exercise the
legislative power.''. Id. at 196.
(13) There exists substantial record evidence upon which
Congress has reached its conclusion that a ban on partial-birth
abortion is not required to contain a ``health'' exception, because
the facts indicate that a partial-birth abortion is never necessary
to preserve the health of a woman, poses serious risks to a woman's
health, and lies outside the standard of medical care. Congress was
informed by extensive hearings held during the 104th, 105th, 107th,
and 108th Congresses and passed a ban on partial-birth abortion in
the 104th, 105th, and 106th Congresses. These findings reflect the
very informed judgment of the Congress that a partial-birth
abortion is never necessary to preserve the health of a woman,
poses serious risks to a woman's health, and lies outside the
standard of medical care, and should, therefore, be banned.
(14) Pursuant to the testimony received during extensive
legislative hearings during the 104th, 105th, 107th, and 108th
Congresses, Congress finds and declares that:
(A) Partial-birth abortion poses serious risks to the
health of a woman undergoing the procedure. Those risks
include, among other things: An increase in a woman's risk of
suffering from cervical incompetence, a result of cervical
dilation making it difficult or impossible for a woman to
successfully carry a subsequent pregnancy to term; an increased
risk of uterine rupture, abruption, amniotic fluid embolus, and
trauma to the uterus as a result of converting the child to a
footling breech position, a procedure which, according to a
leading obstetrics textbook, ``there are very few, if any,
indications for * * * 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 unborn 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.
(B) There is no credible medical evidence that partial-
birth abortions are safe or are safer than other abortion
procedures. No controlled studies of partial-birth abortions
have been conducted nor have any comparative studies been
conducted to demonstrate its safety and efficacy compared to
other abortion methods. Furthermore, there have been no
articles published in peer-reviewed journals that establish
that partial-birth abortions are superior in any way to
established abortion procedures. Indeed, unlike other more
commonly used abortion procedures, there are currently no
medical schools that provide instruction on abortions that
include the instruction in partial-birth abortions in their
curriculum.
(C) A prominent medical association has concluded that
partial-birth abortion is ``not an accepted medical practice'',
that it has ``never been subject to even a minimal amount of
the normal medical practice development,'' that ``the relative
advantages and disadvantages of the procedure in specific
circumstances remain unknown,'' and that ``there is no
consensus among obstetricians about its use''. The association
has further noted that partial-birth abortion is broadly
disfavored by both medical experts and the public, is
``ethically wrong,'' and ``is never the only appropriate
procedure''.
(D) Neither the plaintiff in Stenberg v. Carhart, nor the
experts who testified on his behalf, have identified a single
circumstance during which a partial-birth abortion was
necessary to preserve the health of a woman.
(E) The physician credited with developing the partial-
birth abortion procedure has testified that he has never
encountered a situation where a partial-birth abortion was
medically necessary to achieve the desired outcome and, thus,
is never medically necessary to preserve the health of a woman.
(F) A ban on the partial-birth abortion procedure will
therefore advance the health interests of pregnant women
seeking to terminate a pregnancy.
(G) In light of this overwhelming evidence, Congress and
the States have a compelling interest in prohibiting partial-
birth abortions. In addition to promoting maternal health, such
a prohibition will draw a bright line that clearly
distinguishes abortion and infanticide, that preserves the
integrity of the medical profession, and promotes respect for
human life.
(H) Based upon Roe v. Wade, 410 U.S. 113 (1973) and Planned
Parenthood v. Casey, 505 U.S. 833 (1992), a governmental
interest in protecting the life of a child during the delivery
process arises by virtue of the fact that during a partial-
birth abortion, labor is induced and the birth process has
begun. This distinction was recognized in Roe when the Court
noted, without comment, that the Texas parturition statute,
which prohibited one from killing a child ``in a state of being
born and before actual birth,'' was not under attack. This
interest becomes compelling as the child emerges from the
maternal body. A child that is completely born is a full, legal
person entitled to constitutional protections afforded a
``person'' under the United States Constitution. Partial-birth
abortions involve the killing of a child that is in the
process, in fact mere inches away from, becoming a ``person''.
Thus, the government has a heightened interest in protecting
the life of the partially-born child.
(I) This, too, has not gone unnoticed in the medical
community, where a prominent medical association has recognized
that partial-birth abortions are ``ethically different from
other destructive abortion techniques because the fetus,
normally twenty weeks or longer in gestation, is killed outside
of the womb''. According to this medical association, the
```partial birth' gives the fetus an autonomy which separates
it from the right of the woman to choose treatments for her own
body''.
(J) Partial-birth abortion also confuses the medical,
legal, and ethical duties of physicians to preserve and promote
life, as the physician acts directly against the physical life
of a child, whom he or she had just delivered, all but the
head, out of the womb, in order to end that life. Partial-birth
abortion thus appropriates the terminology and techniques used
by obstetricians in the delivery of living children--
obstetricians who preserve and protect the life of the mother
and the child--and instead uses those techniques to end the
life of the partially-born child.
(K) Thus, by aborting a child in the manner that
purposefully seeks to kill the child after he or she has begun
the process of birth, partial-birth abortion undermines the
public's perception of the appropriate role of a physician
during the delivery process, and perverts a process during
which life is brought into the world, in order to destroy a
partially-born child.
(L) The gruesome and inhumane nature of the partial-birth
abortion procedure and its disturbing similarity to the killing
of a newborn infant promotes a complete disregard for infant
human life that can only be countered by a prohibition of the
procedure.
(M) The vast majority of babies killed during partial-birth
abortions are alive until the end of the procedure. It is a
medical fact, however, that unborn infants at this stage can
feel pain when subjected to painful stimuli and that their
perception of this pain is even more intense than that of
newborn infants and older children when subjected to the same
stimuli. Thus, during a partial-birth abortion procedure, the
child will fully experience the pain associated with piercing
his or her skull and sucking out his or her brain.
(N) Implicitly approving such a brutal and inhumane
procedure by choosing not to prohibit it will further coarsen
society to the humanity of not only newborns, but all
vulnerable and innocent human life, making it increasingly
difficult to protect such life. Thus, Congress has a compelling
interest in acting--indeed it must act--to prohibit this
inhumane procedure.
(O) For these reasons, Congress finds that partial-birth
abortion is never medically indicated to preserve the health of
the mother; is in fact unrecognized as a valid abortion
procedure by the mainstream medical community; poses additional
health risks to the mother; blurs the line between abortion and
infanticide in the killing of a partially-born child just
inches from birth; and confuses the role of the physician in
childbirth and should, therefore, be banned.
SEC. 3. PROHIBITION ON PARTIAL-BIRTH ABORTIONS.
(a) In General.--Title 18, United States Code, is amended by
inserting after chapter 73 the following:
``CHAPTER 74--PARTIAL-BIRTH ABORTIONS
``Sec.
``1531. Partial-birth abortions prohibited.
``Sec. 1531. Partial-birth abortions prohibited
``(a) Any physician who, in or affecting interstate or foreign
commerce, knowingly performs a partial-birth abortion and thereby kills
a human fetus shall be fined under this title or imprisoned not more
than 2 years, or both. This subsection does not apply to a partial-
birth abortion that is necessary to save the life of a mother whose
life is endangered by a physical disorder, physical illness, or
physical injury, including a life-endangering physical condition caused
by or arising from the pregnancy itself. This subsection takes effect 1
day after the enactment.
``(b) As used in this section--
``(1) the term `partial-birth abortion' means an abortion in
which the person performing the abortion--
``(A) 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 breech presentation, any part of the fetal trunk
past the navel is outside the body of the mother, for the
purpose of performing an overt act that the person knows will
kill the partially delivered living fetus; and
``(B) performs the overt act, other than completion of
delivery, that kills the partially delivered living fetus; and
``(2) the term `physician' means a doctor of medicine or
osteopathy legally authorized to practice medicine and surgery by
the State in which the doctor performs such activity, or any other
individual legally authorized by the State to perform abortions:
Provided, however, That any individual who is not a physician or
not otherwise legally authorized by the State to perform abortions,
but who nevertheless directly performs a partial-birth abortion,
shall be subject to the provisions of this section.
``(c)(1) The father, if married to the mother at the time she
receives a partial-birth abortion procedure, and if the mother has not
attained the age of 18 years at the time of the abortion, the maternal
grandparents of the fetus, may in a civil action obtain appropriate
relief, unless the pregnancy resulted from the plaintiff's criminal
conduct or the plaintiff consented to the abortion.
``(2) Such relief shall include--
``(A) money damages for all injuries, psychological and
physical, occasioned by the violation of this section; and
``(B) statutory damages equal to three times the cost of the
partial-birth abortion.
``(d)(1) A defendant accused of an offense under this section may
seek a hearing before the State Medical Board on whether the
physician's conduct was necessary to save the life of the mother whose
life was endangered by a physical disorder, physical illness, or
physical injury, including a life-endangering physical condition caused
by or arising from the pregnancy itself.
``(2) The findings on that issue are admissible on that issue at
the trial of the defendant. Upon a motion of the defendant, the court
shall delay the beginning of the trial for not more than 30 days to
permit such a hearing to take place.
``(e) A woman upon whom a partial-birth abortion is performed may
not be prosecuted under this section, for a conspiracy to violate this
section, or for an offense under section 2, 3, or 4 of this title based
on a violation of this section.''.
(b) Clerical Amendment.--The table of chapters for part I of title
18, United States Code, is amended by inserting after the item relating
to chapter 73 the following new item:
``74. Partial-birth abortions....................................1531''.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.