Washington, DC - The U.S. Senate today approved a conference report prohibiting doctors from performing late-term abortions in many cases. This legislation infringes upon a woman's right to choose, and many people believe that it is unconstitutional. The following is the text of a speech delivered by Senator Dianne Feinstein (D-Calif.) on the Senate Floor:

"Mr. President, I rise today to oppose the Conference Report accompanying S. 3, which some call inaccurately the 'partial birth' abortion bill.

In fact, this bill, originally introduced by Senator Santorum, is more accurately called the unconstitutional anti-choice bill, given the fact that it is flagrantly unconstitutional and its primary result will be to chill legal second-trimester abortion procedures. I voted against this Conference Report in the House-Senate Conference and also on the floor of the Senate last March.

This is the first bill since Roe v. Wade in 1973 that outlaws safe medical procedures and recriminalizes abortion. So, it is a major step back in the constant right-wing march to obliterate a woman's right to control her own reproductive system and the entire choice movement in the country.

This bill is unconstitutional for two reasons. First, the bill uses a vague definition of dilation and extraction abortion or D&X abortion (this technique is also called intact dilation and evacuation abortion [intact D&E] or, incorrectly, 'partial-birth' abortion). The bill does NOT track the scientific definition used by the American College of Obstetricians and Gynecologists. I believe that it does so purposely to impact second-trimester abortions. Because the definition is so loose, the bill will ban and otherwise interfere with perfectly legal, permissible abortion techniques. It will also have a chilling effect on doctors, who will be afraid to perform abortions other than D&X for fear that they will be subject to investigation and prosecution.

Second, the bill lacks any health exception. The Supreme Court ruled in Stenberg v. Carhart that any ban MUST have a health exception. This bill has NO health exception. Why are we bothering to pass a bill that is so clearly unconstitutional? The only reason I can think of is that the proponents do not believe that the health of a mother is sufficient reason to interrupt a pregnancy for good cause.

The supporters of the bill are not trying to remedy these constitutional defects. Rather, they are just making minor alterations to the findings in the bill. I also oppose the bill because it omits language a majority of the United States Senate added last March recognizing the importance of Roe v. Wade and stating that this important opinion should not be overturned. Unfortunately, this language was stripped out in Conference, over the strenuous opposition of Senator Boxer, Congressman Nadler, Congressman Lofgren, and myself.

A Majority of Americans Oppose this Bill

As an initial matter, I want to lay one myth to rest-that is the myth that most Americans support this bill. Supporters of the bill have repeatedly and erroneously argued that a majority of the country supports banning D&X abortion. For example, in introducing his bill, Senator Santorum stated on the floor that 'The American people clearly believe this is a procedure that should be prohibited.'

However, such statements are not borne out by recent polls. For example, last July, ABC News released a nationwide poll which showed that 61 percent of Americans oppose bans on so-called 'partial-birth' abortion procedure if a woman's health is threatened.

The bill now before us contains no health exception. That means a substantial majority of Americans think that this bill is wrong. I also want to mention a poll taken by Greenberg, Quinlan, Rosner Research Inc. between June 5, 2003 and June 12, 2003 of 1,200 likely voters. This poll found that a majority of Americans-56 percent-believe that abortion should be legal in all or most cases.

In addition, it found that the country does not want the government involved in a woman's private medical decisions. Eighty percent of voters believe that abortion is a decision that should be made between a woman and her doctor. In fact, even a majority of those who identified themselves as 'pro-life' said that a woman and her doctor should make this decision.

In stark contrast, this bill criminalizes safe abortion procedures and puts the abortion decision in the hands of the government, not the woman and her doctor.

Randall Terry

I would like to talk a little about Randall Terry, the Founder of Operation Rescue and the man who the New York Times calls 'an 'icon' of the pro-life movement.' Mr. Terry is one of the staunchest foes of the right to choose in the entire nation.

Mr. Terry is known for harboring views so strong on the abortion issue that he has been jailed dozens of times for blocking clinics and for having a human fetus delivered to former President Bill Clinton. He is also known for speaking his mind. Let me read some quotes from Mr. Terry in a press release issued through the Christian Communication Network, dated September 15, 2003. This press release is entitled 'Randall Terry, Founder of Operation Rescue says, 'Partial-Birth Abortion Ban is a Political Scam but a Public Relations Goldmine.'

Mr. Terry says that the bill before us is a 'Political Scam.' Specifically, he states that '[t]his bill, if it becomes law, may not save one child's life. The Federal courts are likely to strike it down... The bill provides political cover in an election season to cowardly 'pro-life' political leaders who have done little for the pro-life cause.' Let me repeat that. One of the strongest abortion opponents in this country says that this bill is a 'political scam.' He says that it 'may not save one child's life.' He says that '[t]he Federal courts are likely to strike it down.' He says that the bill simply 'provides political cover' to ''pro-life' political leaders.'

I believe he is right that the bill will be struck down. Mr. Terry goes on to say that 'If the President and Congress want to accomplish a small, but real step, they should outlaw all abortions after 20 weeks-the age when a baby can live outside the womb.'

His proposal is similar to an amendment that I offered on the floor of the Senate and in the joint House-Senate conference on this bill, and which was voted on both on the floor and in conference. This amendment would ban all post-viability abortions except, if determined by the doctor, such an abortion is necessary to protect the life and health of the woman.

Constitutionality

I would like to take a moment to explain in detail why I think this bill is poorly drafted and is virtually certain to be struck down by the courts. The Conference Report before us is unconstitutional for two reasons.

First, the bill attempts to ban a specific medical procedure, called a 'partial-birth abortion' but it fails to use the accepted medical definition of what surgical procedure constitutes 'partial-birth abortion.' The refusal of the sponsors of this bill to accept the medical definition of intact D&E (also called D&X) is revealing. It makes it clear that they are not interested in banning D&X; but rather, they seek to muddy the waters to make it harder for women to get a legal abortion using other legal and acceptable techniques. And that-in my view-is the underlying purpose of the bill.

The Supreme Court ruled in Stenberg v. Carhart that any ban MUST have a health exception. This bill has NO health exception. Here is what Justice O'Connor said in her deciding opinion in Stenberg v. Carhart:

'because even a post-viability proscription of abortion would be invalid absent a health exception, Nebraska's ban on pre-viability partial birth abortions, under the circumstances presented here, must include a health exception as well...... The statute at issue here, however, only excepts those procedures necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness or physical injury. This lack of a health exception necessarily renders the statute unconstitutional.'

Let me repeat that: 'This lack of a health exception necessarily renders the statute unconstitutional.' This language could not be more clear. The fact that the sponsors of this bill are ignoring the clear words of the Supreme Court is suspect. It is even more suspect given the fact that, just last year, the United States Government took the position in court that any ban on D&X MUST include a health exception. The Santorum bill, then, flies in the face of the position taken by the U.S. Department of Justice.

Let me read from a brief filed by the United States in February 2002 in Women's Medical Professional Corporation v. Bob Taft, a case in the 6^th Circuit involving an Ohio statutes prohibiting late-term abortion including D&X. According to this brief:

'the Court [in Carhart] stressed that the Nebraska statute prohibited the partial birth method of abortion except where that procedure was 'necessary to save the life of the mother,'… in violation of the Court's prior holdings in Roe v. Wade … and Planned Parenthood of Southeastern Pennsylvania v. Casey … that a State must permit abortions 'necessary, in appropriate medical judgement, for the preservation of the life or health of the mother…'

The original brief has the words 'or health' underlined. In other words, according to a brief filed by the United States Government last year, under Carhart, Roe, and Planned Parenthood, a state 'MUST' provide a health exception for the woman.

Supporters of the Santorum bill argue that they can ignore this language by throwing into the bill some questionable factual findings that a health exception is unnecessary. They argue that these so-called findings make irrelevant the Supreme Court's constitutional determination in Carhart that a health exception is necessary. But the Framers of the Constitution did not intend that Congress be able to evade Supreme Court precedent and effectively amend the Constitution by holding a hearing and generating some questionable testimony from hand-picked witnesses.

In fact, the Supreme Court has made crystal clear that Congress cannot simply ignore a constitutional ruling they dislike by adopting a contrary legislative 'finding' and telling the courts that they have to defer to it. Let me quote Chief Justice Burger on this point: 'A legislature appropriately inquires into and may declare the reasons impelling legislative action but the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution.'

I also want to quote from U.S. v. Morrison, 529 U.S. 598 (2000), a decision that struck down part of the Violence Against Women Act. While I personally disagree with this decision, we should acknowledge that it is controlling law. In that case, the Supreme Court held that 'the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality' of the challenged provision of the Violence Against Women Act (p. 614).

Here, the sponsors of S. 3 are trying to exactly what the Supreme Court said that Congress cannot do: use congressional findings to do something that it is clearly unconstitutional. The sponsors of this bill are effectively trying to overturn binding Supreme Court precedent and to rewrite the Constitution by enacting a bill that-on its face-violates Stenberg v. Carhart. They have clearly overstepped their bounds.

Roe v. Wade

One of the most disappointing aspects of this debate is that a majority of the House-Senate Conference on this bill decided to thwart the will of the Senate and strip out language recognizing the importance of Roe v. Wade.

This provision was a simple Sense of the Senate resolution. Let me read its exact language:

(1) the decision of the Supreme Court in Roe v. Wade (410 U.S. 113 (1973)) was appropriate and secures an important constitutional right; and

(2) such decision should not be overturned.

I am pleased that this amendment was added to the bill last March on a strong bipartisan vote of 52 to 46. Unfortunately, though, the similar House-passed late-term abortion bill lacks this language. Indeed, the House refused to agree to it. While I oppose the criminalization of safe abortion techniques in S. 3, I strongly support the Roe v. Wade language we added to that legislation bill. The past 30 years, since the Supreme Court upheld a woman's right to choose, has brought a great deal of change for women in America. But now, in 2003, we are about to push a women back to the 1950s.

The fact that a majority of the House-Senate Conference on this bill stripped out a Sense of the Senate language that basically just summarized current federal abortion law should be Exhibit A for anyone who doubts that this bill is really a frontal political attack on choice in America.

Post-Viability Ban

I am also disappointed that the Conference refused to accept a common-sense amendment I offered to the bill before us today. The amendment would have banned all post-viability abortions except, if determined by the doctor, such an abortion is necessary to protect the life and health of the woman. To ensure compliance with this ban, a doctor who performs a post-viability abortion on a woman whose health or life is not at risk could be fined up to $100,000.

This amendment would also have put medical decisions back into the hands of doctors. In my view, if a doctor believes such a procedure is necessary to protect a woman's life or health, then he or she should be able to perform the procedure. It's that simple. Unfortunately, a bare majority of the Conference rejected the amendment on a party-line vote.

Bill Unnecessary

Mr. President, one of the perplexing aspects of this debate is why some senators believe that the Federal government needs to be involved with this issue? Why is this legislation even necessary?

Roe v. Wade clearly and unequivocally allows states to ban all post-viability abortions unless it is necessary to protect a womans life or health and forty-one states already have bans on the books. All states are free to do so if their state legislatures so choose. The fact is, abortions this late in the pregnancy are so rare and are usually performed under such tragic circumstances, that some states have not seen the need to legislate in this area.

The whole focus of this Congress and the conservative movement has been to give power and control back to the states and eliminate the Federal government from peoples lives. Surely anyone who believes in states rights must question the logic of imposing new, Federal regulation on states in a case such as this, where states have already have the authority, and where a dominant majority of states (41) have already utilized that fight and enacted laws.

So is Federal legislation really necessary? The answer is clearly 'No.' So, I would say to my colleagues, this clearly is a political bill designed to fan the flames, invade Roe v. Wade, and weaken it substantially.

It attempts to ban a medical procedure without properly identifying that procedure in medical terms. It is so vague that it could affect far more than the procedure it seeks to ban. And it ignores the vital health interests of women who face tragic complications in their pregnancies.

But the strongest reason to vote against this bill, in my view, is that it is not the role of the Federal government to make medical decisions as to what a doctor can or cannot do. I urge my colleagues to vote against this Conference Report which is unconstitutional and lacks simple language recognizing the importance of Roe v. Wade-language supported by a bipartisan majority of this Senate.

We cannot-we must not-go back to a time without choice."

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