I. The Amendment

Mrs. FEINSTEIN. Mr. President, this amendment is simple and straightforward. It bans any abortion after viability, except when a doctor has determined that it is necessary to save the life or protect the health of the woman.

I have been a part of the Judiciary Committee now for 10 years and I have seen this bill come up in three Congresses and listened to or read testimony on this bill for three Congresses.

The first time it came up, it became very apparent to me that the definition of partial-birth abortion was too vague. I wondered why it was so vague. It looked like it covered different medical procedures.

And now, about 8 years later, I believe I know why it is so vague. I believe it is so vague because it could actually cover all abortions and therefore be a major strike against a woman's right to choose. Eighty percent of the people of this country believe that abortion must be safe and legal to preserve a woman's health. People strongly believe that this is a decision between a woman, her clergy, her doctor, and her family.

I deeply believe politicians should not be in the business of making decisions about women's reproductive rights. In my view, the Santorum legislation, S. 3, is a Trojan horse. It is not what it purports to be. It supposedly bans one procedure, D&X, but actually confuses this procedure with another, D&E, the most commonly used abortion procedure. In fact, its wording is so vague that it could be construed to criminalize all abortions.

Yesterday's Congressional Record shows that Senator Santorum--and I have great respect for my distinguished colleague--stated:

I have not been asking about medical necessity...... I have not asked for someone's opinion on what ought to be or what could be. What I have asked for is an example. I wanted a fact circumstance to be provided as to where this would be the best, this would be appropriate, this would be medically indicated.

I would like to answer Senator Santorum's question at this time, through a letter. After we heard this question, we called the University of California San Francisco Medical Center, the Department of Obstetrics, Gynecology, and Reproductive Sciences, and talked to the chief of that department at San Francisco General Hospital, who is also a full professor. His name is Philip D. Darney. Dr. Darney just sent me this letter, and I would like to read that letter into the RECORD:


Dear Senator Feinstein: I write to provide examples of the need for a ``medical exemption'' to the proposed restriction of use of the so-called ``partial birth abortion'' technique which is now before the Senate. The medical term for the technique is ``intact D&E''.

I am Chief of Obstetrics and Gynecology at San Francisco General Hospital, SFGH, where my department provides about 2,000 abortions yearly to poor women from throughout Northern California. Patients who are in the second trimester and who have special medical problems are referred to SFGH for treatment because our staff has special competence in second trimester abortion and because we can provide specialized care for women who are more likely to have a complicated pregnancy termination. Although I have not reviewed medical records in order to count the number of times we have employed intact D&E, I will provide examples of cases in which the technique was critical to safe conduct of our surgery:

A 25 year old with two previous vaginal deliveries and bleeding placenta previa and a clotting disorder at 20 weeks was referred for termination of pregnancy. After checking her coagulation parameters and making blood available for transfusion, we dilated the cervix overnight with Laminaria and planned uterine evacuation when adequate dilation was achieved or bleeding became too heavy to replace. Within 12 hours cervical dilation was 3 cm and heavy bleeding had begun. We removed the placenta quickly and used the ``intact D&E'' approach to complete the abortion and accomplish quick control of blood loss. The patient required a transfusion of two units of whole blood and was discharged the next day in good health.

A 38 year old with three previous caesarean deliveries and evidence of placenta accreta was referred for pregnancy termination at 22 weeks because her risk of massive hemorrhage and hysterectomy at the time of delivery was correctly estimated at about 75 percent. After SFGH sonographic studies confirmed placenta previa and likely accreta we undertook cervical dilation with laminaria and made blood available in case transfusion was required. To reduce the 75 percent probability of emergency hysterectomy in the situation of disseminated intravascular coagulation (DIC is quite likely with accreta) we decided to empty the uterus as quickly as possible with the intact D&E procedure and treat hemorrhage, if it occurred, with uterine artery embolization before our patient lost too much blood and hysterectomy was our only option. This approach succeeded and she was discharged in good health two days later.

These two patients provide examples from my memory of situations in which the ``intact D&E'' technique was critical to providing optimal care. I am certain that a review of our hospital records would identify cases of sever pre-eclampsia, for example, in which ``intact D&E'' was the safest technique of pregnancy termination, I hope the law will not deny our patients the best treatment we can provide them under life-threatening circumstances. Sincerely, Philip D. Darney.

This letter is from the chief of obstetrics, gynecology and reproductive sciences at one of the best hospitals in the country. It answers Senator Santorum's question. It provides two examples of where D&X, or what some also call intact D&E, may well have been necessary to protect the health of the woman.

Heart disease, cancer, and grave fetal abnormalities are among the many conditions that can make pregnancy especially dangerous to a woman's physical health. Under S. 3, these patients would be forced to continue a dangerous pregnancy. That is why I am offering my health exception amendment today.

Indeed, there are many tragic situations that face women today, situations that most could never imagine. There is one thing that has always characterized these debates. That is that everyone looks at them from their own vantage point without taking into consideration the situations of others. If you have not encountered a difficult situation, such as a possibly dangerous pregnancy, it is hard to know what you would do. But women and their families face these situations daily.

That is as good a reason as any why the Senate should not intrude into this area, and why the reproductive choices of women should be left to the women, their clergy, their morality, their families, their doctors, and not to the Senate.

Having said that, the amendment I am offering strikes a balance between protecting a woman's health and ensuring the D&X procedure is not abused. This amendment would ban all post-viability abortions unless a doctor determines that these abortions are necessary to protect the life and health of the woman. To ensure compliance with this ban, a doctor who performs a postviability abortion on a woman whose health or life is not at risk could be fined up to $100,000.

What is wrong with S. 3? I will take a moment to explain why I believe Senator Santorum's bill is a bad bill.

To begin with, it is unconstitutional because it lacks a health exception. I heard Senator Santorum say a health exception is not necessary. It is necessary. A review of the Supreme Court's abortion decisions and the record makes clear that any ban on D&X--or what supporters of the Santorum bill incorrectly call partial-birth abortion--must include a health exception. My amendment includes such an exception.

In 1973, Roe v. Wade grounded the abortion right in large part on the States' compelling obligation to protect maternal health. In fact, the Court states that the States' interest in preserving the health of a pregnant woman grows more important as a woman's pregnancy progresses. Thus, under Roe, the need for a health exception becomes even stronger with second- or third-term abortion procedures.

In 1992, as my colleagues have stated this many times on the floor, the Supreme Court explicitly reaffirmed Roe in Planned Parenthood v. Casey. Then in the year 2000, in Stenberg v. Carhart, the Supreme Court ruled that any ban must have a health exception. I have outlined two specific examples of why such a health exception is necessary. Yet Senator Santorum's bill does not have such an exception.
At the same time, S. 3 attempts to ban a specific medical procedure which it calls partial-birth abortion. But the bill offers no medical definition of partial-birth abortion. Now the American College of Obstetricians and Gynecologists, whose more than 44,000 members represent approximately 95 percent of all board-certified OB/GYNs practicing in the United States, has developed a medical definition of what is a D&X procedure. The American College of OB/GYNs's definition of the procedure is very different from Senator Santorum's.

I have to ask, why? Why wouldn't the proponents of this bill put in a medically acceptable definition so that those physicians who were practicing medicine and may encounter this kind of case would know precisely what is prohibited? I believe I know the answer. The answer is that the bill is calculated to cover more than just one procedure. I think it is calculated to ban all abortions. I believe if the bill becomes law, it would be struck down as unconstitutional.

I ask unanimous consent to have printed in the RECORD the letter from the American College of OB/GYNs.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

ACOG Statement of Policy

STATEMENT ON INTACT DILATATION AND EXTRACTION
The debate regarding legislation to prohibit a method of abortion, such as the legislation banning ``partial birth abortion,'' and ``brain sucking abortions,'' has prompted questions regarding these procedures. It is difficult to respond to these questions because the descriptions are vague and do not delineate a specific procedure recognized in the medical literature. Moreover, the definitions could be interpreted to include elements of many recognized abortion and operative obstetric techniques.

The American College of Obstetricians and Gynecologists (ACOG) believes the intent of such legislative proposals is to prohibit a procedure referred to as ``Intact Dilatation and Extraction'' (Intact D & X). This procedure has been described as containing all of the following four elements:

1. deliberate dilatation of the cervix, usually over a sequence of days;

2. instrumental conversion of the fetus to a footling breech;

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

4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.

Because these elements are part of established obstetric techniques, it must be emphasized that unless all four elements are present in sequence, the procedure is not an intact D & X.

Abortion intends to terminate a pregnancy while preserving the life and health of the mother. When abortion is performed after 16 weeks, intact D & X is one method of terminating a pregnancy. The physician, in consultation with the patient, must choose the most appropriate method based upon the patient's individual circumstances.
According to the Centers for Disease Control and Prevention (CDC), only 5.3% of abortions performed in the United States in 1993, the most recent data available, were performed after the 16th week of pregnancy. A preliminary figure published by the CDC for 1994 is 5.6%. The CDC does not collect data on the specific method of abortion, so it is unknown how many of these were performed using intact D & X. Other data show that second trimester transvaginal instrumental abortion is a safe procedure.

Terminating a pregnancy is performed in some circumstances to save the life or preserve the health of the mother. Intact D & X is one of the methods available in some of these situations. A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. An intact D & X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.--Approved by the Executive Board, January 12, 1997.

Mrs. FEINSTEIN. According to the American College of OB/GYNs, any definition of D&X must include all four of the elements I mentioned performed in the proper sequence.

The proponents have refused to use this definition, although the definition has been available for years. Rather, the language in S. 3 is so vague that far from outlawing just one particular abortion procedure, the way this bill is written, it virtually outlaws any abortion procedure. This, I believe, is the true intent of this bill--a major strike, and perhaps a fatal strike, against a woman's right to choose.

Everyone agrees that S. 3 lacks a health exception. It purposefully lacks a health exception. In the Stenberg case, the Supreme Court ruled ``significant medical authority supports the proposition that in some circumstances this procedure would be the safest.'' In her opinion, Justice O'Connor stated:

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 only accepts those procedures necessary to save the life of the mother whose life is in endangered by a physical disorder, physical illness, or physical injury. This lack of a health exception necessarily renders the statute unconstitutional.
Let me repeat her words.

This lack of a health exception necessarily renders the statute unconstitutional.
Now, that is not my colleague, Senator Boxer, speaking. That is not the distinguished Senator from New Jersey speaking. That is not the distinguished Senator from Pennsylvania speaking. That is not the majority leader, a distinguished physician, speaking. That is the Supreme Court of the United States. That is the law of the land.
This language could not be more clear. However, supporters of the Santorum bill argue that they can ignore this language by throwing into their bill some questionable facts that a health exception is unnecessary. They argue that the so-called findings make irrelevant the Supreme Court's constitutional determination in Carhart that a health exception is necessary.

Now, it is not only Carhart. There are a series of other cases.

One is Richard Medical Center for Women v. Gilmore, in 1999, which was affirmed by the Fourth Circuit Court in 2000. I quote:

The record contains significant evidence that the D&X procedure is often far safer than other D&E procedures.

Another is Rhode Island Medical Society v. Whithouse, in 1999, affirmed by the First Circuit in 2001:

Defendants claim that a D&X could never be necessary to save a woman's health, but the evidence at trial failed to support that contention. Therefore, this court finds that the D&X could be used to preserve a woman's health and must be available to physicians and women who want to rely upon it.

If that is not enough, let me mention Hope Clinic v. Ryan, a 1998 decision.
Intact D&E reduces the risk of retained tissue and reduces the risk of uterine perforation and cervical laceration because the procedure requires less instrumentation in the uterus. An intact D&E may also result in less blood loss and less trauma for some patients and may take less operating time.

Another example is Women's Medical Professional Corp. v. Voinovich, 1995, affirmed in 1997:

After viewing all of the evidence and hearing all of the testimony, this court finds that use of the D&X procedure in the late second trimester appears to pose less of a risk to maternal health than does the D&E procedure. This court also finds that the D&X procedure appears to pose less of a risk to maternal health than the use of induction procedures.

These are all clear district court and appellate court decisions, plus a number of clear Supreme Court decisions, and yet S. 3 flies in the face of all of them. All it offers is 15 pages of weak factual findings.

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. Let me quote former Chief Justice Warren 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.

The supporters of this bill are effectively trying to overturn binding Supreme Court precedent and to rewrite the Constitution by enacting a bill that openly violates Stenberg v. Carhart and other Supreme Court opinions. This, in my view, clearly oversteps legislative authority.

The Santorum bill also presumes guilt on the part of doctors and forces them to prove that they did not violate the law. This is putting a burden on one group of people, the very people charged with protecting pregnant women from harm. The legislation provides that an accused physician could escape liability only by proving that he or she reasonably believed that the banned procedure--whatever that procedure turns out to be, because it is not defined in the legislation--was necessary to save the woman's life and no other procedure would have sufficed.

It also opens the door to the prosecution of doctors for performing almost any abortion method by forcing them to prove they did not violate a law that can be interpreted in many different ways. Indeed, this bill is a major step toward making all abortions illegal in the United States.

Why does the Federal Government need to be involved in this issue? Why is this legislation even necessary? Roe v. Wade clearly and unequivocally allows States to ban all postviability abortions unless necessary to protect the life and health of the woman. Forty-one States already have bans on the books. So the States have accepted the premise of Roe v. Wade. If they have been concerned about postviability abortions, as most are, they have taken action, as Roe so provides.

The fact is, abortions late in a pregnancy are rare and usually performed under very tragic circumstances. Some States have not seen the need to legislate in this area. Surely anyone who believes in States' rights must question the logic of imposing a new Federal regulation on States in a case such as this, where States have already legislated.
Finally, I say to my colleagues, the Santorum bill is a bad bill. It is clearly unconstitutional. I have cited district court cases. I have cited appellate court cases. I have cited Supreme Court cases. S. 3 fails to provide a straight health exception for the woman, which is necessary to stand the constitutional test. It is not the role of the Federal Government to make medical decisions. It should be up to the doctor and his or her medical judgment.

This bill is bad because it attempts to ban a medical procedure without properly identifying that procedure in medical terms; ergo, it muddies the water and it throws all procedures into risk. It could affect far more than the procedure it seeks to ban. And it presumes guilt on the part of the doctor, something that, in the case of physicians, may be unprecedented in American law.

In our criminal justice system, somebody has to prove you guilty. You are presumed innocent. This bill puts the burden on doctors, and it ignores the vital health interests of women who are often facing tragic complications in their pregnancies.

That is why I am offering this complete substitute to S. 3. This substitute amendment puts medical decisions back in the hands of doctors. If the 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. I believe it is that simple.

I strongly believe that Congress should be supporting legislation that protects a woman's health. For the sake of all Americans, 80 percent of whom believe they should have the right to choose to protect the woman's health, from all walks of life, present and future, I urge my colleagues to join me in supporting this amendment.

II. Senator Feinstein's Response to Senator Santorum

Senator Feinstein's response to Senator Santorum's comparison of her amendment to the Dredd Scott case.

Mrs. FEINSTEIN. I want to make a couple of comments. The first comment is that comparing my amendment with the Dred Scott decision is ridiculous. Having said that, the distinguished Senator from Pennsylvania is right about one thing. In a sense, this is a codification of Roe.
I have sat on the Judiciary Committee. I ask my colleagues the question: What do you think of Roe v. Wade?

Overwhelmingly, most would say it is well-settled law. The States have adapted to it, and Roe v. Wade allows States to restrict abortion severely, if the fetus is viable, that is, can be sustained outside of the uterus. And over 40 States have banned or severely restricted postviability abortions.
S. 3 is duplicitous because it says it does one thing but does another. It says that it bans partial-birth abortion, but it does not adequately define it, and so bans much more than this method. Moreover, the bill does not define D&X in a medical context.

Respectfully, Senator Santorum is not a physician, and, respectfully, he is not going to be carrying out a surgical procedure. But there are hundreds of thousands of physicians out there who are carrying out this medical procedure. And Senator Santorum wants to leave them with an unclear definition in this bill. And the precise, medically accurate definition I read into the RECORD, the definition of D&X as proposed by the American College of Obstetricians and Gynecologists, is not the definition in the bill.

What I have done is tried to write a simple, straightforward bill that essentially sustains Roe v. Wade. So those who believe in Roe v. Wade should vote for my amendment. It says that any abortion is illegal once the fetus is viable, once the doctor determines that the fetus can sustain itself outside of the womb, unless the life and the health of the woman are in jeopardy. That is Roe v. Wade. The amendment is also consistent with a whole host of federal court decisions which I read and in the Supreme Court's decision in Stenberg v. Carhart where Justice Breyer, Justice O'Connor, and three other justices very clearly said that a Nebraska statute very similar to S. 3 falls because there is no exception for the health of the woman.

The Senator has talked about the liberty clause. And Roe v. Wade, yes, did come from the liberty clause of the due process clause of the 14th amendment and other parts of the Constitution. Roe helped establish a basic right of privacy for women.

I get so annoyed when men constantly strive to take away hard-won rights from women. Respectfully, I don't want Senator Santorum taking away my reproductive rights. I respect his views. I respect his rights. I respect his moral code, his religion, his conversations with his physician. Why can't those who happen to be pro-choice receive the same respect, particularly when a fetus is not viable, when a fetus cannot sustain life outside the womb? That is what this is all about.
Make no mistake, if you believe in choice, you will support my amendment. If you do not, you will support S. 3. That is the clear division of the house on this. If there were a clear medically accurate definition in S. 3, I would not be saying what I am saying. I would say: Members, you are voting on a particular medical procedure; you are prohibiting a particular medical procedure. But if you are voting for S. 3, you are voting to prohibit much more than just the medical procedure that has been put on this floor. You are also prohibiting D&E abortions as well. That has been the finding not of me but of obstetricians and gynecologists, some of them from the finest medical schools in our country, and numerous federal courts, including the Supreme Court.

S. 3's infringement on women's right to choose reminds me of another woman's right. It was not until 1920 that we got the vote. And when this Nation was founded and we go back to our days of--for some--glory, women could not get a higher education, women could not own property, women could not inherit. Every single right we have won has been fought for. And the right to choose has been fought for as well.

There are probably few people in this body who have seen a young woman ready to commit suicide from an unwanted pregnancy. I have. I went to college when abortion was illegal in the United States. I saw what happened. I saw the back-alley abortionist set up and do business. And then later I set sentences for women who had been convicted of felonies for having illegal abortions. I did that for 6 years. And I saw the tragedy they caused. We cannot go back to those days.
This is a step--let there be no doubt about it--back to those days. We have before us an imprecise piece of legislation, not just banning D&X but covering many more abortion methods than the S.3's supporters have said they aim to cover. A vote for my amendment will be a vote with the 80 percent of the population who believe in a women's right to choose to protect their health because my amendment is, Senator Santorum is correct, in essence a codification of Roe v. Wade.
I am hopeful that those who voted for the Harkin Roe v. Wade amendment will also vote yes on this amendment.

I reserve the remainder of my time, and I yield the floor.

III. Senator Feinstein's response to Senator Santorum's statement that her amendment is a restatement of Roe v. Wade.

Mrs. FEINSTEIN. I would like to respond in this way, if I may. The distinguished Senator said that if you vote for my amendment, you don't specifically ban D&X. That is true. You ban all postviability abortions, including all use of D&X postviability.

Let me also reiterate that S. 3 does not specifically ban D&X either. In fact, D&X procedure isn't defined in Senator Santorum's bill. The most knowledgeable people in the country have looked at S. 3, the nation's leading obstetricians and gynecologists, and what they tell me is that S. 3 will affect much more than D&X because S. 3's definition is incomplete and flawed. It is not me saying this, it is the American College of Obstetricians and Gynecologists. I have entered their letter into the RECORD.

The Senator could have used that definition in the bill, and then we would know what we were voting on. But he did not. I believe that, from the beginning, it has been intentional not to include a specific medically accurate definition in the bill. The bill is a Trojan horse. It could impact D&E abortions, the most common abortion method used, but the Senator refuses to admit it. The bill violates Roe and other Supreme Court opinions because it doesn't protect the health of the woman.
So what Senator Stabenow, Senator Edwards, and I have done in this amendment is say that any abortion after the point of a fetus' viability, as determined by the physician, is illegal--except to protect the health or life of the woman.

My amendment follows the Constitution. It is constitutional.
We just had 52 votes supporting Roe v. Wade. If those 52 votes are real, then the same senators will vote for my amendment because both Senator Santorum and I agree that this codifies Roe v. Wade.

I have listened to the debate over D&X as a member of the Judiciary Committee now in three Congresses. In every Congress I have asked: Why don't you put in the medical definition? And in every Congress the other side refuses to put in the medical definition. It makes you suspicious. Why wouldn't their bill use the generally accepted medical definition, unless it truly is a Trojan horse? Unless they are truly trying to mask what they are trying to do, which is to strike at the heart of a woman's right to choose.

I think I will now close off this debate. I urge those who voted on the Harkin amendment to please sustain that vote, to vote consistently, and to vote for the Feinstein-Stabenow-Edwards amendment.

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