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108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     108-58

======================================================================



 
                 PARTIAL-BIRTH ABORTION BAN ACT OF 2003

                                _______
                                

 April 3, 2003.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 760]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 760) to prohibit the procedure commonly known as 
partial-birth abortion, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................    27
Committee Consideration..........................................    27
Vote of the Committee............................................    27
Committee Oversight Findings.....................................    32
Performance Goals and Objectives.................................    32
New Budget Authority and Tax Expenditures........................    32
Congressional Budget Office Cost Estimate........................    33
Constitutional Authority Statement...............................    34
Section-by-Section Analysis and Discussion.......................    34
Changes in Existing Law Made by the Bill, as Reported............    41
Markup Transcript................................................    42
Dissenting Views.................................................   147

                          Purpose and Summary

    H.R. 760, the ``Partial-Birth Abortion Ban Act of 2003,'' 
bans the partial-birth abortion procedure in which an intact 
living fetus is partially delivered until some portion of the 
fetus is outside the body of the mother before the fetus is 
killed and the delivery completed. An abortionist who violates 
the ban would be subject to fines or a maximum of 2 years 
imprisonment, or both. The bill also establishes a civil cause 
of action for damages against an abortionist who violates the 
ban. The bill, which does not include an exception for the 
health of the mother, includes Congress' factual findings that, 
based upon extensive medical evidence compiled during 
congressional hearings, a partial-birth abortion is never 
necessary to preserve the health of a woman.
    H.R. 760, which is identical to H.R. 4965 which passed the 
House during the 107th Congress by a 274-151 vote, was 
introduced on February 13, 2003, by Constitution Subcommittee 
Chairman Rep. Steve Chabot. H.R. 760 was referred to the 
Judiciary Committee on that same date. H.R. 760 is identical to 
S. 3, as it was introduced by Sen. Rick Santorum on February 
14, 2003. On March 13, 2003, the Senate passed S. 3, with 
amendment, by a vote of 64-33.\1\
---------------------------------------------------------------------------
    \1\ By a 52 to 46 vote, the Senate approved an amendment to S. 3 
expressing the sense of the Senate that Roe v. Wade ``was appropriate 
and secures an important constitutional right'' and that the decision 
``should not be overturned.''
---------------------------------------------------------------------------

                Background and Need for the Legislation

The Procedure
    In late 1992, Dr. Martin Haskell, an abortion provider who 
operates three abortion clinics, sparked a national debate over 
the partial-birth abortion procedure when he presented a paper 
entitled Dilation and Extraction for Late Second Trimester 
Abortion at the National Abortion Federation's 2-day Fall Risk 
Management Seminar in Dallas, Texas. In that paper, the details 
of which shocked the consciences of Americans all across the 
country, Dr. Haskell described a ``quick, surgical outpatient'' 
abortion procedure that he ``routinely performs . . . on all 
patients 20 through 24 weeks.'' \2\ The details of the crucial 
part of the procedure were described as follows:
---------------------------------------------------------------------------
    \2\ See Martin Haskell, M.D., Dilation and Extraction for Late 
Second Trimester Abortions, Presented at the National Abortion 
Federation Risk Management Seminar (September 13, 1992), in Second 
Trimester Abortion: From Every Angle, 1992, at 6-7.

        The surgeon introduces a large grasping forceps . . . 
        through the vaginal and cervical canals into the corpus 
        of the uterus. . . . When the instrument appears on the 
        sonogram screen, the surgeon is able to open and close 
        its jaws to firmly and reliably grasp a lower extremity 
        [leg]. The surgeon then applies firm traction to the 
        instrument . . . and pulls the extremity into the 
---------------------------------------------------------------------------
        vagina. . . .

        With a lower extremity in the vagina, the surgeon uses 
        his fingers to deliver the opposite lower extremity, 
        then the torso, the shoulders and the upper extremities 
        [arms].

        The skull lodges at the internal cervical os.

        At this point, the right-handed surgeon slides the 
        fingers of the left had [sic] along the back of the 
        fetus and `hooks' the shoulders of the fetus with the 
        index and ring fingers (palm down).

        While maintaining this tension, lifting the cervix and 
        applying traction to the shoulders with the fingers of 
        the left hand, the surgeon takes a pair of blunt curved 
        Metzenbaum scissors in the right hand. He carefully 
        advances the tip, curved down, along the spine and 
        under his middle finger until he feels it contact the 
        base of the skull under the tip of his middle finger.

        [T]he surgeon then forces the scissors into the base of 
        the skull or into the foramen magnum. Having safely 
        entered the skull, he spreads the scissors to enlarge 
        the opening.

        The surgeon removes the scissors and introduces a 
        suction catheter into this hole and evacuates the skull 
        contents. With the catheter still in place, he applies 
        traction to the fetus, removing it completely from the 
        patient.\3\
---------------------------------------------------------------------------
    \3\ Id. at 27, 30-31.

    This method of abortion is particularly brutal and inhuman. 
Brenda Pratt Shafer, a registered nurse who observed Dr. 
Haskell use the procedure to abort three babies in 1993, 
testified before the Senate Judiciary Committee in 1995 and 
described a partial-birth abortion she witnessed on a child of 
---------------------------------------------------------------------------
26\1/2\ weeks as follows:

          Dr. Haskell brought the ultrasound in and hooked it 
        up so that he could see the baby. On the ultrasound 
        screen, I could see the heart beat. As Dr. Haskell 
        watched the baby on the ultrasound screen, the baby's 
        heartbeat was clearly visible on the ultrasound screen.
          Dr. Haskell went in with forceps and grabbed the 
        baby's legs and pulled them down into the birth canal. 
        Then he delivered the baby's body and the arms--
        everything but the head. The doctor kept the head right 
        inside the uterus. . . .

          The baby's little fingers were clasping and 
        unclasping, and his little feet were kicking. Then the 
        doctor stuck the scissors in the back of his head, and 
        the baby's arms jerked out, like a startle reaction, 
        like a flinch, like a baby does when he thinks he is 
        going to fall.

          The doctor opened up the scissors, stuck a high-
        powered suction tube into the opening, and sucked the 
        baby's brains out. Now the baby went completely limp. . 
        . .

          He cut the umbilical cord and delivered the placenta. 
        He threw the baby in a pan, along with the placenta and 
        the instruments he had just used. I saw the baby move 
        in the pan. I asked another nurse, and she said it was 
        just reflexes. . . . That baby boy had the most perfect 
        angelic face I think I have ever seen in my life.\4\
---------------------------------------------------------------------------
    \4\ The Partial-Birth Abortion Ban Act of 1995: Hearing on H.R. 
1833 Before the Senate Comm. on the Judiciary, 104th Cong. 18 (Nov. 17, 
1995) (statement of Brenda Pratt Shafer).

Clearly, the only difference between the partial-birth abortion 
procedure and infanticide is a mere three inches.
    The partial-birth abortion procedure is performed from 
around 20 weeks to full term.\5\ It is well documented that a 
baby is highly sensitive to pain stimuli during this period and 
even earlier.\6\ In fact, in a study conducted on fetuses 
between 20 to 34 weeks of gestation at the Institute of 
Obstetrics and Gynecology, Royal Postgraduate Medical School, 
Queen Charlotte's and Chelsea Hospital in London researchers 
concluded:
---------------------------------------------------------------------------
    \5\ There are several abortion techniques employed between 20 weeks 
and full term. The techniques fall under the general categories of 
partial-birth abortion, dilation and evacuation, and amnioinfusion. In 
the dilation and evacuation procedures the baby is dismembered and 
removed from the uterus in pieces. See, D.A. Grimes and W. Cates, Jr., 
Dilation and Evacuation, Second Trimester Abortion--Perspectives After 
a Decade of Experience (G.S. Berger et al. eds., 1981). Amnioinfusion 
requires the injection of saline or other solutions into the amniotic 
cavity. The solution kills the baby, and labor is induced. See, Warren 
M. Hern, M.D., M.P.H., Abortion Practice (1984).
    \6\ See, e.g., K.J.S. Anand and P.R. Hickey, Pain and Its Effects 
in the Human Neonate and Fetus, 317 The New England Journal of 
Medicine, 1321; V. Collins et al., Fetal Pain and Abortion: The Medical 
Evidence, Studies in Law and Medicine (1984); S. Reinis and J.M. 
Goldman, The Development of the Brain (1980).

        Just as physicians now provide neonates with adequate 
        analgesia, our findings suggest that those dealing with 
        the fetus should consider making similar modifications 
        to their practice. This applies not just to diagnostic 
        and therapeutic procedures on the fetus, but possibly 
        also to termination of pregnancy, especially by 
        surgical techniques involving dismemberment.\7\
---------------------------------------------------------------------------
    \7\ Xenophon Giannakoulopoulos et al., Fetal Plasma Cortisol and 
-Endorphin Response to Intrauterine Needling, The Lancet, July 
9, 1994, at 77, 80.

    In his testimony before the Constitution Subcommittee on 
June 15, 1995, Professor Robert White, Director of the Division 
of Neurosurgery and Brain Research Laboratory at Case Western 
Reserve School of Medicine, stated that ``[t]he fetus within 
this time frame of gestation, 20 weeks and beyond, is fully 
capable of experiencing pain.'' \8\ After specifically 
analyzing the partial-birth abortion procedure, Dr. White 
concluded that ``[w]ithout question, all of this is a 
dreadfully painful experience for any infant subjected to such 
a surgical procedure.'' \9\
---------------------------------------------------------------------------
    \8\ Hearing on Partial-Birth Abortion Before the Subcomm. on the 
Constitution of the House Comm. on the Judiciary, 104th Cong., 1st 
Sess., (1995) (testimony of Robert J. White, M.D., Ph.D.).
    \9\ Id.
---------------------------------------------------------------------------
    Thus a moral, medical, and ethical consensus exists that 
the practice of performing a partial-birth abortion is a 
gruesome and inhumane procedure that is never medically 
necessary and, thus, should be prohibited.
Public Reaction
    The partial-birth abortion procedure was brought to the 
attention of the nation when Minnesota Citizens Concerned for 
Life ran an ad in the Minneapolis Star-Tribune on May 12, 1993, 
containing drawings illustrating Dr. Haskell's abortion 
procedure with descriptive captions beneath.\10\ The immediate 
reaction of Dr. Haskell's local community was one of outrage. 
According to local reports over 100 local demonstrators, 
including reportedly twenty-one doctors, protested outside of 
the Cincinnati abortion clinic at which Dr. Haskell performs 
abortions.\11\
---------------------------------------------------------------------------
    \10\ The adds were run in an effort to defeat the Freedom of Choice 
Act, S. 25, which was being debated by the United States Senate at the 
time. See Shock-tactic Ads Target Late-Term Abortion Procedure: Foes 
Hope Campaign Will Sink Abortion Rights Legislation, American Medical 
News, July 5, 1993.
    \11\ See Abortion Protesters Object to Cincinnati Doctor, The 
Cincinnati Post, Oct. 27, 1993, available at 1993 WL 4101327.
---------------------------------------------------------------------------
    By 1996, polls revealed that Americans, regardless of their 
self-identified political affiliation or position on abortion, 
found the procedure to be morally and ethically objectionable 
and thus favored criminal bans of the procedure. A 1996 
Tarrance Group poll sponsored by the National Conference of 
Catholic Bishops found that 55 percent of Democrats and 65 
percent of those identifying themselves as pro-choice supported 
the ban.\12\ Later that year, a Gallup poll revealed that 71 
percent of American voters support the ban on ``a specific 
abortion procedure conducted in the last 6 months of pregnancy 
known as a `partial-birth abortion,' except in cases necessary 
to save the life of the mother.'' \13\ A 1997 survey conducted 
by the Pew Research Center for the People & the Press found 
that women supported the ban by 56 percent and Republicans, 
Democrats, and Independents gave their approval by 55, 54, and 
56 percent, respectively.\14\ Most recently, an ABC News/
Washington Post survey conducted in January found that 69% of 
Americans believe that ``late-term procedures known as dilation 
and extraction, or partial-birth abortions'' should be 
illegal.\15\ Similarly, a CNN/Gallup/USA Today survey conduct 
in January found that 70% of those surveyed favor a law that 
``would make it illegal to perform a specific abortion 
procedure conducted in the last 6 months of pregnancy known as 
a `partial-birth abortion,' except in cases necessary to save 
the life of the mother.'' \16\
---------------------------------------------------------------------------
    \12\ John Leo, Anti-Abortion Viewpoints Absent From Most Media, The 
Seattle Times, June 4, 1996.
    \13\ Barbara Vobejda and David Brown, Harsh Details Shift Tenor of 
Abortion Fight; Both Sides Bend Facts on Late-Term Procedure, The 
Washington Post, Sept. 17, 1996.
    \14\ See Poll: Americans Against Partial Birth Abortion By Slim 
Majority, Congress Daily, May 23, 1997, available at 1997 WL 7761974. 
Most recently, these numbers have remained at about 61 percent. A May 
1999 CNN/USA Today/Gallup poll found that 61 percent favor a ban. See 
Poll Update Poll Spotlight: Parents of Teens Should Be Accountable The 
Hotline, Vol. 10, No. 9, May 5, 1999, available at Westlaw, 5/5/99 APN-
HO 44. An April 2000 Fox News/Opinion Dynamics poll also found that 61 
percent favored a ban. Bush to Seek Ban on Late-Term Abortions: White 
House By Charles Hoskinson, Agence France-Presse, Jan. 28, 2001, 
available at 2001 WL 2330777.
    \15\ ABC News/Washington Post: Abortion Results That Both Sides Can 
Use, The Hotline: National Journal's Daily Briefing on Politics, at 
http://nationaljournal.com/pubs/hotline/h030122.htm (last visited Jan. 
22, 2003).
    \16\ Poll Update--CNN/USA Today/Gallup: Just 18 Think Abortion 
Should Be Illegal in All Circumstances, The Hotline: National Journal's 
Daily Briefing on Politics, at CNN/Gallup/USA Today, (last visited Feb. 25, 2003).
---------------------------------------------------------------------------
    In 1995, Dr. McMahon reported to the Constitution 
Subcommittee that of over 2,000 partial-birth abortions, only 9 
percent involved ``maternal [health] indications,'' of which 
the most common was ``depression.'' \87\ Dr. McMahon also sent 
the Subcommittee a graph which shows the percentage of ``flawed 
fetuses'' that he aborted using the partial-birth abortion 
method. The graph shows that even at 26 weeks of gestation half 
the babies that Dr. McMahon aborted were perfectly healthy and 
many of the babies he described as ``flawed'' had conditions 
that were compatible with long life, either with or without a 
disability. For example, Dr. McMahon listed nine partial-birth 
abortions performed because the baby had a cleft lip.\88\
---------------------------------------------------------------------------
    \87\ Letter from James T. McMahon, M.D., supra note 80.
    \88\ See id.
---------------------------------------------------------------------------
    The fact of the matter is that the mainstream medical 
community has rejected the partial-birth abortion procedure 
because of concerns about its safety.\89\ Leading proponents of 
partial-birth abortion acknowledge that it poses additional 
health risks because, among other things, the procedure 
requires a high degree of surgical skill to pierce the infant's 
skull with a sharp instrument in a blind procedure. Dr. Warren 
Hern has testified that he had ``very serious reservations 
about this procedure and that ``he could not imagine a 
circumstance in which this procedure would be safest.'' \90\ 
Although he was opposed to legislation banning partial-birth 
abortions ``because he thinks Congress has no business dabbling 
in the practice of medicine and because he thinks this 
signifies just the beginning of a series of legislative 
attempts to chip away at abortion rights,'' he also states, 
``You really can't defend it. I'm not going to tell somebody 
else that they should not do this procedure. But I'm not going 
to do it.'' \91\ He has also stated, ``I would dispute any 
statement that this is the safest procedure to use.'' \92\ Dr. 
Pamela Smith has testified that ``the only interest served by 
the partial-birth abortion procedure is the `convenience' of 
the abortionist.'' \93\ The procedure also poses the following 
additional health risks to the woman: 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 \94\; 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 Williams Obstetrics, a leading obstetrics 
textbook, ``there are very few, if any, indications for . . . 
other than for delivery of a second twin'' \95\; and a risk of 
iatrogenic 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.\96\ This also creates a high risk of infection 
should she suffer a laceration due to the non-sterile vaginal 
environment.\97\
---------------------------------------------------------------------------
    \89\ ``In the absence of controlled studies, the relative 
advantages and disadvantages of the procedure in specific circumstances 
remain unknown.'' Janet E. Gans Epner et al., Late-Term Abortion, 280 
J. Amer. Med. Ass'n 724, 726 (Aug. 26, 1998).
    \90\ The Partial-Birth Abortion Ban Act of 1995: Hearing on H.R. 
1833 Before the Senate Comm. on the Judiciary, 104th Cong. (Nov. 17, 
1995) (statement of Warren Hern, M.D.). Dr. Hern is an abortionist who 
specializes in late-term procedures and is the author of Abortion 
Practice, the nation's most widely used textbook on abortion standards 
and procedures. See Diane M. Gainelli, Outlawing Abortion Method: Veto-
Proof Majority in House Votes to Prohibit Later-Term Procedure, 38 
Amer. Med. News 1 (Nov. 20, 1995).
    \91\ Diane M. Gainelli, Outlawing Abortion Method: Veto-Proof 
Majority in House Votes to Prohibit Later-Term Procedure, 38 Amer. Med. 
News 1 (Nov. 20, 1995).
    \92\ Id.
    \93\ See The Partial-Birth Abortion Ban Act of 1995: Hearing on 
H.R. 1833 Before the Senate Comm. on the Judiciary, 104th Cong. (Nov. 
17, 1995) (statement Dr. Pamela Smith, Dir. of Medical Education in the 
Department of Obstetrics and Gynecology at Mt. Sinai Hospital in 
Chicago).
    \94\ ``[S]ome physicians have suggested that the procedure may 
increase complications, such as cervical incompetence.'' Janet E. Gans 
Epner et al., Late-Term Abortion, 280 J. Amer. Med. Ass'n 724, 726 
(Aug. 26, 1998). See also Brief of Amici Curiae Association of American 
Physicians and Surgeons et al. at 21, Stenberg v. Carhart, 530 U.S. 914 
(2000) (99-830) available at 2000 WL 228448. The threat of cervical 
incompetence is related to the amount of cervical dilation. A. Golan, 
et al., Incompetence of the Uterine Cervix, 44 Obstet. Gynecol. Surv. 
96-107 (1989). Dr. Stubblefield testified that at the same week of 
gestation, ``the D & X requires greater dilation'' than the D & E 
procedure which supports the conclusion that a D & X procedure brings 
with it the risk of cervical incompetence and an increased risk that a 
woman's membranes may rupture. See Brief of Amicus Curiae State of 
Wisconsin at 21, Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830) 
available at 2000 WL 228615.
    \95\ Janet E. Gans Epner et al., Late-Term Abortion, 280 J. Amer. 
Med. Ass'n 724, 744-45 (Aug. 26, 1998). See also Diane M. Gainelli, 
Outlawing Abortion Method: Veto-Proof Majority in House Votes to 
Prohibit Later-Term Procedure, 38 Amer. Med. News 1 (Nov. 20, 1995) 
(quoting Dr. Warren Hern describing the act of turning the fetus to a 
breech position as being ``potentially dangerous'' because ``[y]ou have 
to be concerned about causing amniotic fluid embolism or placental 
abruption if you do that.'').
    \96\ Janet E. Gans Epner et al., Late-Term Abortion, 280 J. Amer. 
Med. Ass'n724, 744-45 (Aug. 26, 1998).
    \97\ Brief of Amici Curiae Association of American Physicians and 
Surgeons et al. 25-6, Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830) 
available at 2000 WL 228448.
---------------------------------------------------------------------------
    Proponents of partial-birth abortion argue that, 
notwithstanding all of the evidence indicating that the 
procedure has not been proven safe, effective, or necessary, 
any ban on the procedure should include a health exception 
because it may, in some unidentifiable circumstance, be the 
safer procedure for a given women. The problem with this 
argument, however, is the abortionists have indicated that they 
will certify that any pregnancy poses risks to a woman's 
health. Dr. Warren Hern of Colorado, the author of the standard 
textbook on abortion procedures who also performs many third-
trimester abortions has stated: ``I will certify that any 
pregnancy is a threat to a woman's life and could cause 
grievous injury to her physical health.'' \98\ Thus, including 
a health exception in the ban would render the ban meaningless, 
as it would not prohibit a single partial-birth abortion.
---------------------------------------------------------------------------
    \98\ Ruth Padawer, Clinton May Back Abortion Measure, The Record, 
May 14, 1997.
---------------------------------------------------------------------------
    Opponents of the partial-birth abortion ban have also 
criticized the legislation's use of the term ``partial-birth 
abortion,'' citing the absence of the term partial-birth 
abortion in medical literature. However, the term partial-birth 
abortion is a legal term defined clearly in H.R. 760 as any 
abortion in which 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 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.'' This term is sufficiently 
precise to address the Stenberg Court's concern that the 
definition of the prohibited procedure clearly track the 
medical differences between a partial-birth abortion and other 
abortion procedures in which the act leading to death occurs in 
the uterus.
    The use of this term in the legislation was necessitated by 
the fact that the partial-birth abortion procedure was not 
recognized in the medical community and has been called by 
various names by the abortionists who invented and practice it, 
including ``dilation and extraction,'' ``intact dilation and 
evacuation,'' and ``intrauterine cranial decompression.'' Just 
as the term partial-birth abortion was not found in medical 
literature, these terms were not found in medical literature 
because these horrific procedures were considered to be ``bad 
medicine'' by the medical community.
    In fact, Dr. Pamela Smith, an obstetrician at Mt. Sinai 
Hospital in Chicago, testified before the Subcommittee on the 
Constitution that when she described the procedure to other 
physicians, ``many of them were horrified to learn that such a 
procedure was even legal.'' \99\ Dr. Smith also stated:
---------------------------------------------------------------------------
    \99\ Hearing on Partial-Birth Abortion Before the Subcomm. On the 
Constitution of the House Comm. on the Judiciary, 104th Cong., 1st 
Sess., (1995) (testimony of Pamela Smith, M.D., FACOG).

        [T]here is no uniformly accepted medical terminology 
        for the method that is the subject of this legislation. 
        Dr. McMahon does not even use the same term as Dr. 
        Haskell, while the National Abortion Federation 
        implausibly argues that there is nothing to distinguish 
        this procedure from the D & E abortions. The term you 
        have chosen, `partial-birth abortion,' is 
        straightforward.\100\
---------------------------------------------------------------------------
    \100\ Id.

    There are also alternative abortion procedures that are 
proven safer (though not necessarily safe) than partial-birth 
abortion. Nationwide, the testimony in partial-birth abortion 
cases establishes that the D & E abortion procedure is a safer 
alternative procedure.\101\ Dr. Frank Boehm testified that 
banning the partial-birth abortion procedure would not enhance 
or increase the risk to women of amniotic fluid embolus.\102\ 
He also testified that where an unborn child has severe 
hydrocephaly, which causes the head to be too large to pass 
through the cervix, he would use an ultrasound-guided 
cepholocentis procedure to ``drain the ventricles of the 
amniotic fluid to allow the head to slip through the cervix.'' 
\103\ A ban will not force a woman seeking an abortion to 
undergo an ``alternative procedure which would create a higher 
risk of harm to her uterus, cervix, or internal organs'' 
because abortionists have ``been performing abortions for years 
on women safely with other techniques, and we don't have any 
data that would say that another technique such as partial-
birth abortion is any safer.'' \104\
---------------------------------------------------------------------------
    \101\ Evans v. Christensen, 977 F. Supp. 1283, 1294 (E.D. Mich. 
1997) (testimony by five doctors that ``the D & E procedure is a safe 
procedure''); Planned Parenthood of Southern Arizona Inc. v. Woods, 982 
F. Supp. 1369, 1376 (D. Ariz. 1997) (finding of fact by the district 
court that D & E is a safe, medically acceptable abortion method in the 
second trimester); Doyle, 9 F. Supp. At 1045 (D & E is a ``safe 
procedure''). See also id. att 1376 (finding of fact that induction is 
safe, medically acceptable abortion method in the second trimester); 
Planned Parenthood of Greater Iowa v. Miller, 1 F. Supp.2d 958 (S.D. 
Iowa 1998)(induction is a safe, routinely performed procedure after 15 
weeks).
    \102\ Brief of Petitioner at 37, Stenberg v. Carhart, 530 U.S. 914 
(2000) (99-830) available at 2000 WL 228615.
    \103\ Id. at 38.
    \104\ Dr. Frank Boem quoted in id. at 42.
---------------------------------------------------------------------------
    Those opposed to the passage of H.R. 760 continue to assert 
that the government should not be in the examination room 
regulating physicians in the performance of their job. Yet the 
law follows every physician through the performance of every 
aspect of their job in the form of tort law. Every aspect of 
the practice of medicine is regulated by traditional standards 
of negligence that have been adapted to serve the medical 
profession in the form of medical malpractice. Under these 
rules, a ``doctor must have and use the knowledge, skill and 
care ordinarily possessed and employed by members of the 
profession in good standing; and a doctor will be liable if 
harm results because he does not have them.'' \105\ Thus, the 
law measures every aspect of a physician's medical practice 
against what is considered, `` `good medical practice,' which 
is to say, what is customary and usual in the profession.'' Id. 
at 189.
---------------------------------------------------------------------------
    \105\ W. Page Keeton, Prosser and Keeton on The Law of Torts 187 
(5th ed. 1984).
---------------------------------------------------------------------------
    Even when there is disagreement within an area of 
speciality as to alternative methods of acceptable treatment a 
physician is still required to offer the level of medical care 
consistent with the tenets of the school the doctor professes 
to follow. See id. at 187. Even this, however, does not entitle 
a physician to provide medical care with no proven benefits. As 
Prosser and Keeton state, ``this does not mean, however, that 
any quack, charlatan or crackpot can set himself up as a 
`school,' and so apply his individual ideas without liability. 
A school must be a recognized one within definite principles, 
and it must be the line of thought of a respectable majority of 
the profession.'' Id. Thus, a physician's medical decision-
making has always been subject to legal oversight and the 
threat of legal liability for negligently rendered medical 
series is a regular aspect of the practice of medicine.
    Furthermore, there are some procedures so abhorrent to 
society that they have been severely restricted or banned. For 
example, in 1996, Congress approved a ban on female genital 
mutilation under which anyone who ``knowingly circumcises, 
excises, or infibulates the whole or any part of'' the genitals 
of a woman who has not attained the age of 18 years will be 
fined or imprisoned not more than 5 years, or both. In 1997, 
the American Medical Association noted the appropriateness of 
this ban stating, ``the profession has supported criminal 
restrictions on improper `medical' procedures, such as female 
genital mutilation.'' \106\
---------------------------------------------------------------------------
    \106\ AMA Board of Trustees Fact Sheet on H.R. 1122, Brief of Amici 
Curiae association of American Physicians and Surgeons et al. appendix, 
Stenberg v. Carhart, 530 U.S. 914 (2000) (99-830) available at 2000 WL 
228448.
---------------------------------------------------------------------------
    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. Based 
upon Roe v. Wade,\107\ and Planned Parenthood v. Casey,\108\ 
the government's interest in protecting the life of a child in 
the process of being born arises, in part, 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.\109\ 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.'' While under these two rulings 
a pregnancy may be terminated, partial-birth abortion should 
not implicate this right because the pregnancy ended once the 
birth process began and the right to terminate one's pregnancy 
by aborting one's unborn child does not include an independent 
right to assure the death of that child regardless of its 
location to its mother. Thus, the government has a heightened 
interest in protecting the life of the partially-born child.
---------------------------------------------------------------------------
    \107\ 410 U.S. 113 (1973).
    \108\ 505 U.S. 833 (1992).
    \109\ Roe v. Wade, 410 U.S. 113, 118 n.1 (1973).
---------------------------------------------------------------------------
    This, too, has not gone unnoticed by the American Medical 
Association which 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.'' Thus, the `` 
`partial birth' gives the fetus an autonomy which separates it 
from the right of the woman to choose treatments for her own 
body.'' \110\
---------------------------------------------------------------------------
    \110\ ``The procedure is ethically different from other destructive 
abortion techniques because the fetus, normally twenty weeks or longer 
in gestation, is killed outside of the womb. The `partial birth' gives 
the fetus an autonomy which separates it from the right of the woman to 
choose treatments for her own body.'' AMA Board of Trustees Fact Sheet 
on H.R. 1122, Brief of Amici Curiae Association of American Physicians 
and Surgeons et al. appendix, Stenberg v. Carhart, 530 U.S. 914 (2000) 
(99-830) available at 2000 WL 228448.
---------------------------------------------------------------------------
    Partial-birth abortion also confuses the medical, legal, 
and ethical duties of physicians to preserve and promote life. 
As a partial-birth abortion begins, a significant portion of 
the child's body, the lower extremities and torso except for 
the head, emerges from the womb, and the doctor is, by all 
appearances, acting as an obstetrician delivering a child. At 
this point, however, the physician performs an act quite 
contrary to the obstetrical role by stabbing the base of the 
skull of the living, almost-born child with a pair of scissors, 
spreading the scissors to enlarge the opening, inserting a 
suction catheter, and evacuating the contents of the almost-
born, now-deceased, child. Thus, 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. 
Thus, by aborting a child in a manner that purposefully seeks 
to kill a 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 near-breathing child.
    The gruesome and inhumane nature of the partial-birth 
abortion procedure and its disturbing similarity to the killing 
of a newborn promotes a complete disregard for infant human 
life that can only be countered by a prohibition of the 
procedure. According to Dr. Haskell, the vast majority of 
babies killed during a partial-birth abortion are alive until 
the end of the procedure.\111\ It is a medical fact, however, 
that unborn infants can feel pain when subjected to painful 
stimuli and that their perception of this pain is more intense 
than that of newborn infants and older children when subjected 
to the same stimuli.\112\ 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.
---------------------------------------------------------------------------
    \111\ Responding to an interviewer's questioning, ``Let's talk 
first about whether or not the fetus is dead beforehand . . .'' Dr. 
Haskell responded ``No it's not. No, it's really not. A percentage are 
for various numbers of reasons. Some just because of the stress--
intrauterine stress during, you know, the 2 days that the cervix is 
being dilated. Sometimes the membranes rupture and it takes a very 
small superficial infection to kill a fetus in utero when the membranes 
are broken. And so in my case, I would think probably about a third of 
those are definitely are (sic) dead before I actually start to remove 
the fetus. And probably the other two-thirds are not.'' Partial-Birth 
Abortion: The Truth, Joint Hearing on S. 6 and H.R. 929 Before the 
House Comm. on the Judiciary Subcomm. on the Constitution and the 
Senate Comm. on the Judiciary, 105th Cong. 61 (March 11, 1997).
    \112\ Effects of Anesthesia During a Partial-Birth Abortion: 
Hearing Before the House Comm. on the Judiciary Subcomm. on the 
Constitution, 104th Cong. (March 21, 1996) (statement of Jean A. 
Wright).
---------------------------------------------------------------------------
    Nor will a child upon whom a partial-birth abortion is 
being performed be significantly affected by medication 
administered to the mother during the performance of the 
procedure. As credible testimony received by the Subcommittee 
on the Constitution confirms, ``[c]urrent methods for providing 
maternal anesthesia during `partial-birth abortions' are 
unlikely to prevent the experience of pain and stress'' that 
the child will feel during the procedure.\113\ Thus, claims 
that a child is almost certain to be either dead or unconscious 
and near death prior to the commencement of the partial-birth 
are unsubstantiated.
---------------------------------------------------------------------------
    \113\ Id.
---------------------------------------------------------------------------
    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.
    For these reasons, Congress has made its own independent 
findings that: partial-birth abortion is never medically 
indicated to preserve the life or 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.
Constitutional Authority
    Congress derives its constitutional authority to enact H.R. 
760 from the Commerce Clause which provides Congress with the 
authority to ``regulate Commerce with Foreign Nations, and 
among the several States.'' \114\
---------------------------------------------------------------------------
    \114\ U.S. Const. Art. I, Sec. 8, cl. 3.
---------------------------------------------------------------------------
    The provision of abortion services, including partial-birth 
abortions, is clearly commerce. As former Attorney General 
Janet Reno testified during consideration of the Freedom of 
Access to Clinic Entrances Act \115\ in 1993,
---------------------------------------------------------------------------
    \115\ 18 U.S.C. Sec. 248.

        The provision of abortions services is commerce. The 
        entities that provide these services, including 
        clinics, physicians' offices, and hospitals, purchase 
        or lease facilities, purchase and sell equipment, 
        goods, and services, employ people, and generate 
        income. Not only do their activities have an effect on 
        interstate commerce, but they engage directly in 
        interstate commerce. It should be easy to document that 
        they purchase medicine, medical supplies, surgical 
        instruments, and other supplies produced in other 
        States. Moreover, it is well-established that many 
        serve significant number of patients from other states. 
        For example, in Bray v. Alexandria Women's Health 
        Clinic, 113 S.Ct. at 762, the Supreme Court accepted 
        the district court's finding that substantial numbers 
        of patients at abortion clinics in the Washington, 
        D.C., area traveled interstate to obtain the services 
        of the clinics. In Wichita, KS, the Federal district 
        court found that some 44 percent of the patents at one 
        clinic came from out of State. See New York State NOW 
        v. Terry, 886 F. 2d at 1360 (many women travel from 
        out-of-State to New York clinics).\116\
---------------------------------------------------------------------------
    \116\ Hearing on S. 636, the Freedom of Access to Clinic Entrances 
Act of 1993 Before the Senate Comm. on Labor and Human Resources, 103rd 
Cong. 16 (May 12, 1993)(Statement of Attorney General Janet Reno). All 
circuits to have addressed the question have concluded that the Freedom 
of Access to Clinic Entrances Act was a valid use of Congress' Commerce 
Clause authority. See Norton v. Ashcroft, 298 F.3d 547, 555 (6th Cir. 
2002).

Congress received similar testimony when Professor David Smolin 
appeared before the Judiciary Committee's Subcommittee on the 
---------------------------------------------------------------------------
Constitution,

        Abortion services would generally be classed within the 
        broader category of medical and health care services, 
        for purposes of commerce clause analysis. Health care 
        constitutes, as the Congress well knows, a large and 
        significant portion of the national economy, and it 
        would seem absurd to hold that an industry comprising 
        one-seventh of the national economy could not be 
        regulated under the commerce clause.\117\
---------------------------------------------------------------------------
    \117\ Partial-Birth Abortions: Hearing before the Comm. on the 
Judiciary Subcomm. on the Constitution, 105th Cong. (June 15, 1995) 
(Statement of David M. Smolin).

It is also clear that women travel between the states in order 
to obtain abortions. In 1999, according to the Centers for 
Disease Control and Prevention, 54.9 percent of abortions 
performed in the District of Columbia were on out-of-State 
residents, 34.8 percent of those performed in Delaware were on 
out-of-State residents, and 48.6 percent of those performed in 
Kansas were on out-of-State residents.\118\
---------------------------------------------------------------------------
    \118\ See Centers for Disease Control and Prevention, Morbidity and 
Mortality Weekly Report: Abortion Surveillance--United States, 1999, 14 
(2002). See also H.R. Rep. No. 103-306 at 6 (1993) (``women travel 
interstate to obtain reproductive health services'').
---------------------------------------------------------------------------
    A review of the performance of partial-birth abortions 
indicates that in the process of providing partial-birth 
abortions, abortionists engage in interstate commerce. First, 
the performance of a partial-birth abortion, as with the 
performance of any abortion, is an economic transaction in 
which a service is performed for a fee. Second, because so few 
abortionists perform partial-birth abortions, women seeking to 
obtain a partial-birth abortion are more likely to have to 
travel out-of-State to find an abortionist willing to perform 
the procedure. As Professor David Smolin testified in front of 
the Judiciary Committee's Subcommittee on the Constitution,

        The relatively few number of abortion providers who 
        perform partial-birth abortions appear particularly 
        likely to be involved in serving out-of-State patients, 
        given the relatively specialized nature of the services 
        they provide. Some providers of abortion services do 
        not perform abortions in the second half of pregnancy, 
        during the period for which partial-birth abortions 
        were designed; thus, those abortion providers who 
        provide late term abortions are even more likely to 
        receive referrals, and patients, from outside of their 
        immediate geographical area.\119\
---------------------------------------------------------------------------
    \119\ Partial-Birth Abortions: Hearing before the Comm. on the 
Judiciary Subcomm. on the Constitution, 105th Cong. (June 15, 1995) 
(Statement of David M. Smolin).

    Third, partial-birth abortions are usually performed in an 
outpatient clinic or facility which is likely to ``purchase 
medicine, medical supplies, surgical instruments, and other 
supplies produced in other States.'' \120\ Finally, 
abortionists who perform partial-birth abortions advertise 
their services across state lines and women travel across state 
lines in order to obtain partial-birth abortions. A review of 
the practices of the state of Kansas bears this out. Since 
1998, abortionists in Kansas have been required to report the 
performance of partial-birth abortions.\121\ In 1998, all 58 
partial-birth abortions performed in Kansas were performed on 
out-of-State residents.\122\ Similarly, in 1999, 175 of the 182 
partial-birth abortions performed were performed on out-of-
State residents.\123\ The practices of Dr. Haskell are 
instructive on this issue as well. Dr. Haskell himself 
advertises to out-of-State women as evidenced by his website 
and an Indianapolis, Indiana phone book. On his website Dr. 
Haskell states,
---------------------------------------------------------------------------
    \120\ Hearing on S. 636, the Freedom of Access to Clinic Entrances 
Act of 1993 Before the Senate Comm. on Labor and Human Resources, 103rd 
Cong. 16 (May 12, 1993)(Statement of Attorney General Janet Reno).
    \121\ Under Kansas law physicians electing to perform a partial-
birth abortion procedure are required to ``report such determination 
and the reasons for such determination in writing to the medical care 
facility in which the abortion is performed for inclusion in the report 
of the medical care facility to the secretary of health and environment 
. . .'' K.S.A. Sec. 65-6721 (c). A partial-birth abortion is defined as 
``an abortion procedure which includes the deliberate and intentional 
evacuation of all or a part of the intracranial contents of a viable 
fetus prior to removal of such otherwise intact fetus from the body of 
the pregnant woman.'' K.S.A. Sec. 65-6721 (b).
    \122\ Center for Health and Environmental Statistics, Kansas 
Department of Health and Environmental Statistics, Kansas, Abortions in 
Kansas 1998: Preliminary Report 10 (1999).
    \123\ Center for Health and Environmental Statistics, Kansas 
Department of Health and Environmental Statistics, Kansas, Abortions in 
Kansas 1999: Preliminary Report 10 (2000). No partial-birth abortions 
have been performed in Kansas since October 1999. See Center for Health 
and Environmental Statistics, Kansas Department of Health and 
Environmental Statistics, Kansas, Abortions in Kansas, 2001: 
Preliminary Report 10 (2002).

        Indiana limits abortion access beyond the first 
        trimester of pregnancy. Indiana law requires second 
        trimester procedures to be performed in a hospital or 
        licensed surgical center. This makes terminations 
        beyond the first trimester unnecessarily expensive. As 
        a result most Indiana women choosing to terminate after 
        the first trimester travel to either Dayton or 
        Cincinnati, Ohio where hospitalization is not 
        required.'' \124\
---------------------------------------------------------------------------
    \124\ www.womensmedcenter.com/laws/indiana.asp, last visited July 
19, 2002.

He continues, ``Our Ohio Centers in Cincinnati, Dayton and 
Akron provide second trimester services to many out of state 
women.'' \125\
---------------------------------------------------------------------------
    \125\ Id. Although Dr. Haskell does not state that he performs 
partial-birth abortions on his website it is a fact that he does 
perform the procedure since he has stated that he ``routinely performs 
[a partial-birth abortion] . . . on all patients 20 through 24 weeks.'' 
Martin Haskell, M.D., Dilation and Extraction for Late Second Trimester 
Abortions, Presented at the National Abortion Federation Risk 
Management Seminar (September 13, 1992), in Second Trimester Abortion: 
From Every Angle, 1992, at 6-7. Thus the advertisement of abortion 
services through the 24 week of pregnancy should be considered as an 
advertisement for partial-birth abortions.
---------------------------------------------------------------------------
    In 1995 the Court limited Congress' authority under the 
Commerce Clause when, in U.S. v. Lopez,\126\ it held that 
Congress exceeded its Commerce Clause authority by enacting the 
Gun-Free School Zones Act which prohibited the possession of a 
gun on or near the grounds of a school.\127\ However, Lopez 
turned on the fact that it proscribed noncommercial activity, 
the mere possession of a gun on or near school grounds. Indeed, 
Chief Justice Rehnquist, writing for the majority, highlighted 
this key point in the first paragraph of his opinion when he 
stated that, ``[t]he Act neither regulates a commercial 
activity nor contains a requirement that the possession be 
connected in any way to interstate commerce'' and thus 
concluded that the law ``exceed[ed] the authority of Congress 
`[t]o regulate Commerce . . . among the several States.' '' 
\128\
---------------------------------------------------------------------------
    \126\ 514 U.S. 549 (1995) (emphasis added).
    \127\ 18 U.S.C. Sec. 922(q)(1)(A) (1998 ed., Supp. V).
    \128\ Lopez, 514 U.S. at 551.
---------------------------------------------------------------------------
    Citing to the Court's opinion in Wickard v. Filburn,\129\ 
which upheld the application of the Agricultural Adjustment Act 
of 1938 to the production and consumption of homegrown wheat, 
Chief Justice Rehnquist stated, ``[e]ven Wickard, which is 
perhaps the most far reaching example of Commerce Clause 
authority over intrastate activity, involved economic activity 
in a way that the possession of a gun in a school zone does 
not.'' The Chief Justice went on to reason that the activity at 
issue in Wickard, the growing of wheat mostly for one's own 
consumption and use, could be regulated by Congress under the 
Commerce Clause because the regulation was ``an essential part 
of a larger regulation of economic activity, in which the 
regulatory scheme could be undercut unless the intrastate 
activity were regulated'' whereas the Gun-Free School Zones Act 
was ``a criminal statute that by its terms has nothing to do 
with `commerce' or any sort of economic enterprise, however 
broadly one might define those terms.'' \130\ It is thus argued 
by some that the regulation of partial-birth abortions is not 
``an essential part of a large regulation of economic activity, 
in which the regulatory scheme could be undercut unless the 
intrastate activity were regulated.'' This analysis, however, 
is flawed because the business of performing partial-birth 
abortions involves interstate commercial activity in a manner 
in which the mere possession of a gun on or near a school 
simply does not. Thus it's unnecessary to even consider whether 
the performance of partial-birth abortions ``arise out of or 
are connected with a commercial transaction, which viewed in 
the aggregate, substantially affects interstate commerce.'' 
\131\ In other words, the fact that abortion services and the 
performance of partial-birth abortions are commerce 
``sufficiently distinguishes the proposed ban from Lopez, which 
concerned an attempted regulation of noncommercial activity.'' 
\132\
---------------------------------------------------------------------------
    \129\ 317 U.S. 111 (1942).
    \130\ Lopez, 514 U.S. at 561.
    \131\ Lopez, 514 U.S. at 561. The testimony of Professor Smolin is, 
again, instructive on this point,

      The Supreme Court's recent decision in United States v. 
      Lopez, 115 S.Ct. 1624 (1005), does not alter the conclusion 
      that Congress possesses the authority to enact the proposed 
      ban on partial-birth abortions. Lopez concerned the 
      proscription of a noncommercial activity: the possession of 
      a firearm in a school zone. The United States argued 
      unsuccessfully that this noncommercial activity 
      substantially affected interstate commerce because of its 
      negative impact upon education. The Court rejected the 
      dissent's view that schools (including public schools) are 
---------------------------------------------------------------------------
      commercial. 115 S.Ct. at 1633.

Partial-Birth Abortions: Hearing before the Comm. on the Judiciary 
Subcomm. on the Constitution, 105th Cong. (June 15, 1995) (Statement of 
David M. Smolin).
---------------------------------------------------------------------------
    \132\ Partial-Birth Abortions: Hearing before the Comm. on the 
Judiciary Subcomm. on the Constitution, 105th Cong. (June 15, 1995) 
(Statement of David M. Smolin).
---------------------------------------------------------------------------
    Furthermore, H.R. 760 also contains a jurisdictional 
requirement, ``[a]ny physician who, in or affecting interstate 
or foreign commerce, knowingly performs a partial-birth 
abortion . . . ,'' which will ``ensure, through case-by-case 
inquiry, that'' the partial-birth abortion ``in question 
affects interstate commerce.'' \133\
---------------------------------------------------------------------------
    \133\ U.S. v. Lopez, 514 U.S. 549, 561 (1995).
---------------------------------------------------------------------------
    For these reasons, enactment of H.R. 760 is an appropriate 
and constitutional use of Congress' authority under the 
Commerce Clause.

                                Hearings

    The Committee's Subcommittee on the Constitution held 1 day 
of hearings on H.R. 760 on March 25, 2003. Testimony was 
received from Dr. Mark G. Neerhof, D.O., Mr. Simon Heller, Of 
Counsel to the Center for Reproductive Rights, and Professor 
Gerard V. Bradley of the University of Notre Dame Law School. 
Additional material was submitted by Constitution Subcommittee 
Chairman Rep. Steve Chabot and Rep. Jerrold Nadler.

                        Committee Consideration

    On March 25, 2003, the Subcommittee on the Constitution met 
in open session and ordered favorably reported the bill H.R. 
760 by a vote of 8 to 4, a quorum being present. On March 26, 
2003, the Committee met in open session and ordered favorably 
reported the bill H.R. 760 without amendment by a recorded vote 
of 19 to 11, a quorum being present.

                         Vote of the Committee

    1. An amendment was offered by Mr. Scott, Ms. Baldwin and 
Ms. Jackson Lee to add an exception for partial-birth abortions 
performed to preserve the health of the mother and to replace 
the H.R. 760's exception for the life of the mother. The 
amendment was defeated by a rollcall vote of 7 yeas to 15 nays.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              7              15
----------------------------------------------------------------------------------------------------------------

    2. An amendment was offered by Mr. Nadler that would strike 
the civil cause of action. The amendment was defeated by a 
rollcall vote of 11 yeas to 15 nays.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             11              15
----------------------------------------------------------------------------------------------------------------

    3. An amendment was offered by Ms. Baldwin to remove the 
criminal sanctions. The amendment was defeated by a rollcall 
vote of 8 yeas to 15 nays.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................
Mr. Conyers.....................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              8              15
----------------------------------------------------------------------------------------------------------------

    4. An amendment was offered by Ms. Baldwin that would 
strike the congressional findings of fact. The amendment was 
defeated by a rollcall vote of 10 yeas to 18 nays.

                                                   ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................
Mr. Conyers.....................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             10              18
----------------------------------------------------------------------------------------------------------------

    5. An amendment was offered by Ms. Jackson Lee that would 
change the name of H.R. 760 to the ``Safe Abortion Procedures 
Ban Act of 2003.'' The amendment was defeated by a rollcall 
vote of 8 yeas to 19 nays.

                                                   ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              8              19
----------------------------------------------------------------------------------------------------------------

    6. An amendment was offered by Ms. Baldwin to insert 
additional findings regarding the U.S. Supreme Court's holding 
in Stenberg v. Carhart, 914 U.S. 914 (2000). The amendment was 
rejected by a rollcall vote of 10 yeas to 16 nays.

                                                   ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................
Ms. Hart........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             10              16
----------------------------------------------------------------------------------------------------------------

    7. Final Passage. The motion to report favorably the bill 
H.R. 760 was agreed to by a rollcall vote of 19 to 11.

                                                   ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             19              11
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    H.R. 760 does not authorize funding. Therefore, clause 3(c) 
of rule XII of the Rules of the House of Representatives is 
inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 4965, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 28, 2003.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 760, the Partial-
Birth Abortion Ban Act of 2003.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mark 
Grabowicz (for Federal costs), who can be reached at 226-2860, 
and Paige Piper/Bach (for the impact on the private sector), 
who can be reached at 226-2940.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 760--Partial-Birth Abortion Ban Act of 2003.
    CBO estimates that implementing H.R. 760 would not result 
in any significant cost to the Federal Government. Enacting 
H.R. 760 could affect direct spending and receipts, but CBO 
estimates that any such effects would not be significant.
    H.R. 760 would ban most instances of a late-term abortion 
procedure known as ``partial-birth abortion.'' Violators of the 
bill's provisions would be subject to a criminal fine or 
imprisonment. Because the bill would establish a new Federal 
crime, the government would be able to pursue cases it 
otherwise would not be able to prosecute. However, CBO expects 
that any increase in costs for law enforcement, court 
proceedings, or prison operations would not be significant 
because of the small number of cases likely to be affected. Any 
such additional costs would be subject to the availability of 
appropriated funds.
    Because those prosecuted and convicted under H.R. 760 could 
be subject to criminal fines, the Federal Government might 
collect additional fines if the bill is enacted. Collections of 
such fines are recorded in the budget as governmental receipts 
(revenues), which are deposited in the Crime Victims Fund and 
later spent. CBO expects that any additional receipts and 
direct spending would be negligible because of the small number 
of cases involved.
    H.R. 760 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would impose no 
costs on State, local, or tribal governments. H.R. 760 would 
impose a private-sector mandate as defined by UMRA by 
prohibiting physicians from performing ``partial-birth 
abortions,'' as defined in the bill, except when necessary to 
save the life of a mother. The direct costs of the mandate 
would be measured as the net income forgone by physicians and 
clinics. Based on information from industry sources and 
nongovernmental organizations, CBO expects that the direct cost 
of the mandate would fall below the annual threshold 
established by UMRA for private-sector mandates ($117 million 
in 2003, adjusted annually for inflation).
    The CBO staff contacts for this estimate are Mark Grabowicz 
(for Federal costs), who can be reached at 226-2860, and Paige 
Piper/Bach (for the impact on the private sector), who can be 
reached at 226-2940. This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clause 3 of the 
Constitution.

               Section-by-Section Analysis and Discussion

    H.R. 760 prohibits the procedure commonly known as partial-
birth abortion.
Section 1. Short Title
    This section states that the short title of this bill is 
the ``Partial-Birth Abortion Ban Act of 2003.''
Section 2. Findings
    In paragraph (1) Congress finds that a moral, medical, and 
ethical consensus exists that the practice of performing a 
partial-birth abortion--an abortion in which a physician 
delivers an unborn child's body until only the head remains 
inside the womb, punctures the back of the child's skull with a 
sharp instrument, and sucks the child's brains out before 
completing delivery of the dead infant--is a gruesome and 
inhumane procedure that is never medically necessary and should 
be prohibited.
    In paragraph (2) Congress finds that 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. Congress also finds that 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.
    In paragraph (3) Congress finds that in Stenberg v. 
Carhart,\134\ 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. Congress also finds that as a result of having 
reached this conclusion 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.
---------------------------------------------------------------------------
    \134\ 530 U.S. 914, 932 (2000).
---------------------------------------------------------------------------
    In paragraph (4) Congress finds that 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.
    In paragraph (5) Congress finds that the great weight of 
evidence presented at the Stenberg trial and other trials 
challenging partial-birth abortion bans, as well as at 
extensive Congressional hearings, 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 of the standard of 
medical care.
    In paragraph (6) Congress finds that 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.'' Congress also finds that 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.'' \135\ Congress also finds that 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.'' \136\
---------------------------------------------------------------------------
    \135\ Anderson v. City of Bessemer, North Carolina, 470 U.S. 564, 
573 (1985).
    \136\ Id. at 574.
---------------------------------------------------------------------------
    In paragraph (7) Congress finds that 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.
    In paragraph (8) Congress finds that under well-settled 
Supreme Court jurisprudence, it is not bound to accept the same 
factual findings that the Supreme Court was bound to accept in 
Stenberg under the ``clearly erroneous'' standard. Congress 
also finds that it 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.
    In paragraph (9) Congress finds that in Katzenbach v. 
Morgan,\137\ 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.'' \138\
---------------------------------------------------------------------------
    \137\ 384 U.S. 641 (1966).
    \138\ Id. at 653.
---------------------------------------------------------------------------
    In paragraph (10) Congress finds that 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.'' \139\
---------------------------------------------------------------------------
    \139\ City of Rome, Georgia v. U.S., 472 F. Supp. 221 (D. D. Col. 
1979) aff'd City of Rome, Georgia v. U.S., 446 U.S. 156 (1980).
---------------------------------------------------------------------------
    In paragraph (11) Congress finds that 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.\140\ Congress finds that 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.'' Congress finds that 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.'' \141\ 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.'' \142\
---------------------------------------------------------------------------
    \140\ 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).
    \141\ 512 U.S. at 665-66.
    \142\ Id. at 666.
---------------------------------------------------------------------------
    In paragraph (12) Congress finds that 3 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.' '' 
\143\ Congress finds that, 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,'' \144\ and added 
that it ``owe[d] Congress' findings an additional measure of 
deference out of respect for its authority to exercise the 
legislative power.'' \145\
---------------------------------------------------------------------------
    \143\ 520 U.S. at 195.
    \144\ Id. at 195
    \145\ Id. at 196.
---------------------------------------------------------------------------
    In paragraph (13) Congress finds that 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 also 
finds that it was informed by extensive hearings held during 
the 104th and 105th Congresses and passed a ban on partial-
birth abortion in the 104th, 105th, and 106th Congresses. 
Congress finds that these findings reflect its very informed 
judgment 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.
    In paragraph (14) Congress, pursuant to the testimony 
received during extensive legislative hearings during the 104th 
and 105th Congresses, lists its declarations regarding the 
relative health and safety of a partial-birth abortion:

          In paragraph (14)(A) Congress 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.
          In paragraph (14)(B) Congress declares that there is 
        no credible medical evidence that partial-birth 
        abortions are safe or are safer than other abortion 
        procedures. Congress also declares that 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. Congress further declares that 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. Congress also declares that 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.
          In paragraph (14)(C) Congress declares that 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.''
          In paragraph (14)(D) Congress declares that 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.
          In paragraph (14)(E) Congress declares that 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.
          In paragraph (14)(F) Congress declares that a ban on 
        the partial-birth abortion procedure will advance the 
        health interests of pregnant women seeking to terminate 
        a pregnancy.
          In paragraph (14)(G) Congress declares that in light 
        of this overwhelming evidence, Congress and the States 
        have a compelling interest in prohibiting partial-birth 
        abortions. Congress also declares that 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.
          In paragraph (14)(H) Congress declares that based 
        upon Roe v. Wade,\146\ and Planned Parenthood v. 
        Casey,\147\ a governmental interest in protecting the 
        life of a child during the delivery process arises, in 
        part, by virtue of the fact that during a partial-birth 
        abortion, labor is induced and the birth process has 
        begun. Congress further declares that 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. Congress declares that this interest becomes 
        compelling as the child emerges from the maternal body. 
        Congress declares that a child that is completely born 
        is a full, legal person entitled to constitutional 
        protections afforded a ``person'' under the United 
        States Constitution. Congress declares that 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.
---------------------------------------------------------------------------
    \146\ 410 U.S. 113 (1973).
    \147\ 505 U.S. 833 (1992).
---------------------------------------------------------------------------
          In paragraph (14)(I) Congress declares that the 
        distinction between a partial-birth abortion and other 
        abortion methods has been recognized by 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.''
          In paragraph (14)(J) Congress declares that a 
        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. Congress further declares that a 
        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.
          In paragraph (14)(K) Congress declares that 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.
          In paragraph (14)(L) Congress declares that 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.
          In paragraph (14)(M) Congress declares that the vast 
        majority of babies killed during partial-birth 
        abortions are alive until the end of the procedure. 
        Congress further declares that 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.
          In paragraph (14)(N) Congress declares that 
        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. Congress 
        further declares that as a result it has a compelling 
        interest in acting--indeed it must act--to prohibit 
        this inhumane procedure.
          In paragraph (14)(O) Congress declares that for these 
        reasons, it 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.
Section 3. Prohibition on Partial-Birth Abortions
    This section amends Title 18 of the United States Code by 
inserting after chapter 73 the following:

                  CHAPTER 74--PARTIAL-BIRTH ABORTIONS

Section 1531. Partial-Birth Abortions Prohibited
          Subsection (a) prohibits any physician from, in or 
        affecting interstate or foreign commerce, knowingly 
        performing a partial-birth abortion and thereby killing 
        a human fetus. A physician who does so shall be fined 
        under this title or imprisoned not more than 2 years, 
        or both. This paragraph 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 paragraph takes effect 
        1 day after the enactment.
          Subsection (b)(1) defines a ``partial-birth 
        abortion'' as an abortion in which 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 
        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 then performs the overt act, other than completion 
        of delivery, that kills the partially delivered living 
        fetus.
          Subsection (b)(2) defines the term ``physician'' as 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.
          Subsection (c)(1) provides for a civil cause of 
        action for 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, unless the pregnancy resulted from the 
        plaintiff's criminal conduct or the plaintiff consented 
        to the abortion.
          Subsection (c)(2) provides that such relief shall 
        include money damages for all injuries, psychological 
        and physical, occasioned by the violation of this 
        section; and statutory damages equal to three times the 
        cost of the partial-birth abortion.
          Subsection (d)(1) allows a defendant accused of an 
        offense under this section to 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.
          Subsection (d)(2) provides that the findings on that 
        issue are admissible on that issue at the trial of the 
        defendant. It also provides that 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.
          Subsection (e) provides that 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.
          Subsection (b) is a clerical amendment to insert the 
        new chapter in the table of chapters for part I of 
        title 18, after the item relating to chapter 73.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE



           *       *       *       *       *       *       *
                             PART I--CRIMES

Chap.                                                               Sec.
1.     General provisions.........................................     1
     * * * * * * *
74.  Partial-birth abortions......................................  1531
     * * * * * * *

                  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--
                    (A) 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 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.

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                       WEDNESDAY, MARCH 26, 2003

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.

           *       *       *       *       *       *       *

    Now, pursuant to notice, the next item on the agenda is the 
adoption of H.R. 760, the ``Partial-Birth Abortion Ban Act of 
2003.''
    The Chair recognizes the gentleman from Ohio, Mr. Chabot, 
Chairman of the Subcommittee on the Constitution, for a motion.
    Mr. Chabot. Mr. Chairman, the Subcommittee on the 
Constitution reports favorably the bill H.R. 760 and moves its 
favorable recommendation to the full House.
    Chairman Sensenbrenner. Without objection, H.R. 760 will be 
considered as read and open for amendment at any point.
    [The bill, H.R. 760, follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Ohio, Mr. Chabot, to strike the last word.
    Mr. Chabot. Thank you, Mr. Chairman.
    On February 13, 2003, on behalf of a bipartisan coalition 
numbering over 100 Members, I introduced H.R. 760, the 
``Partial-Birth Abortion Ban Act of 2003,'' which will ban the 
dangerous and inhumane procedure during which a physician 
delivers an unborn child's body until only the head remains 
inside the womb, punctures the back of the child's skull with a 
sharp instrument, and sucks the child's brains out before 
completing delivery of the now-dead infant. An abortionist who 
violates this ban would be subject to fines or a maximum of 2-
year imprisonment, or both.
    H.R. 760 also establishes a civil cause of action for 
damages against an abortionist who violates the ban and 
includes an exception for those situations in which a partial-
birth abortion is necessary to save the life of the mother.
    A moral, medical, and ethical consensus exists that 
partial-birth abortions are inhumane procedures that are never 
medically necessary and should be prohibited. Contrary to the 
claims of partial-birth abortion advocates, this barbaric 
procedure remains an untested, unproven, and potentially 
dangerous procedure that has never been embraced by the medical 
profession.
    As a result, the United States Congress voted to ban 
partial-birth abortions during the 104th, 105th, 106th 
Congresses, and at least 27 States enacted bans on the 
procedure. Unfortunately, the two Federal bans that reached 
President Clinton's desk were promptly vetoed.
    To address the concerns raised by the majority opinion of 
the United States Supreme Court in Stenberg v. Carhart, H.R. 
760 differs from these previous proposals in two areas:
    First, the bill contains a new, more precise definition of 
the prohibited procedure to address the Court's concerns that 
Nebraska's definition of the prohibited procedure might be 
interpreted to encompass a more commonly performed late-second-
trimester abortion procedure. As yesterday's hearing on H.R. 
760 indicated, this bill clearly distinguishes the procedure it 
would ban from other abortion procedures.
    The second difference addresses the majority's opinion that 
the Nebraska ban placed an undue burden on women seeking 
abortions because it did not include an exception for partial-
birth abortions deemed necessary to preserve the health of the 
mother. The Stenberg court based its conclusion on the trial 
court's factual findings regarding the relative health and 
safety benefits of partial-birth abortions, findings which were 
highly disputed.
    The Court was required to accept these findings because of 
the highly deferential, ``clearly erroneous'' standard that is 
applied to lower-court factual findings. Those factual 
findings, however, are inconsistent with the overwhelming 
weight of authority, which indicates that a partial-birth 
abortion is never medically necessary to preserve the health of 
a woman, poses serious risks to the woman's health, and lies 
outside standard medical care.
    Under well-settled Supreme Court jurisprudence, 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.
    Thus, the first section of H.R. 760 contains Congress' 
extensive factual findings that, based upon extensive medical 
evidence compiled during congressional hearings, a partial-
birth abortion is never necessary to preserve the health of a 
woman.
    The American Medical Association has concluded that 
partial-birth abortion is, quote, ``not an accepted medical 
practice,'' unquote. Yesterday, our Subcommittee received 
additional testimony regarding the relative health and safety 
benefits of partial-birth abortion. The Subcommittee on the 
Constitution passed the ban by an 8-4 vote. Despite 
overwhelming support from the public, the handful of 
organizations that support the practice of partial-birth 
abortion have consistently tried to hide the truth about this 
gruesome procedure.
    Following the introduction of our bill, the abortion lobby 
swung into action just as it did when virtually identical 
legislation, H.R. 4965, was introduced and approved by the 
107th Congress. Statements from those opposed to H.R. 760 
continue to charge us with using inflammatory rhetoric, 
characterize this bill as ``deceptive'' and efforts to pass it 
as ``mere politics,'' and said the legislation would hurt 
women.
    Obviously, I strongly disagree with this assessment of the 
legislation that we will consider today. In fact, I would 
remind everyone that it is the false rhetoric and 
misinformation of the abortion lobby that was exposed as 
blatant propaganda in 1997. You might recall that the executive 
director of the National Coalition of Abortion Providers 
admitted that he, quote, lied through his teeth, unquote, when 
he stated that partial-birth abortions were rarely performed. 
He went on to say that the procedure is--Mr. Chairman, could I 
have one additional minute?
    Chairman Sensenbrenner. Without objection.
    Mr. Chabot. Thank you. He went on to say that the procedure 
is most often performed on healthy mothers who are about 5 
months pregnant with healthy fetuses. He acknowledged that he 
lied because he feared the truth would damage the abortion 
rights cause.
    The truth today is really quite simple. Opponents of this 
bill want to hide from the facts. They do not want people to 
hear a legitimate description or view accurate images of this 
procedure. They don't want to talk about the pain inflicted on 
the child or how partial-birth abortions border on infanticide. 
They just want to make the issue go away because it might be 
harmful to their cause. They are less concerned about the harm 
it may cause the baby or the mother.
    Fortunately, I am confident that the public, a majority of 
the Congress, and the President all recognize the true horrors 
of partial-birth abortion and are committed to ending this 
barbaric and inhuman practice.
    On March 13, 2003, the Senate passed virtually identical 
legislation, S. 3, by a 64-33 vote.
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    Mr. Chabot. I ask my colleagues to pass this legislation.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott?
    Mr. Scott. Mr. Chairman, this bill is unconstitutional and 
everybody knows it. The Constitution in the Stenberg case lets 
everybody know that a health exception is required. I'll have 
an amendment in due course to apply a health exception and will 
make a more extensive statement at that time.
    I yield back.
    Chairman Sensenbrenner. Without objection, all Members may 
insert opening statements in the record at this point.
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress From the State of Texas
    Mr. Chairman, once again we are considering legislation that is 
unconstitutional, and once again I oppose this legislation.
    We recently honored the 30th anniversary of the landmark Roe v. 
Wade decision. This decision reaffirmed a woman's right to choose. H.R. 
760 is not only unconstitutional but it is yet another attempt to ban 
so-called ``partial birth abortions.'' This is a non-medical term. The 
U.S. Supreme Court struck down a similar statute in Stenberg v. 
Carhart. The Court invalidated a Nebraska statute banning so-called 
``partial birth abortions. So, this legislation is at odds with the 
court's ruling. In Roe v. Wade, the court held that women had a privacy 
interest in electing to have an abortion, based on the 5th and 14th 
Amendments' concept of personal liberty.
    Despite the fact that the Supreme Court struck down legislation 
virtually identical to H.R. 760 in the year 2000, anti-choice Members 
of Congress sacrifice women's health by promoting this legislation to 
advance their long-term goal of eliminating a woman's right to choose.
    H.R. 760 is unconstitutional for the same two reasons the Supreme 
Court found other statutes attempting to ban partial birth abortions 
unconstitutional.
    First, H.R. 760 lacks a health exception, which the Supreme Court 
unequivocally said was a fatal flaw in any restriction on abortion.
    Second, the non-medical term ``partial birth abortion'' is overly 
broad and would include a ban of safe, pre-viability abortions. Banning 
the safest abortion option imposes an undue burden on a woman's ability 
to choose.
    H.R. 760 would improperly put the government in the physician's 
office. Allowing physicians to exercise their medical judgment is not 
only good policy--it is also the law. In Stenberg v. Carhart, 530 U.S. 
914 (2000), the Supreme Court ruled that all abortion legislation must 
allow the physician to exercise reasonable medical judgment, even where 
medical opinions differ. The Court made clear that exceptions to an 
abortion ban cannot be limited to situations where the health risk is 
an ``absolute necessity,'' nor can the law require unanimity of medical 
opinion as to the need for a particular abortion method.
                   h.r. 760's findings are incorrect
 LThe findings to H.R. 760 attempt to justify the fact that the 
bill directly conflicts with Carhart by suggesting that the Supreme 
Court must defer to Congressional fact-finding, even if Congress's so-
called ``facts'' conflict with the preponderance of evidence in 
litigation before the Court. But the drafters of H.R. 760 are wrong. 
First, a fundamental tenet of our constitutional structure, which 
establishes three separate branches of the federal government, is that 
Congress can enact laws, but it cannot decide whether those laws are 
constitutional. The power to decide what laws are constitutional is 
exclusively the Supreme Court's role. Second, the Supreme Court is not 
required to defer to Congressional fact-finding. Rather, the Court has 
the power and the duty to independently assess the evidence that is 
presented to it, as it did in Carhart, and has no obligation to defer 
to Congressional findings on ``partial-birth abortion.''

 LThe drafters of H.R. 760 are clearly wrong in asserting that 
they can overrule Carhart through legislation. Prior attempts by 
Congress to undo disfavored Supreme Court rulings (such as Congress's 
attempt to legislatively overturn Miranda v. Arizona, 384 U.S. 436 
(1966), and Employment Division, Dep't of Human Resources of regon v. 
Smith, 494 U.S. 872 (1990)) have been soundly rejected by the Supreme 
Court. Given the utter absence of legal support for this bill, it must 
be seen as a purely political gesture, not as a serious attempt at 
legislation.

Most importantly, the medical community does not support banning these 
partial birth abortions.

 LThe American College of Obstetricians and Gynecologists 
(ACOG), whose more than 44,000 members represent approximately 95% of 
all board-certified obstetricians and gynecologists practicing in the 
United States, opposes abortion ban legislation and has stated that ``. 
. . [t]he intervention of legislative bodies into medical decision 
making is inappropriate, ill advised, and dangerous.''

 LMoreover, ACOG has concluded that intact dilation and 
extraction (``intact D&E;'' or ``D&X;'') is a safe procedure and may be 
the safest option for some women.

 LIn addition to ACOG, other medical groups have opposed 
attempts by Congress to enact abortion ban legislation, including:

 LThe American Public Health Association, the American Nurses 
Association, the American Medical Women's Association, the California 
Medical Association, Physicians for Reproductive Choice and Health, the 
American College of Nurse Practitioners, the American Medical Student 
Association, the Association of Reproductive Health Professionals, the 
Association of Schools of Public Health, the Association of Women 
Psychiatrists, the National Asian Woman's Health Organization, the 
National Association of Nurse Practitioners in Reproductive Health, the 
National Black Women's Health Project, the National Latina Institute 
for Reproductive Health, the National Women's Health Network, and the 
Rhode Island Medical Society.

    I urge my colleagues to oppose this measure both for constitutional 
and health reasons.

    Are there amendments? The gentleman from Virginia?
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment offered by Mr. Scott, Ms. Baldwin, and 
Ms. Jackson Lee to H.R. 760, the ``Partial-Birth Abortion Ban 
Act of 2003.'' On page 16, on line----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    As I said, the bill in its present form without this 
amendment is clearly unconstitutional. The bill before us will 
not prohibit any abortions. It claims to prohibit a procedure, 
but even if it does, the abortion will take--still take place 
using another procedure. And I will not inflame the debate by 
describing in detail the alternative procedures that may be 
used, but I would point out that Nebraska had a law banning 
this procedure, the so-called partial-birth abortion, and 
nearly 3 years ago, the United States Supreme Court held in 
Stenberg--in the Stenberg case that that law was 
unconstitutional.
    The Supreme Court said five times in its majority opinion 
and other times in concurring opinions that in order to make a 
partial-birth abortion ban constitutional, the law must contain 
a health exception to allow the procedure when it is, quote, 
``necessary in the appropriate medical judgment for the 
preservation of the life or health of the mother.'' This is 
what five Supreme Court Justices said is necessary to make the 
bill constitutional, and all five are still on the Supreme 
Court.
    In the Stenberg case, the Court said, ``The question before 
us is whether Nebraska's statute making criminal the 
performance of a partial-birth abortion violates the Federal 
Constitution as interpreted in the Casey case. We conclude that 
it does for at least two independent reasons,'' and they said 
the first reason was that the law lacks an exception for the 
preservation of the health of the mother. The Stenberg case 
reminded us what a long line of cases has held, that, quote, 
``subsequent to viability, the State, in promoting its interest 
in the potentiality of human life, may, if it chooses, regulate 
and even proscribe abortion, except''--and they put this in 
italics--``when it is necessary and appropriate medical 
judgment for the preservation of the life or health of the 
mother.''
    It goes on to say, in quotes, in case we didn't understand 
the italics, that ``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.''
    We didn't get--if we didn't get that, the Court stated 
again, ``By no means must a State grant physicians unfettered 
discretion in their selection of abortion methods, but where 
substantial medical authority supports the proposition that 
banning a particular abortion procedure could endanger a 
woman's health, Casey requires the statute to include an 
exception where the procedure is necessary in the appropriate 
medical judgment for the preservation of the life and the 
health of the mother. Requiring such an exception in this case 
is no departure from Casey, but simply a straightforward 
application of its holding.''
    Mr. Chairman, whatever your views are on the underlying 
issue of abortion, we ought to read the decision and apply the 
law. The Supreme Court in one opinion said at least five times 
that a health exception must be included for the statute to be 
constitutional. Furthermore, they put ``necessary in the 
appropriate medical judgment for the preservation of the life 
or health of the mother'' in italics and in quotation marks. We 
now consider a bill without this health exception.
    Now, the bill tries to evade the Stenberg ruling by making 
a finding that a partial-birth abortion is never necessary. 
Unfortunately, the hearing record reflects that this conclusion 
is contradicted by rulings in at least seven courts and the 
American College of Obstetricians and Gynecologists, who said 
that it is sometimes necessary to save the life or health of 
the mother.
    Now, since the Court has made it clear that such a health 
exception is required, any bill that passes without such a 
health exception will be found unconstitutional. I, therefore, 
urge my colleagues to vote for the amendment to make the bill 
constitutional, and I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot?
    Mr. Chabot. Thank you, Mr. Chairman. Move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Mr. Chairman, I oppose this amendment. This 
amendment should be opposed for a number of reasons.
    The overwhelming weight of the evidence compiled in a 
series of congressional hearings indicates that partial-birth 
abortions are never necessary to preserve the health of a woman 
and, in fact, pose substantial health risks to women who 
undergo this procedure. No controlled studies of partial-birth 
abortions have been conducted, nor have any comparative studies 
been conducted to demonstrate its safety or efficacy compared 
to other abortion methods.
    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. Neither 
the plaintiff in Stenberg v. Carhart, Dr. Leroy Carhart, nor 
the experts who testified on his behalf have identified a 
single circumstance during which a partial-birth abortion is 
necessary to preserve the health of the woman. In fact, 
according to Dr. Carhart's own testimony, when he was chosen to 
perform--when he has chosen to perform partial-birth abortions, 
he has done so based upon the happenstance of the presentation 
of the unborn child, not because it was the only procedure that 
would have preserved the health of the mother.
    Dr. Martin Haskell, 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.
    Leading proponents of partial-birth abortions acknowledge 
that it poses additional health risks because, among other 
things, the procedure requires a high degree of surgical skill 
to pierce the infant's skull with a sharp instrument in a blind 
procedure.
    Dr. Warren Hearn has testified that he had, quote, very 
serious reservations about this procedure, and that he could 
not imagine a circumstance in which this procedure would be 
safest. Although he was opposed to legislation banning partial-
birth abortions, he also stated, ``You really can't defend it. 
I'm not going to tell somebody else that they should not do 
this procedure, but I'm not going to do it.''
    He has also stated, ``I would dispute any statement that 
this is the safest procedure to use.''
    The procedure also poses the following additional health 
risks to the woman: 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 Williams 
Obstetrics, a leading obstetrics textbook, there are very few, 
if any, indications for, other than for delivery of a second 
twin; and a risk of iatrogenic 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 serious bleeding, brings with it the threat of shock, and 
could ultimately result in maternal death. This also creates a 
high risk of infection should she suffer a laceration.
    Finally, a health exception, no matter how narrowly 
drafted, gives the abortionist unfettered discretion in 
determining when a partial-birth abortion may be performed. And 
abortionists have demonstrated that they can justify any 
abortion on this ground. Dr. Warren Hearn of Colorado, the 
author of the standard textbook on abortion procedures, who 
also performs many third-trimester abortions, has stated, ``I 
will certify that any pregnancy is a threat to a woman's life 
and could cause grievous injury to her physical health.''
    It is unlikely then that a law that includes such an 
exception as being proposed would ban a single partial-birth 
abortion or any other late-term abortion.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the----
    Ms. Baldwin. Mr. Chairman?
    [Intervening business.]
    Chairman Sensenbrenner. The gentlewoman from Wisconsin?
    Ms. Baldwin. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Baldwin. Thank you, Mr. Chairman.
    I am offering this amendment today with my colleagues from 
Virginia, Mr. Scott, and Texas, Ms. Jackson Lee. this amendment 
would provide an exception in order to protect the health of 
the mother.
    The families that are affected by this bill are dealing 
with the tragic circumstances of crisis pregnancies. In most 
cases, they have just learned that their babies will not 
survive. They are then confronted by choices that none of us 
would wish on any human being. This is the context in which 
these circumstances under which this legislation comes into 
play. And any suggestion to the contrary deceives the American 
public about the realities of this issue.
    The experiences that families face with crisis pregnancies 
are real. Their stories demonstrate the need for this exception 
to protect the health of the mother. Kathy and Chris from 
Wisconsin were married and were excited when they found out 
that Kathy was pregnant 6 years ago. They received the best 
prenatal care for their baby, and the pregnancy seemed to be 
going just fine. She was over 6 months along when they went to 
their doctor to have an ultrasound and discovered that their 
baby was developing with no brain. There was a tumor in the 
baby's brain cavity and other factors that would compromise and 
jeopardize Kathy's health. Her doctor recommended that she have 
an abortion.
    Imagine the pain of these parents who so much wanted to 
have this, their first child. Tragically, their doctor could 
not locate a provider in Wisconsin, and so they had to travel 
over a thousand miles away.
    After extensive tests, another doctor determined that this 
procedure, the one being banned under this bill, was medically 
necessary to protect Kathy's health. Because of the stigma 
associated with this procedure, neither Chris nor Kathy even 
told their parents that they had to have this procedure. But 
now Kathy is speaking out because she believes that women must 
know that when they are faced with an extremely dangerous 
pregnancy, they deserve the right to protect their own health.
    Typically, women who must face this decision want nothing 
more than to have a child and are devastated to learn that 
their baby would not survive outside the womb. In consultation 
with their doctors and families, they make difficult decisions 
to terminate pregnancies to preserve their own health and in 
many cases to preserve their ability to have children in the 
future.
    This was the case for Kathy and Chris, who, because they 
took steps to terminate her first pregnancy, now have a 
beautiful 5-year-old son, Frederick. How can we look a woman 
like Kathy in the eyes and tell her that she cannot have a safe 
procedure that would preserve her health and give her the best 
chance to have children in the future?
    Our compassion alone should justify a health exception. But 
if you need more than that, the U.S. Supreme Court has made it 
clear that such an exemption is constitutionally required. In 
Stenberg v. Carhart, the Court, in striking down a Nebraska 
statute, held that it was unconstitutional because there was no 
health exception for the mother. The language in this amendment 
is taken directly from that Supreme Court's ruling.
    Denying a maternal health exception is wrong and it is 
unconstitutional. If this bill passes today without the 
adoption of this amendment, women who are already dealing with 
the tragic consequences of a crisis pregnancy will have their 
health put in serious danger.
    I urge Members to support this amendment on behalf of Kathy 
and on behalf of all women who have faced this most difficult 
decision, and on behalf of Frederick and all the children who 
have been brought into the world because their mothers had 
access to safe abortions, including this procedure, and were 
able to have children again.
    I yield back.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from----
    Mr. Schiff. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Schiff.
    Mr. Schiff. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. Mr. Chairman, I'd yield the balance of my time 
to the gentleman from Virginia.
    Mr. Scott. Thank you, and I thank the gentleman for 
yielding.
    In response to one of the things that the gentleman from 
Ohio said, he mentioned the words ``unfettered discretion,'' 
which are mentioned in a dissent but are dealt with in the 
majority opinion, which says--this is the majority opinion, 
five Justices, ``By no means must a State grant physicians 
unfettered discretion in their selection of abortion methods, 
but where substantial medical authority supports the 
proposition that banning a particular abortion procedure could 
endanger a woman's health, Casey requires the statute to 
include a health exception when the procedure is necessary in 
the appropriate medical judgment for the preservation of the 
life or health of the mother.''
    Regarding such an exception in this case is no departure 
from Casey, but simply a straightforward application of its 
holding. And we have substantial medical authority that this 
procedure could be necessary to save a woman's health or life.
    Thank you, and I thank the gentleman for yielding, and I 
yield back to the gentleman from California. Adam?
    Chairman Sensenbrenner. The gentleman from California yield 
back?
    Mr. Schiff. Yes, I yield back, Mr. Chairman.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Virginia, Mr. Scott. Those in 
favor will say aye? Opposed, no.
    The noes appear to have it--a rollcall will be ordered. 
Those in favor of the Scott amendment will, as your names are 
called, answer aye, those opposed, no, and the clerk will call 
the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Ms. Hart?
    [No response.]
    The Clerk. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Carter?
    Mr. Carter. No.
    The Clerk. Mr. Carter, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mrs. Blackburn?
    Mrs. Blackburn. No.
    The Clerk. Mrs. Blackburn, no. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change their vote? The gentleman from Alabama, Mr. 
Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Chairman Sensenbrenner. The gentlewoman from Pennsylvania, 
Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to cast or change their votes? If not, the clerk will 
report.
    The Clerk. Mr. Chairman, there are 7 ayes and 15 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler?
    Mr. Nadler. Mr. Chairman, I was delayed in getting here 
because of a Democratic caucus on the subject of Iraq, and I 
request permission to read my opening statement now.
    Chairman Sensenbrenner. Opening statements will be put into 
the record.
    Mr. Nadler. I'd like to read the opening statement.
    Chairman Sensenbrenner. Well, the----
    Mr. Nadler. I was delayed because of a caucus on Iraq. Our 
troops are in the field, and I think there should be a little 
flexibility because of that fact.
    Chairman Sensenbrenner. Well, it has been the policy of the 
Committee to have one opening statement on each side. The 
gentleman from Virginia gave the Democrats' opening statement, 
and the Chair asked for and received unanimous consent that all 
Members place opening statements into the record.
    Mr. Nadler. Mr. Chairman, I ask unanimous consent--I'm the 
Ranking Member on the Subcommittee that considered this bill, 
and as--that considered this bill and reported it yesterday. 
And as I said, if it weren't for the caucus on Iraq, I would 
have been here. I would have given the Democratic opening 
statement. And I think----
    Chairman Sensenbrenner. For what purpose does the gentleman 
ask unanimous consent for?
    Mr. Nadler. To strike the last word so that I may read the 
opening statement.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes--for what purpose does the gentleman from Alabama seek 
recognition?
    Mr. Nadler. I think, Mr. Chairman, we'd have no objection 
if one other opening statement on the Republican side were 
read.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    Today we have a very bad combination: Members of Congress 
who want to play doctor and Members of Congress who want to 
play Supreme Court. When you put the two together, you have a 
prescription for some very bad medicine for women in this 
country.
    We have been through this debate often enough to know that 
you will not find the term ``partial-birth abortion'' in any 
medical textbook. There are procedures that you will find in 
medical textbooks, but apparently the authors of this 
legislation would prefer to use the language of propaganda 
rather than the language of science.
    This bill as written fails every test the Supreme Court has 
laid down for what may or may not be a constitutional 
regulation on abortion. It reads almost as if the authors went 
through the Supreme Court's recent decision in Stenberg v. 
Carhart and went out of their way to thumb their noses at the 
Supreme Court, and especially at Justice O'Connor, who is 
generally viewed as a swing vote on such matters and who wrote 
a concurring opinion stating specifically what would be needed 
for her to uphold the statute.
    Unless the authors think that when the Court has made 
repeated and clear statements over the years of what the 
Constitution requires in this area, they were just pulling our 
collective legs, this bill has to be considered facially 
unconstitutional.
    First and foremost, it does not contain the health 
exception which the Court has repeatedly said is necessary, 
even with respect to post-viability abortions. The exception 
for a woman's life is more narrowly drawn than is required by 
the Constitution and will place doctors in the position of 
trying to guess just how grave a danger a pregnancy must pose 
to a woman before they can be confident that protecting her 
will not result in jail time.
    I know that some of my colleagues do not like the 
constitutional rule that has been in place and reaffirmed by 
the Court for 30 years, but that is the supreme law of the 
land, and no amount of rhetoric, even if written into a piece 
of legislation, will change that. Even the Ashcroft Justice 
Department, in its brief defending an Ohio statute, has 
acknowledged that a health exception is required by law. While 
I may disagree with the Department's views on whether the Ohio 
statute adequately protects women's health, there is at least 
an acknowledgment that the law requires that protection, which 
is not in this bill.
    This bill is mostly findings. If there is one thing this 
activist Court has made clear, it is that it is not very 
deferential to Congress' determinations of fact. While Congress 
is entitled to declare anything it wants, the courts are not 
duty-bound to accept everything we say at face value simply 
because it appears in a footnote to the United States Code.
    While I realize that many of the proponents of this bill 
view all abortion as tantamount to infanticide, that is not a 
mainstream view. This bill attempts to foist a marginal view on 
the general public by characterizing this bill as having to do 
only with abortions involving healthy, full-term fetuses. If 
the proponents of this bill really want to deal with post-
viability abortions in situations in which a woman's life and 
health are not in jeopardy, then they should write a bill 
dealing with that issue, although such a bill would be of 
marginal utility since 41 States already ban post-viability 
abortions. Very few people would oppose such a bill.
    As one of the lead sponsors of the Religious Freedom 
Restoration Act, which was struck down by the Supreme Court, I 
know that Congress--what comes of Congress ignoring the will of 
the Supreme Court. Whenever Congress--whatever power Congress 
had under section 5 of the 14th Amendment as a result of 
Katzenbach v. Morgan, which is copiously cited in the bill's 
findings, I think the more recent Boerne decision vastly 
undercut those powers. Even if Katzenbach were still fully in 
force, as I wish it were, that case only empowered Congress to 
expand not to curtail rights under the 14th Amendment. This 
bill, of course, aims to do the exact opposite.
    I doubt the majority is interested in a bill that could 
pass into law and actually be upheld as constitutional. What 
they want is an inflammatory piece of rhetoric which, even if 
passed, would most certainly be struck down by the Supreme 
Court. The real purpose of this bill is not, as we have been 
told, to save babies but to save candidates.
    We now have a President who has expressed a willingness to 
sign this bill. He may get his chance. Unfortunate, there will 
be dire consequences for American women if this legislation 
passes. Perhaps here in the halls of Congress the health of 
women takes a back seat to the most extreme views of the anti-
choice movement. Fortunately, the Constitution still serves as 
a bulwark against such efforts. And we know what the 
Constitution requires. If people are serious about enacting a 
piece of legislation that will be enforced by the courts, then 
they will put a health exception into this bill. They will talk 
about post-viability abortions. They will stop trying to define 
a procedure which is not recognized by the medical books, and 
they would have a constitutional bill.
    But apparently the proponents of this bill are not 
interested in saving babies; they're interested in saving 
elections.
    Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia.
    Mr. Forbes. Mr. Chairman, every time this bill comes up, it 
reminds me of a Casablanca movie, because instead of rounding 
up the usual suspects, what we do is round up the same old 
arguments, even though they are tired and worn out. And we need 
to understand that this piece of legislation is not about 
abortion really. It's not about choice. What this legislation 
is about, is about banning one horrific procedure. And the part 
of this procedure that's always struck me kind of supersedes 
all the constitutional arguments and all of the theories and 
the philosophies that we here flown back and forth in 
Subcommittee and full Committee, but it comes down to this, 
that this unborn baby, if it's my semantics or fetus if it's 
others, is subjected to an incredible amount of pain during 
this procedure. All of the testimony that we've had, which has 
been unrefuted, suggests that this unborn child or fetus has a 
developed brain that senses pain even more so than a more 
developed child or an adult.
    And, Mr. Chairman, I can't believe it when I hear folks who 
are supporting this procedure, who testify, as they did in our 
Subcommittee, that there is no threshold, no level of pain that 
could be inflicted on an unborn child or an unborn fetus that 
would be great enough that they would be willing to ban this 
procedure.
    Mr. Chairman, everybody needs to know that when this 
invasive procedure takes place on the brain of this unborn 
child, there is no, no pain management given, there is no 
neurologist that is there present, as it would otherwise take 
place. And Mr. Chairman, the thing that appalls me most is when 
you talk about this pain to some people who support this 
procedure, instead of being concerned about it, they sit there 
and smile with almost a lack of concern, and we need to 
understand that the pain that we inflict on this unborn child 
or fetus would not even be legal or allowed to be inflicted 
upon an animal.
    And, Mr. Chairman, that's why I think it's so vitally 
important that this Committee do everything we possibly can to 
get rid of this abhorrent, cruel procedure, and I hope that 
we'll support this bill and pass it on to the House.
    Chairman Sensenbrenner. The gentleman yield back?
    Mr. Forbes. I yield.
    Chairman Sensenbrenner. Other further amendments? The 
gentleman from New York.
    Mr. Nadler. Thank you, Mr. Chairman. I offer an amendment 
that's styled No. 2.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 760 offered by Mr. Nadler. 
Page 18, strike line 1 and all that follows----
    Chairman Sensenbrenner. Without objection the amendment is 
considered as read and the gentleman from New York is 
recognized for 5 minutes.
    [The amendment follows:]
    
    
    Mr. Nadler. Thank you, Mr. Chairman. This amendment would 
do away with language in the bill that would allow a birth 
father, if the parents are married, or the birth mother's 
parents if she is under 18 years of age, to sue the woman or 
her doctor. This is an outrageous intrusion into a woman's 
right to choose and will have absurd and disgraceful 
consequences.
    The bill, as drafted, would allow a birth father who has 
abandoned his pregnant wife to sue her for having an abortion 
even if it was to preserve her health because there is no 
health exception in this bill. He would be able to sue her and 
her doctor even if he abused her before abandoning her. I'm not 
sure that this is either a pro-family or a pro-life position. 
It is certainly pro plaintiff's lawyer, which is an appalling 
turnaround for Members who just recently voted to limit the 
compensation due to women who have been horribly mutilated by 
negligent medical treatment. This bill, however, would provide 
a windfall for the worst sorts of individuals.
    A doctor, before performing a medical procedure, would have 
to do some investigative work on his patient to determine if 
there was perhaps a separate spouse out there somewhere who 
might want to make a little money. How much investigation does 
a doctor have to do? Do a record search to see if the woman has 
ever been married, or if she has ever used any aliases, or to 
demand a copy of a divorce certificate before performing a 
medical procedure that may be required by the woman's health?
    Again, I remind you there's no health exception in this 
bill, although one is required by the Supreme Court.
    It is certainly not clear why the authors of this bill are 
insisting on placing a legal sword of Damocles over the heads 
of women and their doctors, except perhaps to make some 
mischief. This is really a disgraceful burden on a woman's 
right to choose, and I urge the Members to support this 
amendment to remove this language allowing such lawsuits 
against a woman and her doctor. I thank you and I yield back.
    Chairman Sensenbrenner. Gentleman from Ohio.
    Mr. Chabot. Thank you, Mr. Chairman. Move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Chabot. Mr. Chairman, I rise in opposition to this 
amendment. This amendment should be opposed because the civil 
enforcement provisions of the law are necessary to ensure that 
there are effective deterrents in place to keep physicians from 
performing partial-birth abortions, which will be banned, of 
course, when this becomes law. The civil action provision is 
also drafted to ensure that individuals do not profit from 
their own misconduct. The provision excludes, of course, 
plaintiffs who consented to the abortion, or whose criminal 
conduct caused the pregnancy.
    For those and other reasons, I strongly oppose this 
amendment, and would ask my colleagues to oppose.
    Chairman Sensenbrenner. The question is on the Nadler 
amendment. Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. Noes have it.
    Mr. Nadler. I say aye. Can we have a record vote?
    Chairman Sensenbrenner. Okay, the Chair is always willing 
to accommodate the gentleman from New York. Those in favor of 
the Nadler amendment will, as your names are called, answer 
aye, those opposed no, and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    [No response.]
    The Clerk. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Carter?
    Mr. Carter. No.
    The Clerk. Mr. Carter, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mrs. Blackburn?
    Mrs. Blackburn. No.
    The Clerk. Mrs. Blackburn, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. Pass.
    The Clerk. Ms. Jackson Lee, pass. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. The Members in the chamber wish to 
cast or change their votes? Gentleman from North Carolina, Mr. 
Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Chairman Sensenbrenner. Gentleman from Tennessee, Mr. 
Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. Further Members who wish to--
gentlewoman from California, Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Chairman Sensenbrenner. Gentleman from North Carolina, Mr. 
Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Chairman Sensenbrenner. Gentlewoman from Texas, Ms. Jackson 
Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 11 ayes and 15 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to. 
Are there further amendments?
    Ms. Baldwin. Mr. Chairman?
    Chairman Sensenbrenner. Gentlewoman from Wisconsin.
    Ms. Baldwin. Mr. Chairman, I have an amendment at the desk, 
Baldwin Amendment No. 2.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 760 offered by Ms. Baldwin. 
Page 16, beginning in line 15, strike ``or imprisoned'' and all 
that follows through ``both'' in line 16.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    [The amendment follows:]
    
    
    Ms. Baldwin. Thank you, Mr. Chairman. This amendment is 
also quite simple. It would strike the provision that subjects 
doctors to imprisonment for up to 2 years for performing any 
procedure proscribed by this legislation.
    Mr. Chairman, when making a decision to terminate a 
pregnancy, the doctor, in consultation with the patient, 
chooses the safest, most effective procedure based on the 
specific circumstances present. Physicians use their best 
medical judgment to make these very difficult decisions. Under 
this legislation Congress is taking away the decision making 
from doctors and their patients. Congress should not be 
involved in banning specific medical procedures.
    This legislation is overly vague. It is unclear exactly 
which procedures we would ban. The term ``partial-birth 
abortion'' has no legal or medical meaning. It is a term 
invented for political purposes. The findings and actual 
operative clauses of the bill are inconsistent in their 
definitions, and in both cases are overly vague.
    Medical experts testified just yesterday before the 
Constitution Subcommittee that the definition in the bill could 
easily be construed to ban the most commonly used second 
trimester abortion procedure.
    My point with this amendment is not to try to fix these 
flawed definitions. As I said, I believe it is wrong to ban 
medical procedures. But the flawed definition in this 
legislation is combined with criminal penalties of up to 2 
years in prison for physicians. We should not be inserting 
lawyers into the doctor's office to help them decide which 
procedure to use. They should be making these decisions based 
on medical judgment and safety.
    Mr. Chairman, the American Medical Association does not 
support this legislation because of these criminal sanctions. 
Dr. Ann Davis, Assistant Professor in Clinical Obstetrics and 
Gynecology at Columbia University testified yesterday that the 
risk of a particular abortion procedure varies in each case, 
depending on a variety of factors including the individual 
woman's health, the skill of the physician, the medical 
facilities available and how the selected procedure progresses 
in a particular case.
    Given these many variables and others that I didn't list, 
it is essential that a physician be able to choose from the 
full array of safe techniques. Having the physician add a legal 
review to these decisions because they are worried about 
criminal penalties due to a vague law is wrong. With this 
legislation before us, we in essence have Congress practicing 
medicine and doctors practicing law.
    I urge my colleagues to support this amendment and strike 
the criminal penalties on doctors.
    Chairman Sensenbrenner. Gentleman from Ohio.
    Mr. Chabot. Thank you, Mr. Chairman. Move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Mr. Chairman, this amendment should be 
rejected. I think it's important that we not lose sight of what 
we're really dealing with, what this procedure is all about.
    Brenda Pratt Schaefer was a registered nurse, and she 
observed Dr. Haskell use the partial-birth abortion procedure 
on at least three different babies, and she testified before 
the Senate Judiciary Committee and described a partial-birth 
abortion that she personally witnessed on a child who was 26\1/
2\ weeks along. And here's what she saw. She said, ``Dr. 
Haskell went in with forceps and grabbed the baby's legs and 
pulled them down into the birth canal. Then he delivered 
together baby's body and the arms, everything but the head. The 
doctor kept the head right inside the uterus. The baby's little 
fingers were clasping and unclasping and his little feet were 
kicking. Then the doctor stuck the scissors in the back of his 
head and the baby's arms jerked out like a startle reaction, 
like a flinch, like a baby does when he thinks he is going to 
fall. The doctor opened up the scissors, stuck a high-powered 
suction tube into the opening and sucked the baby's brains out. 
Now the baby went completely limp. He cut the umbilical cord 
and delivered the placenta. He threw the baby in a pan, along 
with the placenta and the instruments he had just used. I saw 
the baby move in the pan. I asked another nurse and she said it 
was just reflexes. That baby boy had the most perfect angelic 
face I think I've ever seen in my life.''
    And that's what Brenda Pratt Schaefer saw, what she 
witnessed with her own eyes.
    There are some medical procedures that are so abhorrent to 
society that they justify a criminal prohibition. The purpose 
of the criminal prohibitions are to ensure that physicians are 
significantly deterred from performing this otherwise improper 
procedure. In 1997 the American Medical Association noted the 
appropriateness of the partial-birth abortion bans penalty, 
stating, quote, ``The profession has supported criminal 
restrictions on improper medical procedures such as female 
genital mutilation, for example.''
    I mean there are just some procedures which are too 
abhorrent for a civilized society. This is one of those, and 
therefore, these criminal procedures need to stay in place. I 
encourage my colleagues to oppose this amendment and yield back 
the balance.
    Chairman Sensenbrenner. The question is on the Baldwin 
amendment. Those in favor will say aye.
    Ms. Baldwin. I ask for a recorded vote.
    Chairman Sensenbrenner. Those opposed, no.
    Noes appear to have it.
    Ms. Baldwin. Ask for a recorded vote.
    Chairman Sensenbrenner. Recorded vote is ordered. Those in 
favor of the Baldwin amendment will, as your names are called, 
answer aye, those opposed no, and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Carter?
    Mr. Carter. No.
    The Clerk. Mr. Carter, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mrs. Blackburn?
    [No response.]
    The Clerk. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members in the room who wish to 
cast or change their vote? Gentleman from North Carolina, Mr. 
Coble?
    Mr. Coble. Nay.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. Gentleman from Utah, Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to case or change their vote? The gentleman from 
Tennessee, Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. Other Members who wish to cast or 
change their votes?
    If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 8 ayes and 15 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to. 
Are there further amendments?
    Ms. Baldwin. Mr. Chairman?
    Chairman Sensenbrenner. Gentlewoman from Wisconsin.
    Ms. Baldwin. Mr. Chairman, I have an amendment at the desk, 
Baldwin Amendment No. 1.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 760 offered by Mrs. Baldwin. 
Strike Section 2.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    [The amendment follows:]
    
    
    Ms. Baldwin. Thank you, Mr. Chairman. This amendment is 
very straightforward. It strikes the findings from the bill. 
There are several good reasons to remove the findings from this 
bill.
    First, many of these findings are incorrect and inaccurate. 
As we have already discussed, the majority of medical evidence 
indicates that intact D&E; or D&X; procedure is a safe abortion 
procedure and may be the safest option for some women. The 
American College of Obstetricians and Gynecologists, the 
leading professional association of doctors specializing in 
women's health care, has stated that D&X;, and I quote, ``may be 
the best or most appropriate procedure in a particular 
circumstance to save the life or preserve the health of a 
woman.''
    It's not just these medical experts who believe that D&X; is 
a safe and effective procedure that is most appropriate in 
certain cases. The United States Supreme Court came to the same 
decision in Stenberg v. Carhart. The Court concluded that, 
quote, ``The record shows that significant medical authority 
supports the proposition that in some circumstances D&X; would 
be the safest procedure.''
    The findings in this bill simply ignore the significant 
evidence of medical experts and the reasoned judgment of the 
Supreme Court.
    The second reason to remove these findings is that they are 
not supported by any sort of legislative record. These 
findings, which are identical to last year's bill, were drafted 
and introduced before the Constitution Subcommittee even had a 
legislative hearing to establish any case to justify the bill. 
Talk about putting the cart before the horse. I always thought 
that fact finding came before legislating, especially if the 
majority wants to create a legislative record that will be 
considered and respected by the court. This Committee has 
failed to produce any such record and the court will rightly 
disregard these inaccurate and unsupported findings.
    The third reason to strike the findings in this bill is 
that they are unlikely to have any impact on the Supreme 
Court's judgment as to the constitutionality of this 
legislation. Federal courts have rejected our fact finding in 
the past. They have clearly stated that findings are subject to 
judicial review and independent judgment by the court. As 
Members of this Committee know well, the legislative record 
established for the Violence Against Women Act was one of the 
most extensive ever assembled by Congress. Four years of 
hearing on the Violence Against Women Act produced significant 
evidence, supported the findings that domestic violence 
impacted interstate commerce. Yet the court struck down the 
Violence Against Women Act's civil remedy in the Morrison 
decision, disregarding our very well documented findings.
    Mr. Chairman, these findings are not supported by the 
evidence. They're not supported by our Committee record, and 
they are not going to have any impact on the court's actions. I 
urge my colleagues to support this amendment.
    Chairman Sensenbrenner. Gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. Move to strike the last word.
    Chairman Sensenbrenner. Gentleman's recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. This amendment should 
be rejected. H.R. 760's findings are necessary statements of 
Congress' factual conclusions regarding the relative health and 
safety of a partial-birth abortion. The extensive findings make 
it clear that substantial evidence exists upon which Congress 
can conclude that a partial-birth abortion is not medically 
necessary to preserve the health of a women. Despite the claims 
of H.R. 760's opponents, the Supreme Court does not consider 
congressional findings irrelevant. Quite to the contrary. The 
court consistently reviews and discerns Congress' intentions 
based upon the findings. To remove the findings would remove 
the basis upon which the court could determine whether the 
legislative facts which support H.R. 760 are based upon 
reasonable inferences made from substantial evidence. The 
congressional findings are a critically important part of this 
bill, and therefore should remain. Thus I oppose this 
amendment.
    Yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the Baldwin 
amendment.
    Mr. Scott. Mr. Chairman, move to strike the last word?
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, I agree with the gentleman from 
Ohio, that you need these findings to make the bill 
constitutional. The only problem is they're not supported by 
the evidence. I forgot who it was that said facts are stubborn 
things, but the former President kind of changed that around a 
little bit, and said facts are stupid things. The fact is that 
the American College of Obstetricians and Gynecologists have 
said that, ``ACOG has concluded that there are circumstances 
under which this type of procedure would be the most 
appropriate and safest procedure to save the life or health of 
a women.'' That's an unfortunate stubborn fact that we have to 
deal with. The finding is in disagreement with that, and I 
think they all ought to be struck because they're inconsistent 
with the record.
    And appreciate the gentlelady's amendment. Yield back.
    Chairman Sensenbrenner. Gentleman from North Carolina, Mr. 
Watt.
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman. I won't take 5 minutes. 
I can agree with Mr. Scott on this issue. I think I understand 
why the majority is attempting to make a bunch of findings to 
try to legitimize the conclusion that they reach. 
Unfortunately, while there is probably information in the 
hearing record to support a set of findings that is here, 
there's also substantial information in the hearing record that 
supports the exact opposite conclusions, and it's not as if the 
Members who are supporting this legislation are not aware of 
that. They are aware of that. I mean we just heard this 
testimony yesterday. This became a part of the record. It's 
been over and over and over again made a part of the record. 
This is the American College of Obstetricians and 
Gynecologists, who is the organization that is the group that 
is an organization of people who are in this profession. And 
yet, somehow or another, you seem to want to disregard what 
they are saying, which seems to me to have as much or greater 
weight than all of the testimony that other people have given. 
I mean you can't just be selective about it. There has to be 
some equity here.
    And I just don't think these findings that are in this bill 
are supported by the record. I mean I have been here over and 
over and over again for hearings, and on every single panel of 
witnesses that we have heard, we have heard doctors or 
organizational representatives say that this procedure, in some 
limited number of cases, is the best and safest procedure 
that's available. And I don't know how we can just cavalierly 
disregard that unless we think we are somehow supposed to be 
not only the legislators here, but we decided we're going to be 
the doctors here.
    So I just don't--I can't subscribe to and support a set of 
findings that is just contrary in many respects to the evidence 
that I have sat in the room and heard with my own ears, and 
these people seem to me to be absolutely credible witnesses, 
and I don't know. Maybe they're wrong, maybe they're right. But 
I can't reject what they're saying and accept an opposite set 
of findings.
    I'll yield to Mr. Scott.
    Mr. Scott. Thank you, and I thank the gentleman for 
yielding.
    I just want to remind the Committee of a statement I've 
made at least twice during this hearing, and this is right out 
of the majority opinion, where the court says, ``Where 
substantial medical authority,'' doesn't say ``majority medical 
authority,'' but certainly ``substantial medical authority 
supports the proposition that banning a particular abortion 
procedure could''--doesn't say ``would''--``could endanger a 
woman's health.'' Casey requires the statute to include a 
health exception.
    Mr. Watt. I yield back, Mr. Chairman.
    Chairman Sensenbrenner. The question is on the Baldwin 
amendment.
    Mr. Bachus. Mr. Chairman?
    Chairman Sensenbrenner. Gentleman from Alabama.
    Mr. Bachus. I have a question for the sponsor of the 
amendment. The gentlelady from Wisconsin, do you believe in 
criminal penalties for child abuse? Do you support those?
    Ms. Baldwin. Yes.
    Mr. Bachus. You're saying yes? So you do support criminal 
penalties for child abuse?
    Ms. Baldwin. Yes.
    Mr. Bachus. All right, thank you.
    Chairman Sensenbrenner. The gentleman yield back the 
balance of his time?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentlemen from New York, Mr. 
Nadler.
    Mr. Nadler. Mr. Chairman, I simply want to point out that 
it is not child abuse to pursue--to perform or to execute a 
legal abortion which the Supreme Court has declared is a legal 
abortion.
    I want to say something else too, because it really 
pervades this whole discussion. You can--and you know, this 
whole bill, to make a particular abortion procedure illegal is 
in one sense dishonest and in one sense honest. It is dishonest 
in that it purports to talk about late term abortions, whereas 
these procedures may in fact be late term or less than late 
term. Late term abortions, no one really supports. They are 
already illegal in 41 States. And if the majority here really 
wanted a late term abortion bill, they would write a late term 
abortion bill, and as I said before, there would be very little 
opposition so long as you said after 24 weeks or 26 weeks, or 
whatever you've chosen along those lines, you can't perform the 
abortion except to save the life or health of the mother, which 
is the two requirements the Supreme Court says you must do. And 
if we had such a bill then all the talk about babies being 
inches from birth, et cetera would be taken care of, 
postviability. But that's not what this bill is really about.
    The other debate about this bill is a more honest debate, 
and it says, look, let's be squeamish. We can describe in 
gruesome terms the actual procedure by which a fetus is 
aborted, and it sounds terrible, and it's only inches from 
delivery, so let's, because it sounds terrible, let's outlaw 
it. But the fact is, and the opponents of abortion say this 
constantly too, you can probably describe other abortion 
procedures and make them sound terrible. But the fact is that 
if they're previability, then you can't legislate against them, 
period. The Supreme Court says so. If they're postviability you 
can legislate against them as long as you put in a life and 
health exception for the mother.
    So if you want to be honest, you put in a late term 
abortion bill that would pass, and would pass constitutional 
muster. If you want to be dishonest and just play to the 
political galleries but accomplish nothing, then you put in 
this bill, which is unconstitutional on its face, despite all 
the facile and nonsensical discussions that we're having here. 
Everybody knows the Supreme Court's going to throw it out. 
Despite any denials of that, it's obvious. Everybody knows 
that. It's facially unconstitutional. But it makes for good 
election headlines.
    Mr. Chabot. Would the gentleman yield? Would the gentleman 
yield?
    Mr. Nadler. Yes.
    Mr. Chabot. I can guarantee you that not everybody accepts 
that the Supreme Court is going to throw this out.
    Mr. Nadler. Reclaiming my time. Everybody knowledgeable and 
not fooling themselves knows that the Supreme Court is going to 
throw it out unless there are some new appointments to the 
Supreme Court before it gets there. Then who knows?
    But the fact of the matter is, any competent scholar of 
constitutional who reads that knows exactly what the current 
Supreme Court would do. And the point is, again, if you want to 
ban a late term abortion, we should have a bill to do that. A 
constitutional ban, all it had to say is after 26 weeks, life 
and health exception, it would be constitutional. You wouldn't 
get too much exception. So let's stop talking about late term 
abortions, because that's easy to do if people really wanted to 
do it.
    What this bill does is something that it can't do and 
shouldn't do, which is to ban a particular form of abortion, 
previability as well as postviability. If it's postviability 
you can do it without even mentioning a particular procedure. 
If it's previability you can't do it in any event. So while we 
have all this discussion, it's just a lot of political nonsense 
not aimed at a real bill or at accomplishing anything real. I 
yield.
    Mr. Watt. Would the gentleman yield?
    Mr. Nadler. I'll yield to the gentleman.
    Mr. Watt. Let me just respond to Mr. Bachus's concern. We 
do think that criminal penalty is appropriate. The problem here 
is that these findings just simply are absolutely inconsistent 
with anything that is in the record, and it's not about child 
abuse. This would be a very close issue in any event because 
you are really put to the--even if you assume what you were 
underlying for the last few years, to put us to a choice where 
we've got to select between the health--the life of a baby or 
the life of the mother, which is what the evidence that's in 
the record suggests we would be doing, for me is at odds with 
any kind of----
    Chairman Sensenbrenner. Time of the gentleman has expired.
    Mr. Nadler. I ask unanimous consent to 30 seconds.
    Chairman Sensenbrenner. The gentleman from New York is 
recognized for another 30 seconds.
    Mr. Watt. Would the gentleman yield?
    Mr. Nadler. I yield.
    Mr. Watt. The very first finding says that there's a moral 
and ethical consensus that this procedure is never medically 
necessary. That is just absolutely inconsistent with the 
testimony that we have heard. It is not consistent with what 
the people have testified.
    Chairman Sensenbrenner. The gentleman's time has once again 
expired. The question----
    Mr. Hostettler. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostettler. Let me point out that there are votes scheduled at 
about 11:30. If we're not done with this bill by then, we will 
be back this afternoon.
    The gentleman from Indiana.
    Mr. Hostettler. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. I yield to the gentleman from Alabama.
    Mr. Bachus. Mr. Chairman, I'll be very brief.
    But I would like to respond first to the gentleman from 
North Carolina. He says that you're asking us to choose between 
the life of the mother and the baby, and we're not going to 
make that choice. I submit to you that, first of all, the 
mother's life, according to all the medical testimony that 
we've heard, is not endangered. The life of the baby is 
certainly----
    Mr. Watt. Would the gentleman yield?
    Mr. Bachus. And you are, in fact, choosing to kill that 
baby, which is an innocent baby.
    Now, we've had debates in this body about capital 
punishment, and some of the same people that are going to vote 
to take the life of this baby, which I think we all agree is 
innocent, have said that you oppose capital punishment--and you 
have two reasons. One is that you're taking innocent life, and 
one is that you're simply taking life, and that you don't 
believe in taking the life of anyone. But, in fact, by allowing 
this procedure to continue, you're doing that.
    Secondly, I would address the gentleman from New York. You 
said let's be honest here. But then you said this procedure is 
not child abuse. I just want to read two paragraphs and close 
with this. Every Member of this body can decide whether this is 
child abuse or not. I think this is the ultimate child abuse. 
This is what was read earlier.
    ``Dr. Haskell went in with forceps and grabbed the baby's 
legs and pulled them down into the birth canal. Then he 
delivered the baby's body and the arms, everything but the 
head. The doctor kept the head right inside the uterus.'' This 
is testimony before the Senate Judiciary Committee.
    ``The baby's little fingers were clasping and unclasping, 
and his little feet were kicking. Then the doctor stuck the 
scissors in the back of his head and the baby's arms jerked out 
like a startled reaction, like a flinch, like a baby does when 
he thinks he's going to fall.''
    ``The doctor opened up the scissors, stuck a high-powered 
suction tube into the opening, and sucked the baby's brains 
out. Now the baby went completely limp.''
    Mr. Nadler. Would the gentleman yield, since he misquoted 
me?
    Mr. Bachus. Let's be perfectly honest. Is that child abuse?
    Mr. Nadler. Would the gentleman yield, since he misquoted 
me?
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Indiana.
    Mr. Nadler. Would the gentleman yield?
    Mr. Hostettler. I yield to the gentleman from New York.
    Mr. Nadler. Thank you.
    What I said was that that procedure for abortion, as well 
as other procedures for abortion, which aren't being made 
illegal in this bill, could be made to sound very gruesome, but 
that if we really wanted to deal with that, we would do a late 
term abortion bill with the constitutional exceptions for the 
life and health of the mother and that would take care of that.
    Mr. Bachus. You do agree that what I just read is child 
abuse?
    Mr. Nadler. No, I will not agree. But I'm saying, if we 
really wanted to deal with that, we could deal with it, but not 
with this bill, which won't deal with it.
    Mr. Bachus. Do you consider that child abuse or not, to do 
that?
    Chairman Sensenbrenner. The time is controlled by the 
gentleman from Indiana, who yielded to the gentleman----
    Mr. Hostettler. I take back the balance of my time.
    Chairman Sensenbrenner. The question is on the Baldwin 
amendment. Those in favor will say aye. Opposed, no. The noes 
appear to have it.
    Ms. Baldwin. A rollcall is requested.
    Chairman Sensenbrenner. rollcall will be ordered, The 
question is on agreeing to the Baldwin amendment. Those in 
favor will say aye as your names are called; those opposed, no. 
The Clerk will call the roll.
    The Clerk. My. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Carter?
    Mr. Carter. No.
    The Clerk. Mr. Carter, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mrs. Blackburn?
    [No response.]
    The Clerk. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Ms. Sanchez, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Are there Members in the chamber 
who wish to cast or change their vote? The gentleman from North 
Carolina, Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Tennessee, Mr. 
Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Chairman Sensenbrenner. Are there further Members in the 
chamber who wish to cast or charge their vote? If not, the 
Clerk will report.
    The Clerk. Mr. Chairman, there are 10 ayes and 18 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    Ms. Jackson Lee. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. I have an amendment at the desk.
    Mr. Clerk. Amendment to H.R. 760, offered by Ms. Jackson 
Lee of Texas. Section 1, amend the text to read as follows: 
``This Act may be cited as the `Safe Abortion Procedures Ban 
Act of 2003'.''.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Needless to say, this has been a debate that many of us 
have encountered for a number of sessions. I think it is 
important, Mr. Chairman, to note as well that I have not, in 
the course of the debate, from my colleagues who support this 
legislation and those who are opposed to this legislation, any 
lack of humanity and recognition of the preciousness of the 
opportunity to any family, any couple, any individual, to be 
able to successfully, with love and affection, bring into this 
world an opportunity for a life to thrive in a peaceful 
existence.
    Many of us come to this perspective from our different 
faiths and regional backgrounds. Some have a more unique 
perspective maybe than others. I don't offer these words in 
condemnation. But it is difficult sometimes to be able to 
capture the intensity and the emotion that a woman experiences 
in her attempt to procreate with a loved one.
    There are those of us who could go on record having 
personally experienced the joys and the tragedies of birth. 
There will be many of you who would argue that that's not the 
place, or this is not the place, for such discussion. But 
having lived through this for a number of terms, I am reminded 
of a witness from California who argued or presented to us how 
long she tried to give birth, and how broken they were as a 
couple when they were advised that they had a pregnancy, and in 
order to ensure the life of the mother and the health of the 
mother in particular, and the ability to give birth in the 
future, they had to make a decision between their God, their 
family, and their physician.
    We now come full circle, 2 years, 4 years, 6 years, 8 years 
later, and I've heard the voices describing this procedure, 
well-known to be a very unique procedure and, as well, rarely 
used.
    We have before us legislation that will criminalize the 
physician, legislation that will criminalize the mother, 
legislation that will destroy already a broken family, and 
certainly legislation that many believe will uphold their 
values and their faith.
    But I think the Constitution has spoken, or the Supreme 
Court has spoken, on this issue. Frankly, I believe we should 
label this bill what it is, ``The Partial-Birth Abortion Ban 
Act of 2003,'' to the ``Safe Abortion Procedures Ban Act.'' 
Because my legislation tells the truth, that if you go to a 
physician and not a back ally, if the physician advises you, 
for your health and your life, you are still a criminal in the 
eyes of the law that is now being presented to us today. This 
is clearly a safe abortion procedures ban act of 2003.
    The Supreme Court made it clear, first of all, that there 
is a right to privacy, and Roe v. Wade has made it clear. And 
my good friends and colleagues, based upon their conscience, 
have tried every manner of way, every tactic, to undermine Roe 
v. Wade. Why don't we make and allow these decisions to be 
decisions that are privately made by the woman, her family, her 
God, and the physician? Why don't we trust the same doctors, 
which we held on a pedestal just a few weeks ago, when we were 
rushing out the door for medical malpractice and citing them as 
gods, no matter how many people they injured, why can't we put 
them as gods today, that they make the right decision because 
they've taken an oath to save lives. Why are we putting them in 
this position that we will criminalize these individuals?
    The Court has spoken. They have acknowledged that this is a 
viable procedure.
    [The prepared statement of Ms. Jackson Lee follows:]
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress From the State of Texas
                            i. introduction
    On February 13, 2003, Representative Steve Chabot introduced H.R. 
760, the ``Partial-Birth Abortion Ban Act of 2003.'' On March 26, 2003 
the full Judiciary Committee convened to debate Amendments to H.R. 760. 
The Democratic members of the Committee proposed seven amendments to 
H.R. 760. I proposed an Amendment that read as follows:

        Section 1, amend the text to read as follows: ``This Act may be 
        cited as the `Safe Abortion Procedures Ban Act of 2003'.''.

I proposed this Amendment to change the title of the bill because the 
title as written is medically inaccurate, and is so vague that it 
includes procedures that are beneficial to women's health. The abortion 
procedure the sponsors of the bill inaccurately call ``partial birth 
abortions'' (intact dilation and extraction, or D&X; procedures) are 
safe abortion procedure. In fact, many physicians and federal appellate 
courts have considered this issue carefully and concluded that in some 
cases so-called ``partial birth abortions are the safest available 
procedure.
      ii. physicians and federal courts have concluded d&x; is safe
    The American College of Obstetricians and Gynecologists (ACOG) has 
members who are experts on the subject of women's reproductive health. 
They have extensive experience with all abortion procedures including 
the D&X; procedure. The ACOG has concluded that for some women the D&X; 
procedure is a safer abortion option than other available abortion 
procedures. The ACOG has explained, ``Compared to [non-intact] D&Es;, 
D&X; involves less risk of uterine perforation or cervical laceration 
because it requires the physician to make fewer passes into the uterus 
with sharp instruments.'' ACOG also concluded that D&X; may be the best 
and most appropriate procedure in a particular circumstance to save the 
life or preserve the health of a woman.
    There is also considerable evidence comparing the D&E; and D&X; 
procedures that concludes the D&X; procedure reduces the risk of 
retained fetal tissue, a serious abortion complication that can result 
in the death of the mother. Moreover, the D&X; procedure takes less time 
than other abortion procedures and, therefore, reduces the risk of 
blood loss, trauma, and exposure to anesthesia.
    Federal courts across the country, including the United States 
Supreme Court, have heard testimony and considered evidence on the 
safety of the D&X; procedure. After hearing the evidence, the vast 
majority of federal courts concluded that the D&X; procedure is a safe 
procedure, and for some women in certain circumstances, it is the 
safest procedure. In reviewing the record in Stenberg v. Carhart, a 
case considering the validity of a Nebraska statute nearly identical in 
scope to H.R. 760, the Supreme Court found, ``the record shows that 
significant medical authority supports the proposition that in some 
circumstances, D&X; would be the safest procedure.''
    Every federal appellate court in the country, except one, ruled 
that the D&X; procedure may be safer for some women in certain 
circumstances. Notably, in the Carhart case the Supreme Court overruled 
the one court that found the D&X; procedure unsafe, Nebraska's federal 
court. The prevailing view, among federal judges in courts in Arizona, 
Illinois, New Jersey, Ohio, Rhode Island, Virginia, and Wisconsin is 
that the D&X; procedure is safer for women in some circumstances. For 
example, a Federal District Court in Ohio considered evidence for and 
against the D&X; procedure and stated, ``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, because it is 
less invasive and does not pose the same degree of risk of uterine and 
cervical lacerations. . .''
  iii. the ``findings'' of h.r. 760 grossly mischaracterize the facts
    The Republican's ``findings'' that the D&X; procedure is unsafe are 
baseless. The Supreme Court heard and rejected the identical 
``findings'' in the Carhart case. The Court concluded that D&X; is a 
safe procedure. The Court also found the procedure does not create 
risks of cervical incompetence and lacerations, risks from blind 
instrumentation, or risks of conversion of the fetus to a breech 
position. H.R. 760 also makes the baseless claim that the dilation 
required in a D&X; abortion increases a woman's risk of cervical 
incompetence. On the contrary the ACOG concluded, ``many D&E; procedures 
involve similar amounts of dilation--sometimes over a several-day 
period.'' Plus, according to ACOG, the dilation in D&X; is less than 
that involved in childbirth.
      iv. h.r. 760 bans several abortion procedures, not just one
    H.R. 760 is flawed not only because it inaccurately labels the D&X; 
procedure unsafe. It is also flawed because the non-medical term 
``partial birth abortion'' is imprecise. The term partial birth 
abortion does not apply to a single abortion procedure, but to multiple 
abortion procedures. The bill's prohibitions, as presently written, 
would ban procedures performed pre-viability and post-viability. The 
drafters of H.R. 706 deliberately omitted any mention that the ban 
applies only to post-viability abortions, and deliberately omitted any 
mention of a specific, medically defined, procedure. This bill is an 
obvious attempt by anti-choice advocates to advance their efforts to 
ban all abortions.
            v. h.r. 760 contradicts supreme court precedent
    The Court in Stenberg concluded, ``a statute that altogether 
forbids D&X; creates a significant health risk.'' In Stenberg, the Court 
reaffirmed that women's health must always be protected. The Court said 
if a procedure may be safer for some women in certain circumstances, 
then it cannot be banned. The Supreme Court concluded in several cases 
that a woman's health must be the physicians primary concern and that a 
physician must be given the discretion to determine the best course of 
treatment to protect women's lives and health. H.R. 760 ignores all of 
the Supreme Court's mandates. It flatly bans the D&X; procedure and well 
as other procedures. It bans procedures that may be safer for some 
women, and it denies many physicians the discretion to determine the 
best course of treatment.
                  vi. this amendment is not frivolous
    The proponents of H.R. 760 have argued that my Amendment to change 
the title of the bill from ``The Partial Birth Abortion Ban Act of 
2003'' to the ``Safe Abortion Procedures Ban Act of 2003'' is 
frivolous. I strongly believe that any debate about the issue of 
abortion is a debate about life and death. Likewise, any debate about 
abortion inherently concerns women's reproductive health. The issues of 
women's reproductive health, and life and death, are never frivolous. 
H.R. 760 bans safe abortion procedures, and jeopardizes women's health. 
The title of the bill should reflect that unfortunate reality.

    Chairman Sensenbrenner. The gentlewoman's time has expired. 
The gentleman from Ohio, Mr. Chabot.
    Mr. Jackson Lee. I would ask my colleagues to support the 
amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Mr. Chairman, this is truly a frivolous 
amendment and I would urge my colleagues to vote against it.
    I yield back the balance of my time.
    Mr. Nadler. Mr. Chairman, Mr. Chairman----
    Chairman Sensenbrenner. The vote is on the Jackson Lee 
amendment. Those in favor----
    Mr. Nadler. Mr. Chairman, I was requesting----
    Chairman Sensenbrenner. Those in favor will say aye, 
opposed will say no. The noes appear to have it. The noes have 
it.
    The rollcall will be ordered. Those in favor of the Jackson 
Lee amendment will, as your names are called, answer aye. Those 
opposed, no. The Clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Carter?
    Mr. Carter. No.
    The Clerk. Mr. Carter, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mrs. Blackburn?
    Mrs. Blackburn. No.
    The Clerk. Mrs. Blackburn, no. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler.
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change their vote? The gentleman from Tennessee, Mr. 
Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. Any Members who wish to cast or 
change their vote? If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 8 ayes and 19 noes.
    Chairman Sensenbrenner. Then the amendment is not agreed 
to.
    Are there further amendments?
    Ms. Baldwin. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The gentlewoman from Wisconsin. The 
Clerk will report the amendment.
    The Clerk. Amendment to H.R. 760 offered by Ms. Baldwin. On 
page 15, after line 5----
    Ms. Baldwin. I ask that the amendment be considered as 
read.
    Chairman Sensenbrenner. Without objection, so ordered. The 
gentlewoman is recognized for 5 minutes.
    [The amendment follows:]
    
    
    Ms. Baldwin. Thank you, Mr. Chairman.
    Since the Committee earlier choose not to strike the 
inaccurate findings in this bill, maybe we can correct the 
record by adding in some accurate findings. That's what this 
amendment would do. It would add to the findings the 
conclusions of the United States Supreme Court in the Stenberg 
case, that the D&X; procedure in safe and is often most 
appropriate as a procedure in a particular circumstance to save 
the life or preserve the health of a woman.
    We discussed earlier but it bears repeating, that the 
majority of medical evidence indicates that the intact D&E; or 
D&X; procedures are safe abortion procedures and may be the 
safest option for some women. Under some circumstances----
    Chairman Sensenbrenner. The gentlewoman will suspend. The 
Committee is recessed until one o'clock.
    [Recess.]
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    When the Committee recessed for the votes and for lunch, 
pending was an amendment that was offered by the gentlewoman 
from Wisconsin, Ms. Baldwin, to the bill H.R. 760.
    The chair recognizes the gentlewoman from Wisconsin for 5 
minutes.
    Ms. Baldwin. Thank you, Mr. Chairman.
    Since the Committee earlier this morning chose not to 
strike inaccurate findings contained in this bill, we certainly 
can correct this record by adding some findings that are 
accurate. That's what this amendment would do. I would add to 
the findings the conclusions of the United States Supreme Court 
in the Stenberg case, that the D&X; procedure is safe and is 
often the most appropriate procedure in a particular 
circumstance to save the life or to preserve the health of a 
woman.
    We discussed earlier, but it bears repeating, that the 
majority of medical evidence indicates that the intact D&E; or 
D&X; procedures are safe abortion procedures that may be the 
safest option for some women under some circumstances.
    Mr. Chairman, the brief of the American College of 
Obstetricians and Gynecologists in the Stenberg case provides 
significant evidence of the safety and need for these 
procedures, and I ask unanimous consent to enter the American 
College of Obstetricians and Gynecologists brief into the 
record.
    Chairman Sensenbrenner. Without objection.
    [The information follows:]
    
    
    Ms. Baldwin. Thank you, Mr. Chairman.
    Of those courts that heard expert evidence on the safety of 
these procedures, the Supreme Court and all but one Federal 
trial court found that this procedure was necessary under some 
circumstances to save the life and preserve the health of a 
woman.
    The California Medical Association has said that it 
believes that the intact D&E; procedure may provide substantial 
medical benefits, and that procedure is safer in several 
respects than the alternatives. Physicians for Reproductive 
Choice and Health has stated that banning D&X; will force 
competent physicians to choose riskier medical options that 
increase danger to patients.
    Mr. Chairman, last year during the markup of this 
legislation, I brought with me all the briefs filed in the 
Stenberg case, so that they could be included in the 
Committee's report. The purpose of that act was to demonstrate 
that the evidence in these briefs far outweighs the lack of 
foundations for the bill's findings. These many briefs provide 
real and significant evidence about the safety of these 
procedures.
    I will not ask to enter them into the record today. I would 
like to read the list of briefs, and I encourage American 
citizens who are interested in some factual findings to read 
them.
    First and foremost, I recommend the excellent brief filed 
by the American College of Obstetricians and Gynecologists. 
Other briefs include the Respondent Leroy Carhart, M.D.; brief 
of the United States; brief of NARAL; National Women's Law 
Center; People for the American Way; and the National 
Partnership for Women and Families. The brief of the Religious 
Coalition for Reproductive Choice, and 93 other religious 
organizations. The brief of the Women's Law Project and 74 
other organizations. The brief of 124 Members of Congress; 
brief of physicians and clinics providing services in several 
States, represented by the American Civil Liberties Union; the 
brief of Planned Parenthood of Wisconsin, and the brief of the 
States of New York, Maine, Oregon and Vermont.
    Mr. Chairman, the Supreme Court has found that substantial 
medical authority supports the conclusion that a statute that 
bans the D&X; procedure creates significant health risk. The 
Supreme Court has recognized the conclusions of the American 
College of Obstetricians and Gynecologists, that this procedure 
is safe and may be appropriate in particular circumstances. 
These new findings are accurate, they are truthful, and they 
are critically important and we should include them in this 
legislation.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Ohio.
    Mr. Chabot. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you.
    This amendment should be rejected because it attempts to 
bind Congress to the findings of fact reached in the Stenberg 
case. 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, except 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 those 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.
    Thus, H.R. 760 includes extensive findings on the lack of 
evidence to support the medical efficacy or safety of the 
procedure that is in question here today, which is, of course, 
partial-birth abortion, as well as the potential dangers posed 
by this particular procedure.
    The concept of Supreme Court deference to Congress' factual 
findings is not a new legal theory. The Court has historically 
been highly deferential to Congress' factual determinations, 
regardless of the legal authority upon which Congress has 
sought to legislate.
    As Justice Rehnquist has stated, ``The fact that the Court 
is not exercising a primary judgement but sitting in judgement 
upon those who also have taken the oath to observe the 
Constitution, and who have the responsibility for carrying on 
Government, compels the Court to be particularly careful not to 
substitute our judgement--'' meaning the Court's judgement ``--
of what is desirable for that of Congress, or our own 
evaluation of evidence for a reasonable evaluation by the 
Legislative branch.'' In other words, us.
    Although the Supreme Court in Stenberg was obligated to 
accept the District Court's findings regarding the relative 
health and safety benefits of a partial-birth abortion due to 
the applicable standard of appellate review, Congress possesses 
an independent constitutional authority upon which it may reach 
findings of fact that contradict those of the trial court. 
Under well-settled Supreme Court jurisprudence, these 
congressional findings will be entitled to great deference by 
the Federal Judiciary in ruling on the constitutionality of a 
partial-birth abortion ban.
    Thus, the first section of the Partial-Birth Abortion Ban 
Act of 2003 contains Congress' factual findings, that based 
upon extensive medical evidence compiled during congressional 
hearings, a partial-birth abortion is never necessary to 
preserve the health of a woman.
    For these reasons, and a number of others, I oppose the 
gentlelady from Wisconsin's amendment and I ask my colleagues 
to do the same.
    Ms. Jackson Lee. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from Texas.
    Ms. Jackson Lee. Mr. Chairman, I rise to strike the last 
word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    I rise to support the distinguished gentlelady's amendment. 
I do want to express my appreciation for the tone that 
amendments have been offered.
    I want to draw my colleagues' attention that some years ago 
in this Committee there was legislation dealing with the Child 
Predators Act, and one of the successful amendments that was 
offered by myself was to remove the term ``predator'' from the 
title of the bill to not compare children to predators. That 
was a successful turning of the tone and the thrust of that 
legislation.
    I think it is important, when we're debating such important 
issues, that we maintain the same civility that amendments that 
discuss the opposition of Members to legislation before us, 
that may mischaracterize positions of many constituents, but 
more importantly, mischaracterize the role of Congress and as 
well the rule we have juxtaposed the Supreme Court are not to 
be labeled as frivolous. So I think it's important that we're 
having this markup, and we're here listening to a number of 
amendments.
    What the gentlelady's amendment does is clearly speak to 
Stenberg v. Carhart. The drafters of H.R. 760 are clearly wrong 
in asserting that they can overrule the Carhart decision 
through legislation. Prior attempts by Congress to undo 
disfavored Supreme Court rulings, such as Congress' attempt to 
legislatively overturn Miranda and to legislatively overturn 
Employment Division, Department of Human Resources of Oregon v. 
Smith, have been soundly rejected by the Supreme Court. Given 
the utter absence of legal support for this bill, it must be 
seen as well as questionable as to whether or not the 
legislation can overturn the Supreme Court's position, both in 
Roe v. Wade and the Stenberg--excuse me--case.
    So I believe the gentlelady is simply trying to restate 
what--I hesitate to say what is obvious, but certainly also to 
protect a legitimate medical procedure, and that is the D&X.; 
Clearly, as she has indicated in her amendment, the Supreme 
Court recognized that--all but one Federal trial court--to hear 
expert evidence on the safety of the D&X; procedure found that 
it may be the best or the most appropriate procedures to 
preserve a woman's health. So I think that the amendment 
clearly would enhance this legislation by restating what the 
Supreme Court has found and, as well, what the Supreme Court 
has stated in this case, that is still law. Stenberg is still 
law.
    I would ask my colleagues that, if we are to view the role 
that we play in this room to be a role that allows us to have 
some consensus, even as we disagree, that the gentlelady's 
amendment is appropriate and that in the spirit of which we are 
presenting this, that no amendment be characterized as being 
frivolous because we're all here trying to seriously represent 
our constituents as well as our interpretation of the laws that 
are presented before this particular body. I would ask my 
colleagues to support the amendment.
    Chairman Sensenbrenner. The gentleman from Iowa.
    Mr. King. Thank you, Mr. Chairman. I may be out of order, 
but I would point out there were a number of briefs that were 
submitted in opposition to this procedure, and I would ask that 
the amicus briefs submitted by a number of medical doctors 
opposed to this procedure be admitted as well.
    Chairman Sensenbrenner. If the gentleman from Iowa would 
yield, the gentlewoman from Wisconsin did not ask that the 
briefs she referred to be reprinted in the record at public 
expense. She listed names of organizations that submitted 
amicus briefs. In trying to--Are you asking for one or are you 
asking for more than one?
    Mr. King. I would ask simply for an equal number, should 
they be admitted into the record.
    Chairman Sensenbrenner. Well, she--did the gentlewoman from 
Wisconsin get one brief admitted, and you're asking for one?
    Mr. King. Yes.
    Chairman Sensenbrenner. Without objection, it's a deal.
    Mr. King. Thank you, Mr. Chairman.
    [The information follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, it's one thing to reach findings, 
but it's another thing to just make up findings. The record 
reflects that, as these findings say, that all but one court to 
hear this case ruled on the safety, that the D&X; procedure may 
be the best and most appropriate procedure to preserve a 
woman's health.
    The record from the hearing yesterday says even that one 
was subsequently overturned by an appellate court. We have the 
record from ACOG, the American College of Obstetricians and 
Gynecologists; we have the language from the case which says, 
where substantial medical authorities support the proposition 
that banning the particular abortion procedure ``could'' 
endanger a woman's health--I mean, these are facts. As the 
gentlelady from Wisconsin said, these are facts. I would hope 
that we would allow the introduction of these facts into the 
bill, rather than the speculation that's in there now.
    I yield back.
    Chairman Sensenbrenner. The question is on the Baldwin 
amendment. Those in favor will say aye. Opposed, no. The noes 
appear to have it.
    A recorded vote is ordered. Those in favor of the Baldwin 
amendment will, as your name is called, answer aye; those 
opposed, no. The Clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    [No response.]
    The Clerk. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Carter?
    Mr. Carter. No.
    The Clerk. Mr. Carter, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mrs. Blackburn?
    Mrs. Blackburn. No.
    The Clerk. Mrs. Blackburn, no. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change their votes? The gentleman from North Carolina. 
Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Tennessee, Mr. 
Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Chairman Sensenbrenner. Are there further Members who wish 
to cast or change their vote? If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 10 ayes and 16 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments? If there are no further 
amendments, the chair notes the presence of a reporting quorum. 
The question occurs on the motion to report the bill favorably. 
Those in favor will say aye. Opposed, no. The ayes appear to 
have it.
    A rollcall will be ordered. The question is on the motion 
to report the bill favorably. Those in favor will, as your name 
is called, answer aye, those opposed, no, and the Clerk will 
call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Carter?
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
    [No response.]
    The Clerk. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no. Ms. Baldwin?
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin, no. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members in the chamber wish to cast 
or change their vote? The gentleman from Alabama, Mr. Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Chairman Sensenbrenner. The gentlewoman from Tennessee, 
Mrs. Blackburn.
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Waters.
    Ms. Waters. No.
    The Clerk. Ms. Waters, no.
    Chairman Sensenbrenner. Are there further Members in the 
chamber who wish to cast or change their votes? If not, the 
Clerk will report.
    The Clerk. Mr. Chairman, there are 19 ayes and 11 noes.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to.
    Without objection, the Chairman is authorized to move to go 
to conference pursuant to House Rules. Without objection, the 
staff is directed to make any technical and conforming changes, 
and all Members will be given 2 days as provided by House Rules 
in which to submit additional dissenting supplemental or 
minority views.
    The Chair thanks the Members for their diligence today. The 
business of the Committee having been concluded, the Committee 
stands adjourned.
    [Whereupon, at 1:18 p.m., the Committee adjourned.]
                            Dissenting Views

    H.R. 760, the ``Partial-Birth Abortion Ban Act of 2003,'' 
was introduced in response to the Supreme Court's ruling in 
Stenberg v. Carhart,\1\ in which the Supreme Court held 
unconstitutional a Nebraska statute banning so-called 
``partial-birth'' abortions. We oppose H.R. 760 because it 
flies in the face of Stenberg with the same unconstitutional 
flaws for which the Court invalidated the Nebraska statute; 
because the bill is dangerous to women; and because private 
medical decisions should be made by women and their families, 
in consultation with their doctors--not politicians.
---------------------------------------------------------------------------
    \1\ 530 U.S. 914 (2000).
---------------------------------------------------------------------------
    Sixteen of the nineteen pages of H.R. 760 contain 
``findings'' on matters the Court reviewed in Stenberg.\2\ In 
its three pages of operative legislative language, the bill 
makes it illegal for a physician knowingly to perform a so-
called ``partial-birth'' abortion unless it is necessary to 
save the life of the mother whose life is endangered by a 
physical disorder, physical illness, or physical injury.\3\ A 
physician who violates the law is subject to a fine and up to 2 
years imprisonment.\4\
---------------------------------------------------------------------------
    \2\ The ``findings'' in the bill include misstatements of both the 
facts and the law, including, among others: the partial birth abortion 
procedure is ``never medically necessary,'' Sec. 2, para.1; the 
procedure is ``outside of the standard of medical care,'' Sec. 2, 
para.5; the Supreme Court was ``required to accept the very 
questionable findings issued by the district court,'' Sec. 2, para.7; 
``Partial-birth abortion poses serious risks to the health of a woman 
undergoing the procedure,'' Sec. 2, para.14(A); and ``There is no 
credible medical evidence that partial-birth abortions are safe or are 
safer than other abortion procedures,'' Sec. 2, para.14(B).
    \3\ The term ``partial-birth abortion'' is not a medical term. The 
bill defines it as,

---------------------------------------------------------------------------
      ``an abortion in which--

      (A) 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 past the 
      naval 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.''

H.R. 760, Sec. 3, para.(b).
---------------------------------------------------------------------------
    \4\ H.R. 760, Sec. 3, para.(a).
---------------------------------------------------------------------------
    Rather than complying with the constitutional requirements 
in Stenberg, the drafters of H.R. 760 have created a propaganda 
piece intended to demonize abortion and abortion providers. As 
a result, the bill is an unconstitutional attempt to regulate 
abortion, and is detrimental to women's health.

  H.R. 760 IS UNCONSTITUTIONAL FOR THE SAME REASONS THE SUPREME COURT 
  STRUCK DOWN A SIMILAR ``PARTIAL-BIRTH'' ABORTION BAN IN STENBERG V. 
                                CARHART

    The caselaw on abortion is clear. In Planned Parenthood v. 
Casey,\5\ the Court articulated the three principles that 
govern abortion jurisprudence: (1) a woman has the right to 
choose to terminate her pregnancy prior to ``viability; \6\'' 
(2) a law designed to further the State's interest in fetal 
life, but which imposes an ``undue burden'' on the woman's 
decision before fetal viability is unconstitutional; \7\ and 
(3) after viability, a State may regulate or proscribe abortion 
except ``where it is necessary, in appropriate medical 
judgment, for the preservation of the life or health of the 
mother.'' \8\
---------------------------------------------------------------------------
    \5\ 505 U.S. 833 (1992).
    \6\ Stenberg v. Carhart 530 U.S. at 921. ``Viability'' of the fetus 
differs from woman to woman. A woman's doctor determines the point of 
viability, but it typically occurs between 24 to 28 weeks after 
gestation.
    \7\ Id. An `` `undue burden is . . . shorthand for the conclusion 
that a state regulation has the purpose or effect of placing a 
substantial obstacle in the path of a woman seeking an abortion of a 
nonviable fetus.' '' Id. (quoting Casey, 505 U.S. at 877).
    \8\ Id. (quoting Casey, 505 U.S. at 879). Indeed, the conservative 
jurist, Richard Posner, has suggested that partial-birth abortion bans 
such as H.R. 760 do not even meet the extremely deferential standard of 
having a ``rational relation to a legitimate state interest'' because 
they do not preserve fetal life, but rather, simply shift the method of 
abortion to a more dangerous procedure. Planned Parenthood of Wisconsin 
v. Doyle, 162 F.3d 463, 470-71 (7th Cir. 1998) (``The singling out of 
the D & X procedure for anathematization seems arbitrary to the point 
of irrationality. Annexing the penalty of life imprisonment to a 
medical procedure that may be the safest alternative for women who have 
chosen abortion because of the risk that childbirth would pose to their 
health adds a note of the macabre to the Wisconsin statute, especially 
when we consider that physicians can insulate themselves from all legal 
risk by killing the fetus in utero.'' Id. at 471.) See also Stenberg, 
530 U.S. at 946, 951 (Stevens, J. and Ginsberg, J., concurring).
---------------------------------------------------------------------------
    In 2000, the Supreme Court applied these principles to a 
Nebraska ban on partial-birth abortions, and found the statute 
unconstitutional on two grounds: it did not include an 
exception to protect the health of the woman, and it posed an 
undue burden on the right to obtain an abortion.\9\ Because 
H.R. 760 suffers from these same defects, it is likewise 
unconstitutional.
---------------------------------------------------------------------------
    \9\ Stenberg, 530 U.S. at 930.
---------------------------------------------------------------------------
H.R. 760 Unconstitutionally Omits an Exception to Protect Maternal 
        Health
    Both pre- and post-viability restrictions on abortion must 
contain an exception ``where it is necessary, in appropriate 
medical judgment, for the preservation of the life or health of 
the mother.\10\'' Furthermore, such an exception must not only 
protect women from health risks created by the pregnancy, 
itself, but also from health risks caused by a regulation that 
forces women to choose a less medically appropriate abortion 
procedure.\11\
---------------------------------------------------------------------------
    \10\ Stenberg, 530 U.S. at 930 (quoting Roe, at 164-64 (emphasis 
omitted)) (``Since the law requires a health exception in order to 
validate even a postviability abortion regulation, it at a minimum 
requires the same in respect to previability regulation.'').
    \11\ Id. at 934-38 (comparing the relative safety of different 
abortion procedures and concluding that ``a statute that altogether 
forbids D & X creates a significant health risk'').
---------------------------------------------------------------------------
    Even the Ashcroft Department of Justice recognizes that, in 
order for any abortion regulation to be constitutional, it must 
contain an exception to protect the woman's life and health. 
The Department of Justice has stated, ``After fetal viability, 
States may ban abortion altogether, so long as they allow 
abortions necessary to safeguard the woman's life or health.'' 
\12\
---------------------------------------------------------------------------
    \12\ Brief for the United States of America as Amicus Curiae 
Supporting Reversal at 7, Women's Medical Professional Corp. v. Taft, 
(6th Cir.) (No. 01-4124) (emphasis added).
---------------------------------------------------------------------------
    There is no question that H.R. 760 does not contain an 
exception to protect maternal health. For this reason, alone, 
the bill is unconstitutional.\13\
---------------------------------------------------------------------------
    \13\ Representatives Scott, Baldwin, and Jackson Lee offered an 
amendment that would have added a health exception, in conformance with 
Stenberg, which was defeated in a party-line vote.
---------------------------------------------------------------------------
            The Supreme Court Will Not Defer to Erroneous Factual and 
                    Legal Conclusions Masked as Congressional 
                    ``Findings''
    The drafters of H.R. 760 attempt to justify the lack of a 
health exception in the bill's ``findings,'' which summarily 
assert that the banned procedure is ``never medically necessary 
to preserve the health of a woman.\14\'' They argue that, 
because the Stenberg decision was based on ``very questionable 
findings,'' \15\ Congress is better equipped to assess the 
evidence after holding ``extensive'' hearings on the 
subject.\16\ Claiming that congressional findings demonstrate 
that a health exception is unnecessary, they argue that the 
Supreme Court is bound to accord ``great deference'' to these 
findings.
---------------------------------------------------------------------------
    \14\ H.R. 760, Sec. 2, para.14(E). We wonder: if the procedure is 
never necessary to protect the woman's health, why the proponents of 
the bill admit that the procedure may be necessary to protect a 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.'' Sec. 3, para.(d)(1). 
Are not these situations in which the mother's health is also at risk?
    \15\ H.R. 760 Sec. 2, para.7. Far from being ``questionable,'' the 
trial court's findings in Stenberg were based on consideration of 
evidence from experts on both sides of the issue, including evidence 
from the congressional hearings themselves. Stenberg, 530 U.S. at 929, 
935. Nor was there a ``dearth of evidence'' in the trial court 
supporting the findings. See Stenberg v. Carhart, 11 F. Supp. 2d 1099, 
1110-18 (D. Neb. 1998). Additionally, in reviewing the evidence, the 
Supreme Court acknowledged many of the points raised by the sponsors, 
such as the ``division of medical opinion,'' the risks of different 
abortion procedures, and the lack of medical studies establishing the 
safety of ``partial-birth abortion/D&X.;'' Stenberg, 530 U.S. at 926, 
937. After reviewing all this evidence the Court found: ``Where a 
significant body of medical opinion believes a procedure may bring with 
it greater safety for some patients and explains the medical reasons 
supporting that view, we cannot say that the presence of a different 
view by itself proves the contrary. Rather, the uncertainty means a 
significant likelihood that those who believe that D&X; is a safer 
abortion method in certain circumstances may turn out to be right.'' 
530 U.S. at 937.
    \16\ Id. at Sec. 2, para.para.9, 10, 11, 12, citing Katzenbach v. 
Morgan, 384 U.S. 641 (1966), Turner Broadcasting System Inc. v. F.C.C., 
512 U.S. 622 (1994) (``Turner I''), Turner Broadcasting System Inc. v. 
F.C.C., 520 U.S. 180 (1997) (``Turner II''), and City of Rome, Georgia 
v. United States, 472 F. Supp. 221 (D. Colo. 1979), aff'd, 446 U.S. 156 
(1980).
---------------------------------------------------------------------------
    The mere statement of ``findings'' does nothing to 
rehabilitate the bill's unconstitutionality. There have been 
several instances in the past in which congressional attempts 
to overturn Supreme Court precedents have failed. For example, 
Congress passed the Religious Freedom Restoration Act 
(``RFRA'') in response to an earlier Supreme Court 
decision.\17\ As in this case, Congress held separate hearings 
to assess the issues and made independent findings, prior to 
enacting the law. In striking down RFRA, the Supreme Court held 
that Congress ``has been given the power `to enforce,' not the 
power to determine what constitutes a constitutional 
violation.'' \18\ The Court further held that ``[t]he power to 
interpret the Constitution in a case or controversy remains in 
the Judiciary'' \19\ and ``RFRA contradicts vital principles 
necessary to maintain separation of powers and the Federal 
balance.'' \20\
---------------------------------------------------------------------------
    \17\ Employment Div., Dept. of Human Resources of Oregon v. Smith, 
494 U.S. 872 (1990) (holding that neutral, generally applicable laws 
may be applied to religious practices even when not supported by a 
compelling state interest).
    \18\ City of Boerne v. Flores, 521 U.S. 507, 519 (1997).
    \19\ Id. at 524.
    \20\ Id. at 536. Similarly, Congress attempted to overturn the 
Supreme Court's Miranda requirements by enacting a new 
``voluntariness'' standard in their place. In Dickerson v. United 
States, 530 U.S. 428, 435-36 (2000), the Supreme Court reviewed the 
law, and in striking it down held that ``Miranda, being a 
constitutional decision of this Court, may not be in effect overruled 
by an Act of Congress,'' id. at 432, and ``Congress may not 
legislatively supersede our decisions interpreting and applying the 
Constitution. '' Id. at 437.
---------------------------------------------------------------------------
    With H.R. 760, the sponsors are attempting to overturn 
Supreme Court constitutional precedent by enacting a law that 
fails to adhere to the precedent. This attempt will fail and 
the bill will be declared unconstitutional.
            The Bill Threatens the Separation of Powers
    The bill also presents a threat to our constitutional 
system of government and separation of powers. Where 
constitutional rights are at stake, the Judiciary conducts its 
own independent review of the facts.\21\ Even where 
constitutional rights are not at stake, the Court has recently 
viewed with skepticism Congressional findings purportedly 
supporting its exercise of powers under Article I or Section 5 
of the Fourteenth Amendment.\22\
---------------------------------------------------------------------------
    \21\ See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 
829, 843-44 (1978).
    \22\ See, e.g., United States v. Morrison, 529 U.S. 598, 614 
(2000).
---------------------------------------------------------------------------
    Here, the sponsors assert that factual findings made by the 
Judiciary can be, in essence, set aside by contrary 
Congressional findings. Under this novel regime, Congress could 
have overturned Brown v. Board of Education by ``finding'' that 
racially separate schools were, in fact ``equal,'' or could, in 
line with this bill's approach, ban all abortions by 
``finding'' that all procedures were unsafe. Ultimately, 
Congressional findings that seek to defy the Supreme Court and 
the function of the Federal courts as triers of facts will not 
only threaten the independence of the Judiciary, but undermine 
the value of Congressional findings in other contexts where 
such findings may, unlike in this bill, actually be a 
legitimate and appropriate exercise of Congressional power.
H.R. 760 Is Overbroad and Places an Undue Burden on a Woman's Right to 
        Obtain an Abortion
    Like the law struck down by the Stenberg court, H.R. 760 is 
also overbroad and places an undue burden on a woman's 
constitutional right to choose to have an abortion. The Supreme 
Court has made clear that the State has a different interest in 
regulating abortion prior to- and post-viability. Before 
viability, the woman has a right to choose to terminate her 
pregnancy, and a law must not impose an ``undue burden'' on 
this decision.\23\
---------------------------------------------------------------------------
    \23\ Stenberg, 530 U.S. at 921 (citing Casey, 505 U.S. at 870, 
877).
---------------------------------------------------------------------------
    H.R. 760 is not limited to post-viability abortions.\24\ 
Nor is it limited to one clearly-defined ``late-term'' abortion 
procedure. To the contrary, the bill's definition of ``partial-
birth abortion'' is, vague,\25\ overbroad, and covers the most 
common type of 2nd-trimester abortion procedure.\26\ In fact, 
the term ``partial-birth abortion'' is not a medical term, but 
a political one intended to inflame public opinion and shift 
the focus from the fact that private medical decisions should 
be made by women and their families, in consultation with their 
doctors--not politicians.
---------------------------------------------------------------------------
    \24\ During the debate of an identical bill in the 107th Congress, 
the bill's sponsor, Rep. Chabot, admitted this at the Judiciary 
Committee markup when he spoke regarding an amendment offered by Rep. 
Scott, which would have banned abortions on viable fetuses, with 
certain exceptions. Representative Chabot stated,

      [The amendment] offers protection only to viable infants, 
      and the majority of partial-birth abortions are performed 
      on babies during their fifth and sixth months of pregnancy. 
      Most of the infants aborted during this period, obviously, 
      are not viable. The substitute would thus have no impact on 
      the vast majority of partial-birth abortions, and that's 
---------------------------------------------------------------------------
      the whole purpose of this legislation.

Statement of Rep. Chabot, Markup of H.R. 760, ``The Partial-Birth 
Abortion Ban Act of 2002,'' Committee on the Judiciary, 107th Cong., 
July 17, 2002, at 148-149.
---------------------------------------------------------------------------
    \25\ Indeed, H.R. 760 does not even consistently describe the same 
technique within the findings. Compare H.R. 760, Sec. 2, para.1 
(partial-birth abortion involves delivery until ``only the head remains 
inside the womb''); Sec. 2, para.14(A) (partial-birth abortion involves 
conversion to a footling breech presentation); Sec. 2, para.14(J) 
(partial-birth abortion involves delivery of ``all but the head, out of 
the womb'').
    \26\ Approximately 10% of all abortions are performed during the 
second trimester of pregnancy (12 to 24 weeks). The most commonly used 
procedure during this period is called ``dilation and evacuation'' or 
``D & E.'' That procedure accounts for about 95% of all abortions 
performed from 12 to 20 weeks of gestational age. Stenberg, 530 U.S. at 
924. The drafters of the bill could have chosen to use more specific 
language and exclude the D & E method of abortion, but chose not to. 
See id. at 950 (O'Connor, J., concurring) (recognizing that ``unlike 
Nebraska, some other States have enacted statutes more narrowly 
tailored to proscribing the D & X [``dilation and extraction''] 
procedure alone. Some of those statutes have done so by specifically 
excluding from their coverage the most common methods of abortion, such 
as the D & E and vacuum aspiration procedures,'' and citing the Kansas, 
Utah, and Montana statutes approvingly).
---------------------------------------------------------------------------
    As Simon Heller testified before the Subcommittee on the 
Constitution,

        [J]ust like the language of Nebraska's statute, [H.R. 
        760] could still prohibit many pre-viability abortions 
        using the D&E; [dilation and evacuation] method, of 
        which the specific technique described the first 
        paragraph of the bill's findings is simply one type. In 
        fact, the prohibitory language of the bill is quite 
        plainly broader than the abortion technique described 
        in paragraph one of the bill's ``findings.'' Compare 
        H.R. 760 Sec. 2, para.1 (describing breech presentation 
        technique) with Sec. 3, ch. 74 Sec. 1531(b)(1)(A) 
        (prohibiting both breech and cephalic presentation 
        techniques). The bill perpetuates the problem of 
        Nebraska's law: it uses language which sweeps more 
        broadly than the single technique described in the 
        ``findings'' by the sponsors.\27\
---------------------------------------------------------------------------
    \27\ Testimony of Simon Heller, Esq. before the Committee on the 
Judiciary, Subcommittee on the Constitution, Hearing on H.R. 760, March 
25, 2003.

    Because the bill is not limited to a single, late-term 
abortion procedure but, instead, also prohibits the most common 
2nd-trimester abortion method, the bill imposes an undue burden 
on a woman's right to obtain an abortion and is 
unconstitutional for this reason, as well.

              H.R. 760 ENDANGERS WOMEN'S HEALTH BY BANNING
                        SAFE ABORTION PROCEDURES

    Even if H.R. 760 covered only a single, late-term abortion 
procedure (known medically as ``intact D & E,'' ``dilation and 
extraction,'' or ``D & X'')--which it does not--the bill would 
still endanger women's health. A threat to women's health 
always results when a safe medical procedure is removed from 
the physician's array of options, as there will always be some 
woman for whom the banned procedure would be the safest.
    Contrary to the contentions in the findings of H.R. 760, 
the conclusion that D & X is a safe procedure is not the view 
of a single trial judge to whose factual findings the Supreme 
Court deferred. Rather, after hearing extensive expert medical 
testimony, every court in the country to reach the question but 
one has agreed that D & X is a safe procedure that may well be 
the safest for some women in certain circumstances.\28\
---------------------------------------------------------------------------
    \28\ See, e.g., Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 
463, 467-468 (7th Cir. 1998) (``The D & X procedure is a variant of D & 
E designed to avoid both labor and the occasional failures of induction 
as a method of aborting the fetus, while also avoiding the potential 
complications of a D & E. For some women, it may be the safest 
procedure. So at least the plaintiff physicians believe, and these 
beliefs are detailed in affidavits submitted in the district court. 
This is also the opinion of the most reputable medical authorities in 
the United States to have addressed the issue: the American Medical 
Association and the American College of Obstetricians and 
Gynecologists.'' (emphasis added)); Women's Med. Prof'l Corp. v. Taft, 
162 F. Supp. 2d 929, 942 (S.D. Ohio 2001) (``The safety advantages of 
the D & X over other methods of abortion are both intuitive and well 
supported by the record.''); Rhode Island Med. Soc'y v. Whitehouse, 66 
F. Supp. 2d 288, 314 (D.R.I. 1999), aff'd, 239 F.3d 104 (1st Cir. 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.''); Richmond Medical Center for 
Women v. Gilmore, 55 F. Supp. 2d 441, 491 (E.D. Va. 1999) (``When the 
relative safety of the D&E; is compared to the D&X;, there is evidence 
that the D&X; (which is but a type of D&E; . . .) has many advantages 
from a safety perspective. . . . For some women, then, the D&X; may be 
the safest procedure.'' (citations to the trial record omitted)); 
Planned Parenthood of Central New Jersey v. Verneiro, 41 F. Supp. 2d 
478, 484-85 (D.N.J. 1998) (``The intact dilatation and extraction, or 
intact D&X;, has not been the subject of clinical trials or peer-
reviewed studies and, as a result, there are no valid statistics on its 
safety. As its `elements are part of established obstetric techniques,' 
the procedure may be presumed to pose similar risks of cervical 
laceration and uterine perforation. However, because the procedure 
requires less instrumentation, it may pose a lesser risk. Moreover, the 
intact D&X; may be particularly helpful where an intact fetus is 
desirable for diagnostic purposes.'' (citation to ACOG Statement on 
Intact D&X; omitted)); Richmond Med. Ctr. for Women v. Gilmore, 11 F. 
Supp. 2d 795, 827 n.40 (E.D. Va. 1998), aff'd, 224 F.3d 337 (4th Cir. 
2000); Hope Clinic v. Ryan, 995 F. Supp. 847, 852 (N.D. Ill. 1998) 
(Korcoras, J., appointed by President Carter) (``[T]he record here 
contains significant evidence that the D&X; procedure is often far safer 
than other D&E; procedures.''); ``[D&X;] 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. [It] may also result in less blood take less operating 
time.''); Planned Parenthood v. Woods, 982 F. Supp. 1369, 1376 (D. 
Ariz. 1997) (The D&X; method is one of several ``safe, medically 
acceptable abortion methods in the second-trimester.''); Women's 
Medical Professional Corp. v. Voinovich, 911 F. Supp. 1051, 1070 (S.D. 
Ohio 1995) (``[T]his 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, because it is less invasive--that is, it 
does not require sharp instruments to be inserted into the uterus with 
the same frequency or extent--and does not pose the same degree of risk 
of uterine and cervical lacerations . . . [T]he D&X; procedure appears 
to have the potential of being a safer procedure than all other 
available abortion procedures . . .'').
---------------------------------------------------------------------------
    These rulings were based on a wealth of credible medical 
evidence. Indeed, the American College of Obstetricians and 
Gynecologists (``ACOG''), the leading professional association 
of physicians who specialize in the health care of women, has 
concluded that D & X is a safe procedure and may be the safest 
option for some women. ACOG has explained that ``[i]ntact D & 
E, including D & X, is a minor--and often safer--variant of the 
`traditional' non-intact D & E.\29\'' ACOG has also stated that 
D & X ``may be the best or most appropriate procedure in a 
particular circumstance to save the life or preserve the health 
of a woman.\30\'' ``Only the physician, in consultation with 
the patient and based on her circumstances, can make this 
decision.'' \31\
---------------------------------------------------------------------------
    \29\ Brief of Amici Curiae American College of Obstetricians and 
Gynecologists, et al., in Support of Respondent at 6, filed in Stenberg 
v. Carhart, 530 U.S. 914 (2000) (No. 99-830) (hereinafter ``ACOG 
Brief'').
    \30\ ACOG, Statement of Policy, Abortion Policy at 3 (Sept. 2000).
    \31\ ACOG Brief at 7.
---------------------------------------------------------------------------
    Relying on such medical evidence, the Supreme Court 
concluded in Stenberg that ``significant medical authority 
supports the proposition that in some circumstances, D & X 
would be the safest procedure.\32\'' Indeed, the Court 
concluded that ``a statute that altogether forbids D & X 
creates a significant health risk.'' \33\
---------------------------------------------------------------------------
    \32\ Stenberg, 530 U.S. at 932.
    \33\ Id. at 938. In addition, the Supreme Court squarely rejected 
the very same claims made in H.R. 760's ``findings'' that D & X is 
somehow unsafe because it allegedly creates risks of cervical 
incompetence and lacerations or risks from blind instrumentation and 
conversion of the fetus to a breech position. Stenberg, 530 U.S. at 
933-38. Medical evidence fails to support any of these claims.
---------------------------------------------------------------------------
    This is why, in addition to ACOG, numerous other medical 
groups have publicly opposed attempts by Congress to pass 
abortion ban legislation, including the American Public Health 
Association, American Nurses Association, American Medical 
Women's Association, California Medical Association, Physicians 
for Reproductive Choice and Health, American College of Nurse 
Practitioners, American Medical Student Association, 
Association of Reproductive Health Professionals, Association 
of Schools of Public Health, Association of Women 
Psychiatrists, National Asian Woman's Health Organization, 
National Association of Nurse Practitioners in Reproductive 
Health, National Black Women's Health Project, National Latina 
Institute for Reproductive Health, and Rhode Island Medical 
Society. Moreover, contrary to the claims of the sponsors of 
H.R. 760, the American Medical Association does not support any 
criminal abortion ban legislation.\34\
---------------------------------------------------------------------------
    \34\ American Medical Association Statement, Oct. 21, 1999 (because 
abortion ban bill contained criminal sanctions, ``[f]or this reason we 
do not support the bill'').
---------------------------------------------------------------------------

H.R. 760 CRIMINALIZES DOCTORS AND ENCOURAGES WOMEN TO BE SUED BY THEIR 
                          HUSBANDS AND PARENTS

    H.R. 760 would turn doctors into criminals and put them in 
jail for performing a safe medical procedure.\35\ The civil 
sanctions and criminal remedies, along with previous references 
by legislative proponents to medical professionals as 
``assassins,'' ``exterminators'' and ``murderers,'' have been 
said to be part of a design to intimidate medical professionals 
from performing abortions generally. Similarly, put in the 
context of abortion clinic demonstrations and bombings, it 
seems that many in the anti-abortion movement have an agenda of 
banning all abortions.
---------------------------------------------------------------------------
    \35\ H.R. 760, Sec. 3, para.a. Representative Baldwin offered an 
amendment to eliminate the criminal penalties, which was defeated in a 
party-line vote.
---------------------------------------------------------------------------
    The provisions in the legislation imposing criminal 
sanctions--including imprisonment--appear to be drafted to put 
physicians in a position where they will be chilled from 
performing many of the most common abortion procedures. For 
example, doctors may well choose not to perform any abortion 
for fear that they will be unable to afford the costs of 
establishing that the method of abortion chosen wasn't the only 
one available to save the woman's life. Given the vague and 
overbroad language of the bill, doctors can reasonably fear 
prosecution for using the safest and most common second-
trimester abortion methods. For this reason, the American 
Medical Association does not support the bill.\36\
---------------------------------------------------------------------------
    \36\ American Medical Association Statement, Oct. 21, 1999.
---------------------------------------------------------------------------
    Further, the bill allows a woman to be sued by her husband 
or parents if she receives a partial-birth abortion.\37\ As the 
Supreme Court has held, a husband cannot have veto power over 
his wife's decision to have an abortion.\38\ Allowing a husband 
to sue his wife, or threaten to sue his wife, is merely a back-
door attempt to avoid yet another Supreme Court holding. In 
addition, this provision allows an abusive husband or a husband 
who has abandoned his wife to sue or threaten his wife with a 
lawsuit if she obtained the procedure to protect her health and 
future fertility. This is an extremely anti-family provision 
that encourages litigation over a personal, medical 
decision.\39\
---------------------------------------------------------------------------
    \37\ Although the bill exempts women from criminal prosecution, 
Sec. 3, para.(e), they are not exempt from the bill's imposition of 
civil liability: ``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.'' Sec. 3, 
para.(c)(1).
    \38\ Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 
52, 70 (1976).
    \39\ Representative Nadler offered an amendment that would have 
eliminated the civil cause of action against the woman, but it was 
defeated in a party-line vote.
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                               CONCLUSION

    H.R. 760 is a facially unconstitutional attempt to roll 
back a woman's right to choose. The bill suffers from the same 
two flaws that led the Supreme Court to declare a similar 
Nebraska statute unconstitutional: it fails to include an 
exception to protect maternal health, and it places an undue 
burden on a woman's right to obtain an abortion prior to 
viability by banning the most common 2nd-trimester abortion 
procedure. Fifteen pages of ``findings'' do nothing to remedy 
this unconstitutionally flawed bill.
    Further, even if the bill were limited to one, specific 
abortion method--which it is not--it would still endanger 
women's health by prohibiting a procedure that the American 
College of Obstetricians and Gynecologists and other respected 
medical groups say may be the best or most appropriate 
procedure to save the life or preserve the health of a woman. 
In addition, the bill is part of a political scheme to 
sensationalize the abortion debate through heated rhetoric and 
to shift the focus from the fact that women and their doctors--
not the government--should decide matters of their own health 
care. Finally, the bill criminalizes the practice of medicine 
and subjects women to lawsuits by their husbands and parents. 
For all of these reasons, we dissent.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Rick Boucher.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.
                                   Linda T. Sanchez.