Partial-Birth Abortion Ban Act of 2003

PARTIAL-BIRTH ABORTION BAN ACT OF 2003

Mrs. MURRAY. I am pleased to join with Senators BOXER and HARKIN in the debate to reaffirm the protections guaranteed to women in the landmark Roe v. Wade decision.

Let's be clear: The Republican leadership is trying to do something extraordinary on the Senate floor, something everyone who cares about the Constitution and women's rights should pay attention to. They have already done it in the House. The Senate, now, is the last line of defense.

It is helpful if we look at the history of this debate to see why the Republican approach is a threat to women's constitutionally protected rights. Earlier this year, the Senate debated the so-called partial-birth abortion ban. I joined with many of my colleagues in speaking against that proposal. I noted the bill was unconstitutional based on the Supreme Court's ruling in Stenberg v. Carhart. In that case, the Supreme Court struck down a similar law in Nebraska because it was too broad and because it did not include an exception for women's health.

We made that case in the Senate, but we were repeatedly turned back. We also offered reasonable amendments to make sure this legislation would not threaten the lives or the health of women and to reduce the number of abortions in America.
Opponents rejected almost all of our amendments. That showed me their real goal was not to reduce the number of abortions or to protect women but to use the power in Congress to overturn Roe v. Wade.

As the debate continued in the Senate, my suspicion was confirmed. For example, I introduced a prevention amendment to reduce the number of abortions. My amendment would have provided contraceptive equity in health plans, expanded education about emergency contraceptives, made emergency contraceptives available in the emergency rooms for victims of rape, and would have offered CHIP health insurance coverage to protect women. My amendment was defeated on a budget point of order.

Senator Feinstein offered an amendment to protect the health of a woman. That amendment was defeated as well. That brings us now to the Harkin-Boxer amendment and the reason we are having a debate today. That amendment reaffirmed the
Senate's support for the Roe v. Wade decision. It passed the Senate with a bipartisan vote of 52 to 46. The Senate was firmly on the record supporting the Roe decision. Eventually, that so-called partial-birth abortion bill passed the Senate, including the language supporting Roe.

Then something happened, something completely undermined the will of this Senate. The Republican leadership tried to bring up the House version of the bill and send it to conference. Many Members objected. That is why we are here today, to completely disregard the will of the Senate. To disregard the fundamental rights afforded all women in this country by the United States Supreme Court is unacceptable.

I urge my colleagues to support this motion and send the amendment back to conference. The Senate needs to send the right message to the Supreme Court and to women across this country—that their inherent right of privacy and their right to make reproductive health care decisions will not be jeopardized. This is another attempt to circumvent the Supreme Court's ruling in the Stenberg v. Carhart case. The authors of this bill tried to get around the law of the land by inserting a section of congressional findings in their unconstitutional bill. These findings dispute the basis for the Supreme Court's decision, and they state that Congress finds the partial-birth abortion ban legislation to be constitutional.

The authors of this legislation claim that congressional findings are all that is necessary to ensure a law is constitutional.
That is a bit optimistic on their part, and it ignores past congressional findings that were ignored by the Court.

The Court struck down the Nebraska law for one reason. It did not contain any consideration for the health of the woman as prescribed in the original Roe decision.

Telling the Court that Congress does not find women's health to be important does not meet the constitutional test.

It is somewhat surprising that opponents of this motion would now argue that talking about Roe or the constitution protections provided in Roe is not relevant.

One of the reasons I opposed S. 3, the so-called Partial Birth Abortion Act, was because I know this legislation is unconstitutional. It simply does not meet the constitutional test that requires providing some consideration for the health of the woman.

The Court has been extremely clear on this point.

We are voting to ban a legal, safe medical procedure that is used to save the life and health of women. Proponents of this legislation will argue that S. 3 does not undermine Roe, that it does not jeopardize a woman's life or health, and that it simply bans one procedure. I think we all know the true objective here. It is to overturn Roe piece by piece.

The other side claims they are not seeking to overturn Roe but, rather, to protect women and the unborn. If they really believe this and they are not concerned with a constitutional challenge, they should support the Harkin-Boxer amendment.
This amendment should be part of any final legislation.

I think it is important to discuss what Roe did and did not say.

I often hear that Roe allows for abortion on demand at any stage of the pregnancy. That is simply not true. The Justices worked very hard to achieve a balance between the privacy of the woman and the interests of the state. They found this balance by distinguishing between pre- and post-viability. The underlying issue in Roe was privacy.

The Roe case built on the precedent established in Griswold v. Connecticut, which outlawed State laws that criminalized or hindered the use of contraception because they violated the right to privacy.

In the Roe decision, the Supreme Court used this same right of privacy to prohibit laws that banned abortions performed before viability. After viability, the Court did rule that the State does have a prevailing interest to restrict abortion, which is why so few abortions are performed late in pregnancy. Eighty-eight percent of abortions are performed before the end of the first trimester of pregnancy, and 98 percent occur during the first 20 weeks.

What the Court said regarding post-viability is that the State could restrict access, but the law must include a health and life exception. The Supreme Court found that the State's right to restrict or regulate abortion could not—and let me repeat, could not—jeopardize the life or health of the woman.

It is disheartening to me that efforts to overturn or restrict the rights afforded in the Roe decision often exclude any consideration for the life or health of the woman.

I have heard supporters of S. 3 claim that so-called partial-birth abortions jeopardize a woman's health and are never necessary to protect the health of the woman. If anyone doubts that Roe was not important for the life and health of a woman, they should consider the world before Roe.

In 1973, abortion, except to save a woman's life, was banned in nearly two-thirds of our States. An estimated 1.2 million women each year were forced to resort to illegal abortion, despite the risks associated with unsanitary conditions, incompetent treatment, infection, and hemorrhage.

Because the procedure was illegal, there is no exact figure on the number of deaths caused by illegal abortions in the U.S.
One estimate that was made before 1973 attributed 5,000 deaths a year to illegal abortions.

According to a 1967 study, induced abortion was the most common single cause of maternal mortality in California. The number of deaths per 100,000 legal abortion procedures declined from 4.1 percent to 0.6 percent between 1973 and 1997.
The choices women had prior to 1973 were often the choice between life and death.

The Roe decision, coupled with the Griswald decision that gave women the right to contraceptives, finally gave women full and just reproductive choice.

But again the Roe decision does not allow for abortion on demand. The decision placed the appropriate restrictions on late-term abortions without forcing women into the back alleys.

Currently, 41 States have laws that restrict or ban post-viability abortions, except to save the life and health of the woman.
This is consistent with Roe. Clearly, Roe did not result in abortion on demand at any stage in the pregnancy.
today we are ready to turn back much of what was achieved in Roe by banning a safe medical procedure at any stage of the pregnancy regardless of the threat to the woman. S. 3 removes any consideration of the health of the woman. Personally, I believe the Court will strike down this misguided legislation when it passes. However, we should send the right message to the Court that the U.S. Congress supports the Roe decision and believes that the right of privacy is an important protection for all Americans.

I am fortunate to represent a State that has twice voted to reaffirm Roe and to protect a woman's right to reproductive choice. In fact, in 1998, a similar effort to ban a safe and legal abortion procedure was defeated in Washington State. People in Washington State understand the need to provide for the health and the life of a woman.

In fact, a recent ABC News poll shows a majority of Americans support a health exception for the woman for late-term abortion. The poll—which was just conducted in July—asked, if a late-term abortion would prevent a serious threat to the woman, should it be legal? Twenty percent said it should be legal in all cases, 41 percent said it should be legal if health is threatened—a total of 61 percent. This poll shows what many of us believe, that a woman's health is an important factor and consideration.

This motion will give Members the chance to cast their vote either in support of Roe or in support of overturning this landmark decision. If you believe that women in this country should be afforded full reproductive choice, then you must vote to ensure that the Harkin-Boxer amendment remain part of any final conference agreement on S. 3. If you oppose this amendment, you are saying that you do not believe that the Constitution provides women with the right of privacy and that there should be no consideration for the health and life of the woman.

I hope we don't turn back the clock on the floor of the Senate and place women in this country at risk again.