Partial-Birth Abortion Ban Act of 2003

PARTIAL-BIRTH ABORTION BAN ACT OF 2003

Mrs. MURRAY. Madam President, here we are, once again debating this issue. Since we began debating how to criminalize women's health choices yesterday, the Dow Jones has dropped 170 points; we are 1 day closer to a war in Iraq; we have done nothing to stimulate the economy or create any new jobs or provide any more health coverage. But here we are, debating abortion in a time of national crisis.

Since we are debating S. 3, I want to expose this proposal for what it is. It is deceptive, it is extreme, and it is unconstitutional.

First of all, it is deceptive. The other side wants you to think that this just affects one procedure performed in the third trimester, but that is not true. We need to remember what Roe v. Wade clearly spells out. Up to viability, a woman and her doctor make the choice. However, any late-term abortion can only be performed to save the life or health of the woman. But the language in S. 3 is broad. It is so broad as to apply to many procedures, and it would impact women in the second trimester.

That is exactly why the Supreme Court struck down a similar State law in Nebraska. It is deceptive because it would not just be limited to what the other side implies it does.

Partial-birth is a political term. It is not a medical term. Despite all of the hot rhetoric we hear, this bill is neither designed nor written to ban only one procedure. It would also apply well before viability and could ban possibly more than one procedure.

Second, this bill is extreme. It is just the first in a long march to dismantling a constitutionally protected freedom. Don't take my word for it. Listen to the President of the United States who declared in 1994:

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I will do everything in my power to restrict abortion.

On the issue of women's reproductive freedom, the President has kept his word. He and his staff have worked tirelessly to turn back the clock on women's health choices. In only 2 years, the President has issued a rash of executive actions that could severely restrict stem cell research, thus threatening lifesaving medical advances; reimposed the global gag rule on international family planning programs; made a fetus eligible for health insurance but not the pregnant woman who is carrying the fetus; packed the Federal courts with anti-choice judges; and appointed stanch opponents of reproductive choice throughout all levels of the executive branch.

We will hear the Republicans use the most graphic and disturbing descriptions they can find to try to sour the public on something that was decided by the U.S. Supreme Court years ago. And it still opens the door to future politicians banning additional safe and legal procedures.

Third, this ban is unconstitutional. The U.S. Supreme Court has already ruled that this very type of restriction violates the Constitution. Last year, in the case of Stenberg vs. Carhart, the U.S. Supreme Court ruled a similar law at the State level unconstitutional for two reasons.

First, the language is so broad that it bans other constitutionally protected procedures. The Supreme Court's rulings state:

Even if the statute's basic aim is to ban D&X, its language makes clear it also covers a much broader category of procedures.

The bill before us is similarly unconstitutional because it covers too many constitutionally protected procedures.

Second, the Supreme Court found the State law unconstitutional because it did not contain an exception to protect the woman's health. Let me read that part of the ruling.

The governing standard requires an exception where it is necessary and appropriate medical judgment for the preservation of the life or health of the mother.

Our cases have repeatedly invalidated statutes that in the process of regulating the method of abortion impose significant health risks.

Guess what. The Republican bill before us fails the same constitutional test. It is too broad, and it does not contain an exception to protect the health of the mother. And the Supreme Court has said it is unconstitutional.

We have Republicans offering today a clearly unconstitutional bill on at least two counts. Proponents of the ban will argue that they have addressed the concerns addressed by the Supreme Court. However, a statement of congressional findings is not binding on the Court. The other side is using misleading and deceptive arguments to ram through an extreme and unconstitutional measure.

If the goal of the Republican Senate, the Republican House, and the Republican White House is to have fewer abortions in this country, then let us have an honest attempt to accomplish that goal. To show a real commitment to reducing abortion, my colleagues should support the amendment I will offer. It will help prevent unintended pregnancies and abortions in the first place.

The Murray-Reid amendment which we intend to offer would do three things: It would reduce unintended pregnancies, reduce the number of abortions, and improve the health of low-income women.

I will offer this amendment on behalf of Senator Reid and myself. Senator Reid has been a long-time champion of women's health issues, and especially for access to family planning. I thank Senator Reid for his leadership on the amendment I will offer.

The Murray-Reid amendment would raise awareness about emergency contraceptives and ensure that insurance companies treat contraceptives fairly and ensure that low-income women have access to health care before, during, and after pregnancy.

First of all, the Murray-Reid amendment would reduce the number of abortions in America. I think that is something we can all agree on, and it is something we all would support.

By educating women about the availability of emergency contraception, an emergency contraceptive known as an EC could help prevent a pregnancy when taken within 72 hours. It is sometimes called the morning-after pill. An EC does not induce an abortion. An EC is not RU-486. It is simply a high dose of conventional birth control taken soon after contraceptive failure, unprotected sex, or rape.

ECs are safe and they are legal. They reduce the number of abortions and unintended pregnancies.

In fact, a study by the Alan Guttmacher Institute found that emergency contraception prevented 51,000 abortions in 2000. Unfortunately, too few women know that they are available. It has been reported that 50 percent of all pregnancies in our country are unintentional. The best way to ensure a healthy child and reduce the infant mortality rate or birth defects is to ensure that the woman is healthy prior to pregnancy. Public awareness campaigns targeting women and health care procedures will help remove many of the barriers to emergency contraception and will help bring this important means of preventing unintentional pregnancies to American women.

My amendment simply improves the awareness about emergency contraceptives.

According to the American College of Obstetricians and Gynecologists, only one-third of women of reproductive age know about emergency contraception.

Mr. President, again I will be offering my amendment shortly. One of the provisions will be to improve awareness about emergency contraceptives. As I said, according to the American College of Obstetricians and Gynecologists, only a third of women of reproductive age know about emergency contraception, and only one in five physicians regularly discuss it with their patients.

What the Murray-Reid amendment does is improve awareness about emergency contraceptives by providing $10 million in each of the next 5 years to establish a public education program. It will educate women and medical professionals across the country about the use of emergency contraceptives. It will allow the Department of Health and Human Services to provide grants to groups of providers working on this education campaign.

Not long ago I visited an organization in my State that provides bilingual pamphlets to clinics and providers in eastern Washington on the availability of ECs and how the drug combinations work to prevent pregnancy. I also know that Planned Parenthood of Washington is working to provide education on ECs as part of their overall family planning counseling.

State public health agencies could also apply for a funding grant to further their efforts to educate women on this safe and effective means of preventing pregnancy.

My amendment also makes emergency contraceptives available to victims of rape in the emergency room. When a woman has been raped and is brought to the emergency room, she may not even be aware that there is a safe and legal way to prevent her from becoming pregnant. We know that counseling in many emergency rooms on the availability of safe and effective contraceptives is simply being ignored. Providing emergency contraceptives or even information about them is still, amazingly, not standard protocol for treating a rape victim. Educating women will ensure that women are more aware. The unfortunate truth is that rape victims are not getting the care they need. Our amendment would allow doctors in the emergency room to just simply tell a rape victim about this safe and legal alternative to abortion.

Let me turn to the second part of my amendment, which requires insurance companies to treat contraceptives fairly. Today, amazingly, many insurance companies will cover drugs such as Viagra, but they will not cover contraceptives. We should eliminate this discrimination in insurance and improve women's health.

Today, 20 States, including Washington State, do have some form of contraceptive equity requirement. Recently, a court decision in my home State of Washington affirmed access to contraceptives as a civil rights protection. Most Americans would agree that when you talk about preventing unintentional pregnancies and protecting women's health, you must have contraceptive equity.

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The average annual cost of oral contraceptives can range from $400 to $700 a year. Women of reproductive age spend 68 percent more than men on out-of-pocket health care services. While there are several factors that cause this disparity, the lack of contraceptive equity plays a very big role. A recent survey of health plans showed that 49 percent of large group plans do not routinely cover a contraceptive method. Many States, including my own State of Washington, have taken steps to correct this obvious inequity. But without Federal legislation, the change will be slow, and it will lack a comprehensive commitment to protecting women's health.

This debate is not about costly new mandates or even about moral judgments; rather, it is about eliminating economic discrimination and protecting women's health.

Under my amendment, if health insurance plans offer prescription drugs, they would have to cover contraceptives and treat them equally. If we are going to jeopardize women's health by banning certain safe and legal procedures, then we must ensure access to contraceptives and effective family planning services.

Finally, my amendment would increase health coverage for low-income women through all stages of pregnancy. Not long ago, the administration said States should use SCHIP dollars for the care of the unborn fetus, but it did not extend that to the pregnant woman. That is ridiculous. The clinical guidelines of the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics both indicate that the woman and the fetus should be treated together. It just makes sense.

So my amendment would ensure States can provide medical coverage for pregnant women from the SCHIP fund. That will help reduce infant mortality and ensure that both the woman and the child get the medical care they need.

This part of my amendment comes from a bipartisan bill, the Mothers and Newborns Health Insurance Act, that was introduced by Senators BINGAMAN, LINCOLN, and CORZINE, who have been huge champions of this issue.

Before I end this morning, I just want to share a story with my colleagues of a 34-year-old woman named Audrey Eisen. She and her husband Tom desperately wanted to have children. After trying for 2 years, they became pregnant. And after experiencing the sadness of a miscarriage in July of last year, Audrey and Tom were elated to learn they were pregnant. The checkups during the first few months indicated that the embryo was developing normally. At 13 weeks, they planned to have a special ultrasound. Unfortunately, they discovered the fetus was developing an abnormal number of fingers and toes and that the condition could indicate a much more serious complication, trysomy 13.

Trysomy 13 is a chromosomal condition in which there are three, rather than two, of the 13th chromosome. This syndrome is characterized by multiple abnormalities, many of which are not compatible with life beyond a couple of months. Most fetuses with trysomy 13 die in utero. Of those who make it to birth, almost half do not survive past the first month, and roughly three-quarters die within 6 months, and long-term survival is 1 year.

Unfortunately, neither life nor death comes easily for these children. It is a painful existence, marked by periods of breathing cessation and seizures. When Audrey returned for another ultrasound to get a better image of the fetal brain, her worst fears were confirmed. Here is what Audrey wrote:

The first thing my OB examined during the ultrasound was the fetal brain. He did not say anything. I could tell he was holding something back and asked that he tell me what he saw. He said: "It is not normal." The rest of the scan was a blur as tears ran down my cheeks and those of my mother and husband who had accompanied me. Following the scan, the doctor left us alone to compose ourselves, after which we met with the genetic counselor. I cried with my whole body from the depths of my soul.

Audrey underwent additional testing in which she found that their fetus had a complete duplication of the 13th chromosome. It also exhibited a failure of the forebrain to properly develop and separate from the rest of the brain, a ventricular septal defect in the heart and a herniation of a portion of the abdominal organs into the umbilical cord.

Audrey's letter continues:

At this point we discussed our options with the genetic counselor. My husband and I both felt strongly that it was in both the child's and our best interest to terminate as quickly as possible. The genetic counselor told us that we could either have a D&E or be induced. My doctor prescribed both procedures and we decided that a D&E was clearly best for me. The procedure was performed four days later on the first day of my 16th week of pregnancy. I don't think that I really understood this issue emotionally or intellectually until I was in the position of having to terminate my much desired pregnancy. Along with my sadness came a realization that if such legislation passed, the right to safe second trimester termination of pregnancies might not remain available to those women who come after me. In this event, I don't know how these women will endure. I don't know how I could have endured.

Audrey Eisen had to make a terrible decision that no mother ever wants to make. But this Senate wants to inject itself between Audrey Eisen and her doctor.

As I mentioned at the start of my remarks, I find it outrageous that as our Nation stands on the brink of war and our citizens struggle with a stagnant economy, the Republican Senate can find no more important topic to debate than criminalizing women's health decisions. When a woman is lying in pain in the operating room and doctors are telling her that her dream of a healthy baby has been replaced by a nightmare of medical complications and that under these harrowing circumstances she must immediately make a life altering decision that could determine whether she lives or dies or whether she can have children ever again, that woman should be able to make that decision with her family, her doctor, and her faith. The Senate should not make that decision for her.

This bill is an unconstitutional, extreme measure being sold through misleading arguments. If the proponents truly are interested in reducing unwanted pregnancies and reducing the number of abortions, they should support the Murray-Reid amendment which would also improve health care for low-income women. I urge my colleagues to reject the underlying bill. The Senate should not substitute its judgment for the judgment of a woman in one of the most intensely personal decisions she is ever likely to make. But if the Senate is going to ram through this unconstitutional, extreme measure, the least we can do is temper it with safe, responsible access to emergency contraceptives, fair treatment of contraceptives by insurers, and health care for low-income pregnant women.

Mr. President, I send the amendment to the desk and ask for its immediate consideration.