[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 3 Engrossed in Senate (ES)]
108th CONGRESS
1st Session
S. 3
_______________________________________________________________________
AN ACT
To prohibit the procedure commonly known as partial-birth abortion.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Partial-Birth Abortion Ban Act of
2003''.
SEC. 2. FINDINGS.
The Congress finds and declares the following:
(1) 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.
(2) 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. 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.
(3) In Stenberg v. Carhart (530 U.S. 914, 932 (2000)), 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. Thus, 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.
(4) 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.
(5) However, 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.
(6) 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''. 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''. Anderson v. City of Bessemer City, North Carolina
(470 U.S. 564, 573 (1985)). 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'' (Id. at 574).
(7) Thus, 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.
(8) However, 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 accept 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
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.
(9) In Katzenbach v. Morgan (384 U.S. 641 (1966)), 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.'' (Id. at 653).
(10) Katzenbach's highly deferential review of Congress's
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''. City of Rome, Georgia v. U.S. (472 F. Supp. 221 (D.
D. Col. 1979)) aff'd City of Rome, Georgia v. U.S. (46 U.S. 156
(1980)).
(11) 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. 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)). 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''. 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'' (512 U.S. at 665-66). 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.'' (Id. at 666).
(12) Three 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.''' (520 U.S. at 195).
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,'' (Id. at 195), and added that it
``owe[d] Congress' findings an additional measure of deference
out of respect for its authority to exercise the legislative
power.'' (Id. at 196).
(13) 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 was informed by extensive
hearings held during the 104th, 105th, and 107th Congresses and
passed a ban on partial-birth abortion in the 104th, 105th, and
106th Congresses. These findings reflect the very informed
judgment of the Congress 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.
(14) Pursuant to the testimony received during extensive
legislative hearings during the 104th, 105th, and 107th
Congresses, Congress finds and 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.
(B) There is no credible medical evidence that
partial-birth abortions are safe or are safer than
other abortion procedures. 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. Furthermore, 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. Indeed, 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.
(C) 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''.
(D) 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.
(E) 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.
(F) A ban on the partial-birth abortion procedure
will therefore advance the health interests of pregnant
women seeking to terminate a pregnancy.
(G) In light of this overwhelming evidence,
Congress and the States have a compelling interest in
prohibiting partial-birth abortions. 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.
(H) Based upon Roe v. Wade (410 U.S. 113 (1973))
and Planned Parenthood v. Casey (505 U.S. 833 (1992)),
a governmental interest in protecting the life of a
child during the delivery process arises 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. 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''.
Thus, the government has a heightened interest in
protecting the life of the partially-born child.
(I) This, too, has not gone unnoticed in 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''.
(J) 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. 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.
(K) Thus, 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.
(L) 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.
(M) The vast majority of babies killed during
partial-birth abortions are alive until the end of the
procedure. 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.
(N) 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.
(O) For these reasons, Congress 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.
SEC. 3. PROHIBITION ON PARTIAL-BIRTH ABORTIONS.
(a) In General.--Title 18, United States Code, is amended by
inserting after chapter 73 the following:
``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 date of enactment of this chapter.
``(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.''.
(b) Clerical Amendment.--The table of chapters for part I of title
18, United States Code, is amended by inserting after the item relating
to chapter 73 the following new item:
``74. Partial-birth abortions............................... 1531''.
SEC. 4. SENSE OF THE SENATE CONCERNING ROE V. WADE.
(a) Findings.--The Senate finds that--
(1) abortion has been a legal and constitutionally
protected medical procedure throughout the United States since
the Supreme Court decision in Roe v. Wade (410 U.S. 113
(1973)); and
(2) the 1973 Supreme Court decision in Roe v. Wade
established constitutionally based limits on the power of
States to restrict the right of a woman to choose to terminate
a pregnancy.
(b) Sense of the Senate.--It is the sense of the Senate that--
(1) the decision of the Supreme Court in Roe v. Wade (410
U.S. 113 (1973)) was appropriate and secures an important
constitutional right; and
(2) such decision should not be overturned.
Passed the Senate March 13, 2003.
Attest:
Secretary.
108th CONGRESS
1st Session
S. 3
_______________________________________________________________________
AN ACT
To prohibit the procedure commonly known as partial-birth abortion.