Daniel Coats

Mr. COATS

Mr. COATS. Mr. President, I introduce the Medical Training Nondiscrimination Act of 1995. This bill would prevent any State or Federal Government from discriminating against a health care provider because that provider does not perform induced abortions or train its ob-gyn residents to perform induced abortions. It is, quite frankly, disturbing to me that this legislation is even necessary. I would venture that few of my colleagues could believe that our society is anywhere near to condoning a requirement that any person or any hospital be required to perform abortions or offer training in abortions. Indeed, as it stands now, our proud tradition of tolerance toward those who abhor abortion and any participation in that act, has generally protected hospitals from having to provide or train abortions. In fact, only 12 percent of hospitals now require training in induced abortion. A third more do not offer any such training and the rest offer it only as an option. Of course, those programs still are required to train residents to manage medical and surgical complications of pregnancy. And that includes training procedures than might in the case save the life of the mother, as well as training D and C procedures involving preborn children that died as a result of a spontaneous abortion, miscarriage, or stillbirth. But all this will change now that the Accreditation Council for Graduate Medical Education [ACGME] has voted to require all hospitals to train or arrange for training in induced abortion. The press has indicated that training in late-term, second-trimester abortions would be required. The ACGME has proposed to make exceptions only in the case of an institution that can formulate a cohesive, institutional objection based on religious or moral principles. What is particularly shocking is that the Federal Government no only condones this compulsion but actually punishes those who do not submit. Here's how: Failure to do the abortion training could result in loss of accreditation by the ACGME. Loss of accreditation would result in loss of Federal funding. For example, Medicare will not reimburse the Part A costs of intern and resident services if the teaching program is not accredited. Further, ob-gyn residents in a program not accredited by the ACGME are ineligible for deferral of repayment on Federal Health Education Assistance Loans [HEAL]. The HEAL loan program is reauthorized in S. 555, now before the Senate. Why the change in the standards? Internal correspondence with the ACGME panel suggests that the policy change was motivated by concern over the declining number of doctors willing to perform abortions and the need to destigmatize abortion providers. This concern over the stigmatization of abortion providers was dramatically characterized during the debate on the Foster nomination when one ``pro-choice'' Senator demanded an apology from another pro-life Senator who had ``defamed'' Dr. Foster by calling him an abortionist. Would an apology have been demanded if Dr. Foster had been called a heart surgeon or a podiatrist? No, there remains substantial negative stigma associated with being an abortion provider--stigma that might be eliminated if all obstetricians and gynecologists had to perform abortions as part of their residency training. The Medical Training Nondiscrimination Act of 1995 would protect the civil rights of health care providers by preventing the Government from discriminating against any health care provider on the basis that it will not perform, train, or undergo training to perform an induced abortion. Discriminatory actions include denial of any benefit, assistance, or license, and the conditioning of such benefit, assistance, or license on the provider's compliance with accredition standards that require the performance, training, or arranging for training of induced abortions. The amendment applies only to State action and does not proscribe a private accrediting body from requiring abortion training. Providers who choose to offer abortion training, and individuals who seek abortion training, may continue to do so. The amendment does not prevent any program from offering abortion training. Providers will continue to train the management of complications of induced abortion as well as train to handle situation involving miscarriage and stillbirth or a threat to the life of the mother. The amendment requires no change in the practice of good obstetrics and gynecology. This legislation has broad bipartisan support. On the House side Congressman Hoekstra, LaFalce, Volkmer, Coburn, and Weldon have introduced identical language in the House following hearings. I urge my colleagues to join me and protect the rights of health providers against Federal and State government action that forces them to become involved in training or providing induced abortions against their will. I ask unanimous consent that the text of the bill be inserted in the Record.

Mr. COATS

Mr. COATS. Mr. President, I doubt that anything I say will shatter the deafening silence the Senator from Massachusetts alluded to. But it will at least interrupt. We have a number of speakers. Mrs. Kassebaum, who normally would be managing this, is chairing a hearing of the Labor Committee. I know the Senator from Massachusetts, who was a former chairman of that committee, understands that sometimes they do not end as quickly as you would hope. She will be here as soon as she can. A number of other Members plan to speak on our side. Several of them are tied up in that same hearing but will be here shortly. Mr. President, if yesterday's vote is any indication, Dr. Foster will not be confirmed as the next Surgeon General of the United States when we take this vote at 2 o'clock. I believe that conclusion is justified by the record. The Labor and Human Resources Committee held what everyone has described as thorough and fair hearings. Dr. Foster was given every opportunity to present, at whatever length of time he required and in whatever detail or depth he required, his qualifications, his experience, and to present his answers to the questions that were raised. Many have concluded, on the basis of that hearing, those who sat through the hearing and those who have examined the record, that Dr. Foster did not satisfactorily answer the many disturbing questions that were raised, that a disturbing pattern of behavior and of responses-- whether directed by the White House or not I do not know for sure-- emanated from those hearings and left many with serious questions. I detailed many of those in a letter to my colleagues, a very lengthy letter comparing the public documents, matters of public record, which in many numerous instances was in direct contradiction to Dr. Foster's version of the various incidents; issues in this debate that arose. Some of those will be addressed here today. That, however, has been a matter of examination for all Senators. They have all had the opportunity to do that, and in a sufficient length of time to do that. I believe that the conclusion that Dr. Foster is not the right man for this job is justified by the record. Questions of medical ethics that were raised are not just disturbing, in my opinion they are disqualifying. Questions of credibility in this Senator's opinion have never been adequately answered leaving us with a candidate that the New York Times says ``fails the candor test.'' These problems, problems that the administration and problems that the nominee himself were largely responsible for, I believe have decided the outcome of this procedure. But I would like to spend a moment this afternoon on the broader lessons that should be taken from the tenure of the former Surgeon General, Dr. Elders, and the apparent failure of this nominee to receive the necessary support for this position, lessons that hopefully will inform the selection of the next nominee for this office. The President of the United States needs to understand that there are millions of Americans committed to the protection of innocent life and the protection of the innocence of childhood. They are not fanatics to be demonized. They are part of the responsible mainstream of American life. They understand that this administration disagrees with them. But what they do not understand is why this administration has chosen to actively assault their deepest beliefs, to disdainfully dismiss their highest ideals, to treat them as if they were beneath civility. This bias has been particularly obvious in the Office of Surgeon General. The former occupant of the Surgeon General's Office, Dr. Joycelyn Elders, abdicated her role as spokesman for public health entirely, and became what appeared to be a full-time spokeswoman for radical causes. And this nominee has shown, as I believe the record indicates, little sensitivity for the moral concerns of countless Americans whom he himself called ``right-wing extremists.'' There is almost a mantra coming out of the White House, a mantra coming out of the Democrat Campaign Committee, a mantra being heard on this floor that any opposition to the President, almost on any subject, is the work of right-wing extremists. Boy, what a powerful group they are. I am not sure even if we can identify who they are. But any opposition raised to what the President deems his priority, his agenda for America, is dismissed either by the President or by his spokespeople as just the work of the right-wing extremists and, therefore, to be dismissed. I would suggest it goes to something far deeper than that. It goes to an undercurrent that threads its way throughout American life, American culture. It goes to the values that many Americans hold dear, people who do not even belong to any particular political party, people who would not begin to identify themselves as right wing or extremist or anything else--just concerns that affect everyday Americans, American families, American parents, those of us that are concerned with some of the breakdown in our culture and some of the undermining of our values. [[Page S 8860]] So we raise questions about the bully pulpit that is being used by the administration, by the President and by the Office of Surgeon General to advocate an agenda that many of us feel is out of the mainstream of what the Democrats describe as the mainstream, but very much in the mainstream of what America has tried as America's agenda. We can debate this. We can debate what is the best course of action to take, and what direction we ought to go and what our values ought to be. We are not very successful at legislating those values. And I do not think it is possible to legislate those values. These problems are not going to be solved in this Chamber. They are going to be decided and solved around the kitchen table, in the family rooms, and where Americans live and work, and where the most discourse takes place among our citizens. But there are many who are concerned that the Office of Surgeon General has been used as an advocacy post for a certain agenda, an agenda that many of us feel is out of step with America's agenda, and the agenda of at least a very substantial majority of our people. This use of this position for this purpose makes the work of the Surgeon General literally impossible because the role of that office traditionally has been--and I think in most of our definitions should be--the role of building consensus around important public health issues. Instead, it is hard to argue any other way but that the administration has turned public health into an ethical battleground by enphasizing not issues that unite us but issues that divide us. And more than that, they have ridiculed anyone who dares to disagree, including the Catholic Church, the pro-life movement, and millions of parents who do not believe that condoms are a universal substitute for moral conviction. This administration by this attitude has undermined the public health discussion in America, and it has squandered the potential that exists for the Surgeon General and the Office of Surgeon General. Now the President, it appears, will have again a choice to make with another nominee--whether that nominee will bind our Nation or rend it, whether it will unite the Senate or divide us. I have some questions for the administration, questions that I think deserve serious consideration and deserve an answer. Mr. President, when will you finally nominate someone who can unite us as Americans around important issues of public health instead of polarizing us? When, Mr. President, will you choose a candidate for this office who is not an advocate of the most divisive issues of our times but is an advocate for those issues that can bring us together as a people? When, Mr. President, will you allow us to return our focus from moral controversies to issues of public health? We are not asking you to send us someone that we always agree with. But we are asking you to send us someone who does not bitterly divide us as a people. If your administration fails to do this, the consequences will be immediate, and I am afraid unfortunate. Because if the President insists that the Office of Surgeon General is a bully pulpit for radicalism, for advocacy, we will be forced to ask if the office should exist at all. I hope this is a decision we do not have to make. And I hope that the President will make his next choice with a lot more care than he exercised on his last two choices. Mr. President, I yield the floor.

Mr. COATS

Mr. COATS. Mr. President, I ask unanimous consent that the Committee on Labor and Human Resources be authorized to meet for a hearing on the Oversight of OSHA, during the session of the Senate on Wednesday, June 21, 1995 at 10:30 a.m.

Mr. COATS. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet on Wednesday, June 21, 1995, at 9:30 a.m. in executive session, to discuss markup procedures and major issues in review of the defense authorization request for fiscal year 1996 and the future years defense program. [[Page S 8829]]

Mr. COATS. Mr. President, I ask unanimous consent on behalf of the Governmental Affairs Committee to meet on Wednesday, June 21, at 10 a.m. for a hearing on S. 929, the Department of Commerce Dismantling Act.

Mr. COATS. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on Wednesday, June 21, 1995 at 2 p.m. to hold an open hearing on Intelligence matters.

Mr. COATS. Mr. President, I ask unanimous consent that the Committee on Labor and Human Resources be authorized to meet for an executive session, during the session of the Senate on Wednesday, June 21, 1995 at 9 a.m.

Mr. COATS

Mr. COATS. Mr. President, I rise today to recognize and honor Comdr. Michael W. Lord, Judge Advocate General's [JAG] Corp, U.S. Navy, as he retires upon completion of 20 years of faithful service to our Nation on July 1, 1995. Upon his retirement Commander Lord will be leaving the Secretary of Navy's Office of Legislative Affairs where for the past 3 years he has served with distinction as the primary liaison point between the Navy and the Congress on some of the Navy's most critical issues, to include all issues involving Navy personnel, recruiting, military health care, and the Naval Academy. Commander Lord, a native of North Adams, MA, graduated from the U.S. Naval Academy in 1975. He was commissioned an ensign and served on U.S.S. Marathon (PG-89) as the engineering and weapons officer. Following decommissioning of the Marathon, Commander Lord served on U.S.S. Hewitt (DD-966) as fire control officer. Commander Lord was selected to participate in the Navy's law education program, and in 1981, earned his law degree at the University of Virginia. As a Navy JAG officer, Commander Lord served as trial counsel, defense counsel and legal assistance officer at the Naval Legal Service Offices in Norfolk and Oceana, VA. In 1983, he served as the first staff judge advocate to commander, Cruiser Destroyer Group 8 where he was responsible for providing legal advice to the commander of the 42 ship group. He then served as the officer in charge of the Naval Legal Service Office Detachment in Guantanamo Bay, Cuba. In 1987, Commander Lord became the legal advisor to the commandant of midshipmen, U.S. Naval Academy. In 1990, he reported to the Military Personnel Division of the Office of the Judge Advocate General where he served as the lieutenant commander detailer until Commander Lord reported to his present position in the Office of Legislative Affairs. Commander Lord's awards have included the Meritorious Service Medal-- gold star in lieu of second, the Navy Commendation Medal--gold star in lieu of second, and the Navy Achievement Medal--gold star in lieu of second. He is authorized to wear the Overseas Service Ribbon. Mr. President, Commander Lord has truly been a great credit to the Navy throughout his career. I know that many of my colleagues are personally aware of his hard work over the past 3 years in the Office of Legislative Affairs and his significant and direct contribution to the future readiness and success of the Naval service. It gives me great pleasure to recognize Comdr. Mike Lord and to wish him, along with his wife, Shirley, and their daughters, Tara, Kelley, and Lindsey, ``fair winds and following seas,'' as he concludes a distinguished career in the U.S. Naval Service.

Mr. COATS

Mr. COATS. Mr. President, I yield 2 minutes, or more if he needs it, to the Senator from Tennessee.

Mr. COATS. Mr. President, I yield myself such time as I may consume. But I ask the Chair to inform the Senator when he has used 10 minutes of time. Mr. President, I say to my colleagues that confirmations are probably one of if not the most difficult tasks required of us here in the Senate because we are not dealing with abstract statistics. We are not dealing with generalizations. We are not dealing with issues per se. But we are dealing with fellow human beings, their character, their lives, their experience--who they are. When we make a judgment on a nominee, I believe it is a task that needs to be taken with some humility. None of us can claim a past without mistakes or without failings. Nevertheless, we are required to weigh the record against the criteria for service and come to an informed decision. Let me begin today by saying what is not at issue in this nomination. Dr. Foster's commitment to the poor is not at issue in this nomination. He has proven that commitment over many years of service. Dr. Foster's engaging good humor is not at issue. He has shown it in our Senate hearings and at other times. And the administration's initial handling of the nomination should not be at issue. You can hardly blame Dr. Foster for White House incompetence. My concerns in this process have been specific and they have been factual. I have attempted to raise some basic questions, questions that for me are determinative in my decision in terms of whether I would support or not support Dr. Foster. Has the nominee been candid? Has the nominee, during his career, displayed the ethical judgment and leadership necessary for the position of U.S. Surgeon General? Would this nominee unify our Nation on important health concerns, or would he fragment it through divisive moral debates? I think it is interesting that today in the New York Times, an editorial appears addressing the question of candor. It is not, I believe, either inconsistent nor does it indicate some kind of a right- wing conspiracy that Members who have opposed Dr. Foster have raised the questions of his credibility and his candor with the Senate and with the public. I am quoting from the New York Times, which says: We continue to believe that Dr. Foster has forfeited any claim to the job by his initial lack of candor about his abortion record. He had a constitutional right, indeed duty, According to the New York Times-- to perform abortions for his patients. The number he performed . . . is in fact rather modest for a busy gynecologist serving a needy population. But numbers are not at issue here. The sad fact is that, from the day his name was announced, Dr. Foster seemed determined to minimize his abortion record and kept being forced to revise the numbers upwards. His misleading statements led us in February to oppose his candidacy. Nothing that has emerged in the later hearings or comments has justified those misstatements. . . . Dr. Foster's candidacy fails the candor test. He deserves . . . to be rejected. Those are not words from this Senator. Those are not words from other Senators. Those are not words from the right wing. Those are words from the editors of the New York Times on the issue of his candor. So I think it is a legitimate issue. It is a legitimate issue to raise. It is a legitimate issue to evaluate. It is a legitimate issue by which to form a judgment as to whether this particular individual is the individual that is best suited for the position of U.S. Surgeon General. It is not our job in a nomination debate to deal in general impressions. Our task is to investigate specific concerns. The questions that I have raised I believe can be answered from the public record. In my opinion, none of these questions were answered satisfactorily during the hearing process; none in favor of Dr. Foster's nomination. There are at least four concerns that I would like to raise before the Senate for consideration. First, at the beginning of this process, I was concerned that Dr. Foster gave varying accounts of his record on abortion--numbers that could not be explained by a faulty memory alone. The nominee has tried to dismiss those concerns, but he has not in my opinion specifically answered them. I am concerned with more than numbers in this matter. I am a pro-life Senator. I would prefer a Surgeon General who extends his compassion to the weakest members of the human family. For me, as a matter of moral principle, a commitment to speak for those who cannot speak for themselves. Having said that, the numbers are not relevant as the New York Times has indicated. It would seem unlikely to me that someone who admits to performing 39 abortions would confuse that figure with performing just one or even 12, that someone who testified that he abhors abortion, and it is one of the most difficult things that he has ever had to do, would be confused over his involvement in abortion or would not remember what his involvement was, and only when pressed on the record would say, ``Well, yes, I guess the number is different than what I initially indicated.'' It is clear that Dr. Foster oversaw, in addition to the 39 that he admitted on the ``Nightline'' show, 55 additional chemical abortions, and 4 additional surgical abortions as part of a scientific study of which he was involved with. We also know now from an official HEW transcript that Dr. Foster himself claimed to have done 700 amniocentesis and therapeutic abortions. We were never able to clarify just exactly what the breakdown was in terms of those abortions; where they came from. That is the clouded part of the record. I cannot avoid the conclusion that Dr. Foster's frequently changing numbers and varying accounts of his personal involvement with abortions are profoundly troubling and difficult to explain as a mere lapse of memory. Second, I am concerned that Dr. Foster may have been informed about the Tuskegee syphilis study before 1972, when it became widely known. That concern was not in my opinion satisfactorily answered despite my lengthy and thorough questioning of Dr. Foster on this subject in the confirmation hearing. Dr. Foster declared in the Labor Committee hearing that neither he nor anyone in the county knew anything about the study. But we know that a number of medical personnel in the county helped conduct the study and knew that treatment was being denied to those black men who had syphilis in the name of continuing the study. We know that Dr. Foster was chief of obstetrics at the Tuskegee Institute, which provided services in connection with the study. We know that Dr. Foster was vice president and later President of the Macon County Medical Society when that society was consulted regarding the study, and when that society agreed to cooperate with the public health service. I have considerable additional material that if time would allow I would be [[Page S 8735]] happy to share with the Senate. I have forwarded a letter to each Member of the Senate for their consideration detailing this information. If time permits, I hope to be able to examine some of that material. The Washington Post editorialized that this was a critical factor in Senators' decisions of knowing what Dr. Foster knew and when he knew it regarding the Tuskegee study. That editorial claimed that, if he had knowledge of that study before 1972, he was not qualified for this office. I presented to the Senate a lengthy detailed record of information that I believe leads to the conclusion that Dr. Foster did know about the study and did not respond as he indicated. We know that Dr. Foster, as then president of the medical society recalls, may have attended a meeting at which the medical society was notified of the study, and documents from the Public Health Service specifically state that each member of the society, which is a small society, 10 Members I believe, was provided with a list of surviving participants in the syphilis study.

Mr. COATS. I thank the Chair. Let me state, third, that I was concerned that Dr. Foster performed sterilizations on the mentally handicapped, without proper consent. That concern was not fully answered. Dr. Foster confirmed that this procedure was done, without the assent of patients and without a judicial decision. He and the White House defended this practice as mainstream medicine at the time, but we found that this procedure was not mainstream, even at the time. It was contradicted by Alabama case law, Federal regulations and professional standards. I cannot avoid the conclusion that Dr. Foster, on this issue, displayed little ethical sensitivity, and demonstrated no ethical leadership. Finally, I became concerned with both the inflated claims and the direction of Dr. Foster's I have a future program. This concern was not answered. In fact, it was decisively confirmed. Dr. Foster and the White House claimed that abstinence was the bedrock of I have a future, and that the program itself was a tremendous success. Objective evidence undermines both of these contentions. Abstinence is not mentioned in two promotional brochures for the program, but contraception is prominently featured. In the program curriculum, abstinence gets a weak second billing to an aggressive contraception focus. On this issue, the pattern of carelessness with the truth was repeated. When abstinence brochures were presented to the committee to show the nominee's commitment to this principle, the publisher confirmed the procedures were written just before Dr. Foster's selection and were ordered only a month after his nomination. I have a future is a story of good intentions and poor results. Two evaluations by the program's own staff show it may actually have been harmful to teen participants. Although they started the program more abstinent than the control group, they ended up more sexually active, and no less pregnant at the end of the program. Mr. President, I cannot avoid the conclusion that I have a future is a program operating on a failed theory, the theory that contraception can be an acceptable substitute for restraint. In considering this nomination, I always come back to the unique nature of this office, an office with little staff, little funding, but exceptional influence. That influence is based on persuasion and respect alone. It is based on the ability to build consensus and provide moral leadership. Dr. Foster has many good qualities, but they are not the qualities for this office, particularly at this time, in the aftermath of Dr. Elders. The reputation of this position must be rebuilt, or its entire future is in doubt. That job of rebuilding will require credibility, ethical judgment, and candor, and it will require in my opinion, a different nominee. For all these reasons, I cannot support this nomination, and I urge my colleagues to defeat the motion to invoke cloture. Mr. President, I yield the floor.

Mr. COATS. Mr. President, could you just inform us of the remaining time on each side?

Mr. COATS. Mr. President, I yield 10 minutes to the Senator from Oklahoma.

Mr. COATS. Mr. President, I yield the Senator from Oklahoma 1 minute, additionally.

Mr. COATS. Mr. President, could I inquire how much time remains on each side?

Mr. COATS. Mr. President, I yield 10 minutes to the Senator from Mississippi.

Mr. COATS. Mr. President, I yield 2 minutes to the Senator from South Dakota.

Mr. COATS

Mr. COATS. And am I further correct that the subsection (f)(4) defense is intended to protect companies from being put in such a catch-22 position? If they try to comply with this section by preventing or removing objectionable material, we don't intend that a court could hold that this is assertion of editorial content control, such that the company must be treated under the high standard of a publisher for the purposes of offenses such as libel.

Mr. COATS. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. COATS. The Senator is correct, this is a narrow defense. The defense is for solely providing access or connection and not a defense for any person or entity that provides anything more than solely providing access. This does not create a defense for someone who has some level of control over the material or the provision of material. To the extent that enhanced access would be an offense, this defense does not apply to someone who, among other things, manages the prohibited or restricted material, charges a fee for such material, provides instructions on how to access such material or provides an index of the material. This is merely an illustrative list and not an exhaustive list of the types of activities that would not qualify as solely providing access or connection under subsection (f)(1).

Mr. COATS. I wanted to clarify that it is the intent of this legislation that persons who are providing access to or connection with the Internet or other electronic service not under their control are exempted under this legislation.

Mr. COATS. Similarly, if a system operator discontinued service to a customer who was generating objectionable material, it is the intent in offering this amendment, and specifically the intent of subsection (f)(4), that no breach of contract action would lie against the system operator?

Mr. COATS. I understand that in a recent N.Y. State decision, Stratton Oakmont versus Prodigy, the court held that an online provider who screened for obscenities was exerting editorial content control. This led the court to treat the online provider as a publisher, not simply a distributor, and to therefore hold the provider responsible for defamatory statements made by others on the system. I want to be sure that the intend of the amendment is not to hold a company who tries to prevent obscene or indecent material under this section from being held liable as a publisher for defamatory statements for which they would not otherwise have been liable.

Mr. COATS. I wanted to clarify that it is the intent of this legislation that persons who are providing access to or connection with Internet or other electronic services not under their control are exempted under this legislation.

Mr. COATS. I thank the Senator.