Tom Daschle

Mr. DASCHLE

Mr. DASCHLE. Mr. President, second, let me just say that the distinguished Senator from Pennsylvania said that only his bill allows a judge and jury to decide. I beg to differ. We have virtually the same standard with regard to the determination of illegality. They don't ``self-certify'' any more than we ``self-certify,'' and vice versa. It ultimately comes down to whether or not someone believes a physician has broken the law. And we have very specific guidelines by which a person, a doctor, can be prosecuted if indeed he or she has violated the law. The third question is simply this. If indeed we want to stop abortion, then we really have a choice. We can stop one procedure, which is what H.R. 1122 does. It only stops one procedure. It allows all the other alternatives to continue. Or we can stop them all. There is only one bill pending--one piece of legislation pending-- that allows the complete elimination of all methods of abortion. Finally, Mr. President, let me just say, as much as one might like to get around the parameters required by the Supreme Court and the Constitution, that when it comes to health, there can be no doubt. A woman's health, as well as her life, needs to be protected. That is exactly what this legislation does. It outlaws every one of the procedures. It doesn't allow doctors just to shift to another procedures as the colleagues on the other side who support this particular procedure will continue to allow. It does not allow that, but it does say we are going to stay within the Constitution in prohibiting all these procedures but saving a mother's life and health. We can do no less. We need to support this legislation. I hope on a bipartisan basis we will do that now.

Mr. DASCHLE. Well, that is really the fundamental difference between the two pending bills. We ban abortion; they ban a procedure. They allow all the other abortion procedures available--dilation and evacuation, induction, hysterotomies--those are still legally available. But what we ban are all of those procedures, all of them, and affix the penalties that we have discussed. So I would say with absolute certainty to the Senator from Maryland that we do everything within the constitutional parameters available to us to stop all abortions.

Mr. DASCHLE. Mr. President, I yield 5 minutes to the distinguished Senator from Connecticut. Mr. President, I withdraw that request.

Mr. DASCHLE. I yield the Senator from Connecticut 10 minutes.

Mr. DASCHLE. Mr. President, I yield 10 minutes to the Senator from Maine.

Mr. DASCHLE. Mr. President, I yield 5 minutes to the distinguished Senator from New Jersey.

Mr. DASCHLE. Well, I appreciate the Senator's question. Let me just say that, first of all, the circumstances involving a doctor's role are identical between the bill offered, which is pending, S. 6, and our legislation. A doctor makes the determination in their case whether or not a life is affected and can make the determination to use their procedure, the procedure that is outlawed, I should say, if in their opinion a life is affected. What we say is that a doctor has to make the decision, but we limit the definition of ``health'' and ``life'' to include only grievous circumstances. And we define ``grievous circumstances'' as severely debilitating diseases specifically caused by pregnancy or an inability to provide necessary treatment for a life-threatening condition. Then we say what it is not. It is not any condition that is not medically diagnosable or a condition for which termination of the pregnancy is not medically indicated. In a previous provision of the bill, we say that termination of a pregnancy must first include the possibility of a live birth. It must include that. Then we say, if you violate it, you are going to lose your license, you are going to pay $100,000; and then $250,000 and you are going to lose your license for good, and you are going to be subject to charges of perjury if you lie. We make anybody who wants to bring charges able to--a nurse, a family member, somebody in the hospital--anybody who has any question about whether or not the right decision was made can bring a charge. So we have done everything we can, I would say to the Senator from Maryland, to get at the legitimate concern that somebody could abuse this.

Mr. DASCHLE. But I must tell you I have seen them. So-called partial- birth abortion is technically called dilatation and extraction. There is another dilatation method called dilatation and evacuation. In that method a fetus is dismembered inside the womb and removed. You could depict that very graphically, too. S. 6 does not restrict that approach. Induction is a method that you could graphically depict. Saline solution or other agents chemically poison the fetus and premature labor is induced. A chemical poisoning of the fetus could be graphically depicted. You could graphically depict hysterotomies. Hysterotomies are pre- term c-sections, an incision. A fetus is lifted outside the womb and the life is terminated. That could be graphically depicted. You could graphically depict a hysterectomy used for purposes of abortion where a woman's womb is completely pulled out of her body. Every one of the procedures that I have just verbally depicted would still be legal under S. 6. They are still legal. And what amazes me is that in spite of the fact that they are every bit as graphically repulsive, they are not addressed in S. 6. A doctor somehow is supposed to certify that the one procedure is inappropriate--dilatation and extraction is something that ought to be prohibited--but under S. 6 dilation and evacuation, induction, hysterotomy, hysterectomy are all OK. We went onto the Web and looked at what National Right to Life Committee had said about these particular procedures. As of the first of May, National Right to Life said that dilatation and evacuation ``may cause cervical laceration.'' Why? Cervical laceration may be caused because when you shove the medical instrument into a woman's womb, you may puncture it. You may puncture it seriously. But there is no ban on this procedure. ``Bleeding may be profuse,'' according to Right to Life. Induction, according to Right to Life, ``risks cervical trauma, infection, hemorrhage, cardiac arrest and rupture of the uterus. Death is not unheard of.'' Those are not Tom Daschle's words but those of the National Right to Life Committee. But guess what. No ban. No ban. According to the National Right to Life Committee, hysterotomy, or c- section involves ``the highest risk to the health of the mother; potential for rupture during subsequent pregnancies.'' And there is no ban for that procedure. What is amazing, at least as of May 1, is that Right to Life cites no maternal health risks for the D&X procedure, and yet, lo and behold, that is the one that is banned. Now, I understand why it is banned, and I am sympathetic to banning it. But does it not seem a little unusual that we would not consider these other approaches, that we would not worry about causing cervical lacerations, bleeding, that we would not worry about cervical trauma and infection and hemorrhage and cardiac arrest and uterine rupture? Now, again, I could have a graphic illustration of a cervical laceration. I could have a graphic illustration of cervical trauma and infection and hemorrhages and cardiac arrest. But you do not need much of an imagination and you do not have to be married to a woman very long to be pretty sympathetic. So who should decide, Mr. President? That is the question. Who should decide? Who should decide which medical procedure is appropriate? A woman and her doctor, knowing all these ramifications, or the Government? That is the question. That is what we are trying to grapple with. We are trying to make the best decision about what to do with these horrendous circumstances. Well, the Court has also grappled with it. The Court has also tried to figure out a way constitutionally to address all of these issues. In Roe versus Wade, what the Court says is that a woman's health ought to be protected throughout pregnancy for the reasons cited, for all these reasons. These are the reasons the Court was concerned about health. You do not have to be a doctor to know that, given the circumstances involving a woman's health, we have to come up with some legal protection. In the 1975 case of Planned Parenthood versus Danforth, the Court said you cannot force a woman and her physician to terminate her pregnancy by methods more dangerous to her health than the method outlawed. In other words, you cannot risk creating a more egregious health set of circumstances for the mother. And then in Thornburgh versus American College of Ob-Gyn's in 1986, it says you cannot force a mother to bear an increased medical risk to save a viable fetus. You may not trade off the mother's health for the fetus's health. That is what the Court says. So, Mr. President, over the last 6 months, we have worked, asking, if we want to act in the Senate and not worry about being overturned by the Court 3 months later, how do we deal with these things? How can you ensure that we are not going to be back here this fall or next year having been declared unconstitutional? What do we do about these Court decisions? They are not just there as guidance. They are there as law. We do not have the luxury of saying we will agree or we will not agree unless we change the Constitution. It is under those constraints and in that context that we attempt to find ways with which to address this issue, first in a comprehensive way, banning all procedures; and, second, in a constitutional way so that we do not have to do our work over again in 6 months or a year. I know there have been a lot of different charts in the Chamber during this debate quoting physicians groups, and I know that you can say anything and use a quote to justify it. But I also know that the American College of Obstetricians and Gynecologists includes both pro- life and pro-choice physicians. I have talked to them. I know they are there. They have been very involved in this debate from the beginning because they, more than anybody else outside mothers who are affected, have to deal with this issue. Pro-life and pro-choice physicians have had to confront this matter. And so ACOG, as they are called, the American College of Obstetricians and Gynecologists, has said in a letter: An intact 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, and only the doctor, in consultation with the patient, based upon a woman's particular circumstances can make this decision. The intervention of legislative bodies into the medical decisionmaking is inappropriate, ill- advised, and dangerous. Now, we do not have to agree with that. All I am saying is that is what this group of Republican and Democratic, pro-life and pro-choice, doctors have said officially. That is their position. You can challenge it and others have, but I believe that they are perhaps the most respected organization directly involved with this particular issue. They do not deal with hearts. They do not deal with brains. They do not deal with feet. They deal with pregnancy. They deal with fetuses. They deal with wombs and uteruses and cervixes and all of the things we have had graphically depicted. They are the experts. Here is what they also tell us, and they cite manuals like this, the Clinical Manual of Obstetrics, from the Medical School of the University of California, Davis, or the Manual of Obstetrics, with contributions from respected obstetric professors from around the country. They say that there are cases when pregnancy termination is required. Pregnancy termination. Now, keep in mind, there is a difference between pregnancy termination by delivery and by abortion. I think everybody in this Chamber would agree that there are some cases when pregnancy termination is required, but pregnancy termination may be delivering a live fetus, a child. And what we are saying in our legislation is that in every case where it is possible to deliver a viable fetus a doctor must do that--must. But there are cases when, unfortunately, that will not provide the mechanism a doctor needs to respond to the crisis. ``Primary pulmonary hypertension, involves the sudden death or intractable congestive heart failure. Maternal mortality approaches 50 percent. This or other complications occur in 10 to 40 percent of patients with chronic hypertension.'' ``Preeclampsia. Severe hypertension and accompanying renal or liver failure.'' Five to 10 percent of pregnancies in circumstances of that kind. ``Cardiomyopathy occurs late in pregnancy in women with no history of heart disease as a distinct well described syndrome of cardiac failure.'' These are diseases caused by the pregnancy, Mr. President, that doctors and manuals like these cite as reasons for pregnancy termination. Now, there are also other cases, other situations unrelated to the pregnancy itself when a pregnancy complicates treatment. ``Cancers. Cancer occurs in approximately 1 in every 1,000 pregnancies. Pregnancy depresses mother's immune system; radiation and chemotherapy are harmful to the fetus.'' Again, the first consideration for termination of the pregnancy must be early delivery. If possible, deliver the fetus. ``Lymphoma. 50 percent cure rate with immediate treatment; likely death in 6 months if delayed; radiation and chemotherapy risk fetal mutation.'' Again, if you can deliver the child, do so. Do so. Breast cancer. 1 in 3,000 pregnancies. ``Increased estrogen and lactose production during pregnancy accelerates cancer; immune system depressed.'' Those are cases, categories of cases, Mr. President, that are listed in obstetrics manuals because they can and do occur. Physicians should be prepared for them, and should know the proper ways to treat pregnant women who develop these serious conditions. There are specific cases that graphically illustrate the answer to the question posed so often by those on the other side of this amendment: Why not deliver? I want to cite a few because I think this is really the crux of the issue. These are the specific cases. A woman in her 25th week is hemorrhaging with internal injuries. Her blood would not clot, leading to uncontrollable bleeding. Delivery by c-section or induction was impossible, because c-section and its increased blood loss posed significant risks. Induced delivery would take too long. Because of the risks to the mother's life and health and the low chance of fetal survival, termination through abortion was chosen because it could not be delivered. It has always concerned me that some say we ought to prohibit abortion except in cases of immediate life endangerment--that they are unwilling to recognize that there also may be cases involving serious health endangerment. How is it that life and death are so clearly delineated, that health never falls in between them? If there are cases involving death, would there not also be cases involving health? And who but the doctor decides when the mother's life is endangered? If we are making liars of all ``abortionists,'' would we not be making liars of doctors who are doing their best to save the mother's life, who decide that termination of a pregnancy through abortion may be required, as is allowed in H.R. 1122? Case No. 2: A 23-year-old woman in her 24th week presented with preeclampsia and deteriorating kidney function. Doctors tried to induce delivery early. After 3 days of unsuccessful attempts, induction was still not possible. At that time, the woman's failing kidneys became completely nonfunctional, risking permanent kidney failure. Recognizing that induction was impossible and c-section totally out of the question, the pregnancy was terminated to save the woman's health-- terminated by abortion. Mr. President, there are others. I will read one provided to us by a trauma surgeon whom I know well--highly regarded, nationally recognized. A patient in the 6th month of pregnancy was severely injured in a motor vehicle collision. She sustained multiple fractures to her extremities and a critical head injury, developed adult respiratory distress syndrome, massive pulmonary inflammation. Her lungs were stiff and it was impossible to ventilate. The trauma staff used every possible technique to improve the lung function, but the size of her uterus made the ventilator unable to inflate her lung. After agonizing, consulting with the family, the physicians came to the conclusion that to protect her heart and lungs, to save her life and her long-term health, they had to abort. And finally, Mr. President, a doctor from my own State of South Dakota related to me a tragic circumstance that completely answers the question of why doctors sometimes absolutely cannot deliver a viable fetus. A 25-year-old woman arrived at the hospital in active, spontaneous labor in her 25th week of pregnancy. The fetus was in the breech position, its feet coming out first. Because of the breech position, the woman's cervix was not fully dilated. Even though most of a preterm fetus can pass through even a partially dilated cervix, a normal fetal head is sometimes too large to be fully delivered and becomes stuck. It is not stopped by the physician, prevented from coming out--it is tragically, but naturally, trapped. In this case, the fetus was already in the process of preterm, spontaneous delivery, and because it could not be completely delivered, it was impossible to further dilate the woman artificially. Manual stretching of the cervix was necessary to create a wide enough opening for complete delivery. This South Dakotan doctor tried pulling at the woman's cervix--the only option left for the doctor--in order to widen the opening enough to deliver the fetus. Manual stretching was not successful. In addition to being very difficult, it also poses great risks to the woman's health and future fertility because such stretching can permanently damage the cervix, risking hemorrhaging. Without complete dilation, the fetus suffocates. Evacuation must be effected by any means, and in this tragic case, that evacuation of the fetus was by the D&X procedure. These were real cases. These did not come from ``abortionists.'' These were doctors trying their very best to help the fetus and the mother to survive. That is what they were trying to do. They were not in the business of abortion. They were in the business of life. What do you do in cases like this? Say that the Government has ruled that these are all impossible? Would that be our response? ``The Government has ruled that none of these cases exist; it is all a figment of your imagination. You are trying to abort. Don't kid us, we know better. We are the Government. We can decide for you. We will tell you. None of these are possible. You are lying to us.'' Is that what we want to say? Do we really know better than this trauma surgeon? Do we know better than these physicians who have been there, who have had blood on their hands, who have tried to save a mother's life and a fetus? Having thought through all of this, and having talked to a lot of our colleagues, this is the best, tightest, toughest language we know how to come up with: It shall be unlawful to abort a viable fetus unless the physician certifies that continuation of the pregnancy would threaten the mother's life or risk grievous injury--grievous injury--to her physical health. ``Grievous injury'' shall be defined as: (a) a severely debilitating disease or impairment specifically caused by the pregnancy. That is case No. 1 that I outlined on the chart. Or: (b) an inability to provide necessary treatment for a life- threatening condition. That is case No. 2 that I outlined in my chart. ``Grievous injury,'' we further elaborate, ``does not include any condition that is not medically diagnosable or any condition for which termination of pregnancy is not medically indicated.'' The American College of Obstetricians and Gynecologists have been very helpful to us in trying to work through this. They say that this is acceptable--they have endorsed our substitute--because it includes ``an exception when it is necessary for a woman's health * * * physicians [have] to make judgments about individual patients,'' as these cases would dictate. There is a similar recommendation in the AMA Board of Trustees draft report just released and so often raised on the floor in the last couple of days. You can agree or disagree with its findings, with its recommendations, but they did say, quoted in the report: ``Except in extraordinary circumstances, maternal health factors which demand termination of the pregnancy can be accommodated without sacrifice of the fetus. * * *'' And we say, ``Hurrah, absolutely. That is exactly what we are trying to do. Let us not end the fetus's life if it is at all possible.'' But keep in mind that first phrase, ``except in extraordinary circumstances.'' I have just tried to give you some extraordinary circumstances--not figments of somebody's imagination, but real life situations presented to us by real life doctors who said, ``We are going to do everything possible to save the fetus, but there are,'' as the AMA has said,'' extraordinary circumstances that cannot be wished away.'' So, who should decide when the medical risks are serious enough? Who should decide? The Government or the doctors? I believe that H.R. 1122, having laid it out as clearly as I know how to lay it out, is unconstitutional. Because doctors can use other procedures, it will not stop a single abortion. I am still absolutely convinced it is a procedure that ought to be abolished. But if we are trying to find ways with which to deal with circumstances in real life, involving efforts to stop abortion after a fetus is viable, H.R. 1122 does not do it. It will not do it. What we do is simply say, look, the Constitution has said that prior to viability, whether you like it or not, unless you are willing to change the Constitution, prior to viability we may not restrict a woman's access to safe abortion. I support a woman's right to choose prior to viability. But that is not the issue, because it is the constitutional requirement. Under our substitute, after viability, all procedures are banned with an exception only when life and health are seriously threatened. I have seen the criticisms. I have seen the arguments that, ``Well, a doctor certainly can do his own thing. Who is looking? A doctor can just lie.'' But a doctor who is caught lying--and the mother, the family, a nurse, somebody in the hospital, anybody, anybody can call attention to the fact that he lied--and when he is caught he is subject to perjury charges, $100,000 fine and revocation of his license in the first instance; the second time, permanent revocation of his license--the loss of his ability to practice--and a $250,000 fine. I would be willing to look at any other way with which to ensure that we keep a doctor honest. But I must say, there is no assurance that a doctor is being honest under H.R. 1122. How do we know that a doctor did not perform a dilation and extraction procedure on a woman? How do we know that? He must certify--right? That is the only way we know, if he certifies. Actually, under H.R. 1122, he does not even have to certify, as he must under our substitute. Under H.R. 1122, the doctor must simply assert that the abortion was necessary to save the mother's life if the situation is reported or investigated. Why is it that he cannot lie? Why is it that they are not just as vulnerable to doctors who may try to find a way around the law in this case? Why is it assumed doctors are less likely to lie about a woman's life being threatened than about her health being threatened? Mr. President, I think the Washington Times last Friday had it right. We spare viable fetuses. Our proposal is stricter than the one pending. There are a lot of people who wish to be heard, and I yield the floor. Mr. SANTORUM addressed the Chair.

Mr. DASCHLE. Mr. President, the issue of late-term abortion has been a very troubling issue for a lot of us. For the past 6 or 7 months, I have been making an effort to better understand all of the implications and all of the circumstances surrounding this issue. I am repulsed by the practice of so-called partial-birth abortions, but I am also very sensitive to the extraordinarily personal circumstances that many women face as they face excruciating decisions involving their lives and the lives of their potential children. I was troubled by the votes cast last fall, and indicated at that time that I was going to do whatever I could to see if we could find a compromise. Today, I come to the floor with the realization that I could not find a compromise. What I did do was seek out doctors, constitutional experts, people in virtually every walk of life, who have voiced their opinion about this issue. The conclusion I reached was that rather than a compromise, an entirely different approach may be our best solution, not necessarily saying yes or no to what it was others have advocated with their partial-birth-abortion ban because that is a procedural prohibition. My feeling--and the feeling expressed by many experts from whom I have sought advice--was that the pending legislation, the so-called partial-birth-abortion ban would not stop one abortion. This will not end abortion. This will simply force physicians to use other, equally troubling forms of abortion that I will address in a little while. So my concern was: Could we find a constitutional way with which to address this issue and also find a way to provide a comprehensive ban on abortion? In seeking ways in which to do that, I began with a series of conclusions and considerations that I want to talk about momentarily. First of all, I was amazed to find that, in spite of all the statistics bandied about with regard to numbers, there are very few numbers upon which anybody can base their estimates with any reliability--very, very few. The numbers of the Alan Guttmacher Institute are considered the best and used by the Centers for Disease Control. They report that 89 percent of all abortions occur in the first 12 weeks, that 10 percent of the abortions occur in weeks 13 to 20, that eight-tenths of 1 percent of all abortions occur in weeks 21 to 24, and that six-hundredths of 1 percent of all abortions occur in the final weeks beyond that. Those aren't my figures. They are the most legitimate estimations based upon the available evidence and the statistical data which is used by the Centers for Disease Control. So that is one question. When do abortions occur? The answer by the Guttmacher Institute is this: 89 percent occur in the first 12 weeks. The real issue, in my view, is not which procedure ought to be outlawed, because I find, as I have already indicated, the so-called partial-birth abortion of viable fetuses to be absolutely abhorrent, as I find other abortion procedures. The question is when, and under what circumstances, should the Government restrict abortion? It seems to me that really is what is going to cause us to deal with this issue in a way that will solve the problem and not simply force it into another context. When and under what circumstances should the Government restrict abortion? The Supreme Court has ruled on this matter on a number of occasions. They have already given us guidance that they require us to follow, if we are going to be within the constitutional parameters in answering the question that I just asked. Obviously, Roe versus Wade is the basis upon which all decisions have subsequently been made, and Roe versus Wade simply asserts that a woman's decision whether or not to terminate her pregnancy is protected by the Constitution. There have been proposals to change the Constitution in that regard, and I know some of my colleagues support a constitutional amendment to overturn Roe versus Wade. But that isn't the issue today. Colautti versus Franklin in 1979 further clarified Roe versus Wade. The Court said, ``A fetus is considered viable if it is potentially able to live outside the womb, albeit with artificial aid.'' Why is that decision important? That decision is important because in 1973, the Court ruled that it was really on the basis of trimesters that we would make some decisions with regard to a woman's right and that it was within the first two trimesters--chosen to approximate the transition at viability--that a woman had a right during those first two trimesters to make the decision, and after that it would be up to the States to decide what limits they would impose on a woman's right to choose, because at that point there was clearly the possibility that a fetus could live outside the womb. They clarified the definition of viability in Colautti. They built upon it. They created a new set of criteria by which to make that decision in 1979. They said now with technology, viability is not something that neatly falls into the categories of trimesters. Then in 1992, in Planned Parenthood versus Casey, the Court redefined the point at which the States could restrict abortion by incorporating the viability definition. The Court clarified the constraints and the circumstances under which a woman can consider an abortion. They have already decided now that the States may restrict abortion after viability. Now the question is, Are there any other circumstances? Well, in Casey the Court ruled that there can be a prohibition as long as it does not place ``a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.'' What do they mean by that? Basically they said if a fetus is viewed to be nonviable, you cannot put obstacles in the place of a woman. Viability is determined not only, of course, by time but also by the condition of the fetus. So in cases throughout the 1970's, 1980's, and 1990's, the Court has made it very clear what it is they intend to do with regard to protection of the fetus as well as protection of the mother. Viability then--based upon the decisions made by the Court--is simply the ability to sustain survivability outside the womb with or without life support. If a fetus can live outside the womb with life support, that fetus has to be protected--has to be protected. So our amendment very clearly says, in findings that I will read in a moment, it shall be the policy, the determination of this country, that we must make every medically appropriate effort to protect a viable fetus. That viability, as I said a moment ago, occurs between the 23d and the 28th weeks. Who determines viability? I have heard people say, ``Well, abortionists determine viability.'' Abortionists. But we all know that to be a pejorative term. Of course abortionists may determine that. But a high-risk ob/gyn determines that, too. The question is, What is the alternative to that? What is the alternative to a doctor making the determination of viability? Based on the medical evidence, the medical information available in their best judgment, is a fetus viable? That is what the Court requires. That is what the Supreme Court rulings were all about: protecting viable fetuses after defining the concept of viability. So the key questions posed by the bill that is pending seem to me to be, Should just one or all post-viability abortion procedures be banned given what the Court has ruled? Should it be just one, or should it be all of them? Should a mother's health be protected throughout pregnancy? Should that have any consideration at all? Should a woman's constitutional right to choose before viability be preserved? Those seem to me to be pretty fundamental questions that this debate brings about. I think it is a legitimate, a very fair, an understandable debate around which there are very deeply divided opinions. But those are the questions that I think are the most significant as we debate the legislative options we are debating right now. So, Mr. President, my proposal, and the proposal cosponsored by a number of my colleagues on both sides of the aisle--not seeking again to compromise but to provide a different approach--simply does this. S. 6, or H.R. 1122, bans one procedure that I believe ought to be banned. I personally believe it ought to be banned. Our alternative bans all procedures. S. 6, because it doesn't distinguish between pre- and post-viability, in my view--and because it doesn't address a woman's health at all--in my view would be ruled unconstitutional. What we have attempted to do is to recognize and to respect constitutional findings of the Supreme Court, to say that present viability--I must add I believe viability could conceivably be reached at less than 23 at some point in the future. So I believe it is a very honest way with which to determine on a timeline when a woman's right to choose ought to end in terms of being the sole constitutional consideration. But right now it is viewed to be 23 weeks, well into the 6th month. But we preserve the constitutionality by ensuring that a woman's right is respected as the Court has required. We also said that there are circumstances involving health in very, very extraordinary circumstances, even addressed by the AMA, that ought to be considered. So, Mr. President, those are the two approaches that we have pending now this afternoon. According to the Guttmacher Institute, 99 percent of the abortions are performed within the first 20 weeks. The right to choose is protected. Viability comes at week 23, approximately. The alternative protects the fetus after that period of time. H.R. 1122 and S. 6 ban abortion using that procedure only--before amd after viability. So from a timeline point of view, in that time before viability, we protect the right of the mother to choose, as the Court requires. What about after viability, because this is really the crux of the whole debate? What do we do to protect a viable fetus? This is what troubles me perhaps the most about where we are with regard to S. 6. We have seen the procedure graphically depicted, and I think that graphic depiction clearly compels one to want to respond in a way that says we have to end it, in some way. I have not chosen this afternoon to depict the alternatives on similar charts. (Mr. HUTCHINSON assumed the chair.)

Mr. DASCHLE. Mr. President, for the information of all Senators, it is my understanding we have 5 hours of debate to be divided evenly, is that correct, beginning at 2:30?

Mr. DASCHLE. Mr. President, I have an amendment at the desk and I ask for its consideration.

Mr. DASCHLE. Mr. President, how much time remains on each side?

Mr. DASCHLE. Mr. President, how much time do I have remaining?

Mr. DASCHLE. I yield 5 minutes to the Senator from Washington.

Mr. DASCHLE. Let me respond briefly to the distinguished Senator from New Hampshire prior to the time I yield time to the Senator from Louisiana. He asked the question, why not allow a child to live? And my answer is that is exactly what we want to happen. On page 3 of the bill we say: Even when it is necessary to terminate a pregnancy to save the life or health of the mother, every medically appropriate measure should be taken to deliver a viable fetus. Termination of a pregnancy does not necessarily mean abortion. We want to provide the opportunity for that child to live. And on page 3 we assert that. On page 4: Abortion of a viable fetus should be prohibited throughout the United States unless the woman's life or health is threatened, and even when it is necessary to terminate the pregnancy every measure should be taken, consistent with the goals of protecting the mother's life and health-- Which is the constitutional requirement-- to preserve the life and health of the fetus. On page 3 and on page 4 of the bill we assert that as unequivocally as possible. Now, he indicates that this is the findings. Well, the findings are designed to instruct the Court on how to interpret the law. That is what the findings do. There is no more appropriate place than in the findings to tell the Court this is how we want you to interpret whether or not a doctor is in compliance with the law. I would be more than ready to state that assertion on every page of the bill if it would make my colleague from New Hampshire more confident that the intent of our legislation is to do just as I have asserted. But this is the language in the bill. We want the child to live. Now, with regard to permitting abortions in the seventh, eighth, and ninth month, I find it ironic that anybody supporting H.R. 1122 would use that as a criticism of our amendment because that is exactly what the partial-birth abortion ban does. It allows abortions. It allows dilation and evacuation. It allows induction. It allows hysterotomies. It allows abortion. H.R. 1122 is banning only one procedure here. They are not banning abortion with their bill. We, by contrast, ban them all. So I hope that no one would cite that as a reason to oppose our amendment. I yield 10 minutes to the Senator from Louisiana.

Mr. DASCHLE. Mr. President, reserving the right to object, I have a request for 45 minutes of time that I would be willing to lock in, but I think that would mean a slight difference in the amount of time allocated to both sides. So with the understanding that I could have 45 minutes, I have no objection.

Mr. DASCHLE. I listened with great interest to the distinguished Senator from Ohio. He mentioned Dr. Hern's remark that he would use life or grievous injury. That was his term, life or grievous injury as a reason to continue an abortion practice. I cite his remark because, of course, H.R. 1122 uses life as a reason, justifiably, to allow the late-term abortion, the dilation and extraction method that the bill otherwise prohibits from being used. So, if Dr. Hern would use health, he would use life, as he indicated, making meaningless the language in H.R. 1122, as well. I just hope we apply the same standards to both bills in our debate as to what the efficacy of language will be. Indeed, if people are going to find loopholes, they will find them in H.R. 1122, as in our bill. But, again, I reiterate that Dr. Hern, with our language, will go to jail, will go to jail. I yield 10 minutes to the distinguished Senator from Maine.

Mr. DASCHLE. Mr. President, I yield 15 minutes to the Senator from Illinois.

Mr. DASCHLE. As we discussed last year during the debate over mental health parity, most of us now realize that there is a connection between mental and physical illnesses. They are not mutually exclusive. Women with serious psychiatric diseases who risk psychotic breaks that would leave them nonfunctional may have physical manifestations of those psychiatric conditions. If such physical manifestations take the form of severely debilitating impairments, they would be covered under the health definition. I do not know if any cases would fall under that strict standard, but we cannot anticipate every medical circumstance.

Mr. DASCHLE. The alternative does not prohibit a State that already has a postviability ban from retaining its State law. Especially in a State such as Maryland, where the people decided that the health definition you outlined was the most appropriate way to deal with women's health, States should be allowed to either retain their own laws, or enact this alternative. We believe we have provided an appropriately clear and tight definition. States with even more restrictive laws may disagree, and we do not preempt their laws, either. The alternative would not displace any comprehensive State postviability abortion bans, in whole or in part, currently in effect. The bipartisan alternative would not displace any procedure-specific restrictions or any other abortion-related State statutes. However, if a State has no comprehensive postviability ban in effect--either because none has been enacted or because a ban has been repealed or invalidated by the courts--the bipartisan alternative would take effect in that State. The effect of the bipartisan alternative is to ensure that there is a postviability abortion ban in effect in every State.

Mr. DASCHLE

Mr. DASCHLE. Mr. President, I want to take this opportunity to clarify a statement I made last week with respect to the upcoming battle to protect and extend the ethanol tax incentives. I want to make clear that I do not think there is any room to compromise on the existing tax incentives prior to the year 2000. Many ethanol plants have made investments based on the expectation that those incentives will be available in their current form until 2000. Congress should not change those incentives or jeopardize in any way those existing plant investments. Having said that, I appreciate that some will argue that the ethanol incentives should be allowed to expire in 2000. My response to them is that the Nation will continue to benefit in some very significant ways in the 21st century from new entrants into the industry and expanded use of clean burning ethanol and its ether. By encouraging billions of dollars of investment in commercial scale plants, the tax credits have promoted major technology advances and many more improvements are on the brink of commercialization. These benefits justify some level of continuing support. On the other hand, to my fellow industry supporters, I suggest that we need to recognize that the tax incentives are nearly 20 years old and should be reviewed for possible constructive changes. In extending the incentives beyond 2000, we should be willing to take a critical look at the incentives to determine if they should be modified to better achieve the objectives of the ethanol industry and the country. During this debate, my first priority will be to ensure the continued growth and development of small ethanol plants that have been responsible for diversification of the ethanol industry and rural economic development. Those plants represent the future for economic growth in rural America and will help keep the benefits of value-added agricultural processing in the rural communities from which those products originate. Ethanol and its ether, ETBE, have never played as large a role as I believe they can and should play in cleaning up America's air or reducing its dependence on foreign energy through the reformulated gasoline program. We need to explore how the tax incentives can be restructured to make ETBE more price-competitive with MTBE, so that ethanol can play a greater role in the reformulated gasoline market. Finally, Congress should be willing to provide sufficient encouragement to the rest of the ethanol industry to allow it to continue converting corn and other grains into high grade liquid fuel and proteins, generating much needed rural employment and investment, and improving air quality. This can be done while still limiting our tax expenditures and contributing to a balanced Federal budget. Since its inception in the late 1970's, the domestic ethanol industry has helped reduce our dependence on foreign oil, create rural jobs and greater farm income, and provide consumers with a choice of oxygenated fuels. That is a track record that makes sense for America, and that should neither be discounted nor abandoned. It is my hope that in the near future a constructive dialog can begin in Congress on how to extend the tax incentives in a fiscally prudent and economically effective manner beyond the year 2000. I am committed to that goal.

Mr. DASCHLE

Mr. DASCHLE. Mr. President, today I am introducing legislation that would waive for 1 year penalties on small businesses that fail to pay their taxes to the Internal Revenue Service [IRS] electronically. Last July, millions of small business owners received a letter from the IRS announcing that, beginning January 1, 1997, business tax payments would have to be made via electronic funds transfer. This letter sent shock waves through the small business community in South Dakota. The letter was vague and provided little information on how the new deposit requirement would work. In meetings, letters, and phone calls, South Dakotans posed many questions to me that the IRS letter did not answer: ``How much will this cost my business?''; ``Will I have to purchase new equipment to make these electronic transfers?''; and ``Will the IRS be taking the money directly out of my account?'' As you may recall, this new requirement was adopted as part of a package of revenue offsets for the North American Free-Trade Agreement. The Treasury Department was directed to draw up regulations phasing in the requirement, which will raise money by eliminating the float banks accrue on the delay between the time they receive tax deposits from businesses and the time they transfer this money to the Treasury. All businesses with $47 million or more in annual payroll taxes are already required to pay by electronic funds transfer. The new, lower threshold is estimated to bring 1.3 million small- and medium-sized businesses into the program for the first time. As a result of protests registered by many small businesses, the IRS decided to delay for 6 months the 10-percent penalty on firms failing to begin making deposits electronically by January 1, 1997. Not satisfied with this step, Congress recently passed an outright 6-month delay in the electronic filing requirement as part of the Small Business Job Protection Act of 1996. I strongly supported this amendment. However, I believe that these 1.3 million businesses should be given further time to comply without the threat of financial penalties. Electronic funds transfer may well prove to be the most efficient system of payment for all concerned, including small businesses. Once they learn the advantages of the new system, these firms may well come to prefer it to the existing one, which requires a special kind of coupon and a lot of paperwork. But this is a new procedure, and many small employers are not sure what it will entail. A recent hearing in the House of Representatives documented a series of uncertainties and potential problems accompanying an extension of the electronic funds transfer mandate to smaller firms. The bill I am introducing today would suspend penalties for noncompliance for 1 year, until July 1, 1998. I believe this step is necessary to provide time for small businesses to be properly educated about the easiest, least burdensome, and most cost-efficient way to comply. In my view, whenever possible, the IRS should avoid taking an adversarial approach toward the small business community or, for that matter, any taxpayer. At every opportunity, the IRS should seek to help taxpayers comply with their obligations. I believe that, by removing the threat of penalties for a short while longer, my bill will help the IRS fulfill this important part of its mission. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. DASCHLE

Mr. DASCHLE. Mr. President, on May 14 the Senate approved vitally important legislation to provide sorely needed aid to victims of the recent weather-related disasters throughout the country, including South Dakota. It is critical that this legislation be enacted as soon as possible so that residents of disaster-stricken States can get on with the process of recovering from the loss of property and livestock. I am concerned that controversial riders on this bill, including the automatic continuing resolution and the provision related to the implementation of R.S. 2477 by the Interior Department, could, if included in the final conference report, make enactment of the bill impossible and thus delay needed aid to disaster victims. The controversial Interior provision, over which Secretary Babbitt has said he will recommend a veto, blocks recent efforts by the administration to close a loophole in the mining laws that allow roads to be constructed in national parks and other sensitive Federal lands. Many Senators have gone on record that the administration should have the ability to protect our public lands from unnecessary and environmentally destructive road construction, and an amendment offered by Senator Bumpers to strip the R.S. 2477 provision from the supplemental lost by a vote of only 49-51, drawing considerable bipartisan support. I urge the conferees to drop this and other controversial provisions from the bill during the House-Senate conference.

Mr. DASCHLE

Mr. DASCHLE. Madam President, the Senate today is being presented with an opportunity that is as rare as it is important. For the second time in less than 3 weeks, the Senate is being asked to give its advice and consent on a major arms control treaty: the flank agreement to the Conventional Forces in Europe treaty. Late last month, the Senate had placed before it the Chemical Weapons Convention [CWC]. After much debate, the Senate resoundingly rebuffed several attempts by the treaty's opponents to scuttle it, and eventually passed CWC with the support of 74 Senators. Now many have questioned the length to which CWC opponents went in their efforts to kill or delay Senate consideration of this treaty. I share some of those concerns. However, in the end, when the Senate was finally allowed to take up the CWC treaty, I would argue that the ensuing floor debate on the CWC treaty represented the Senate at its best. Senators discussed honest disagreements on issues directly related to the CWC treaty, carefully weighed those discussions, and finally voted up or down on those issues and, ultimately, the treaty itself. In short, during the actual floor debate of the CWC treaty, we saw the Senate acting in a responsible and exemplary fashion. I am confident that if we had this same kind of debate on the CFE treaty, we would see the same result. In fact, the margin would probably be significantly greater for CFE than for CWC. I have listened carefully to the comments of my fellow Senators on for their views on this important agreement and have yet to hear a single Senator voice his or her opposition to the CFE treaty. This was true before the Foreign Relations Committee attached 13 CWC-related conditions and it is especially true after. As a result, Senate support for the CFE agreement itself probably exceeds the 74 who voted for the CWC. Unfortunately, the Senate is being prevented from considering the CFE treaty in the same fashion we considered the CWC. We are not being allowed to look at just the CFE treaty and issues directly related to it. Instead, the time for Senate consideration of the CFE treaty is likely to be spent largely on a wholly unrelated issue--the ABM treaty and opponents efforts to undermine it. Now, I understand this is an important issue to many members on the other side of the aisle. And, I know that Senators are well within their rights to attach unrelated matters to most types of legislation we consider However, I disagree with the proponents of the ABM condition on the merits and I especially disagree with them on their methods. On the merits, the administration's lawyers argue persuasively that the Constitution assigns the exclusive responsibility to the President to determine the successor states to any treaty when an original party dissolves, to make whatever adjustments might be required to accomplish such succession, and to enter into agreements for this purpose. Increasing the number of states participating in a treaty due to the dissolution of an original party does not itself constitute a substantive modification of obligations assumed. This is the view of the administration's lawyers. This is also the view of the nonpartisan Congressional Research Service in a legal review they conducted last year. As for their methods, I think it is both unfortunate and short- sighted to use a treaty that is in our national security interests as a vehicle for advancing a totally unrelated political agenda. The principal sponsors of this condition have previously made no secret of the fact that they would like to see the United States walk away from the entire ABM treaty and immediately begin spending tens of billions of dollars to build a star wars type missile defense. With this act, they have now revealed the lengths they are willing to go to force their views on this Senate and this administration. Nevertheless, that is what has been done. Senators are now faced with a difficult choice: vote for this treaty in spite of the unacceptable ABM condition or against it because of the ABM language. This is an extremely close call for many of us. In the end, Madam President, we must support this treaty. We must do so for two reasons. First, the treaty is still fundamentally in our strategic interest. Failure to pass this treaty now could unravel both the CFE agreement as well as any future efforts to enhance security arrangements in Europe. Second, the administration, which must ultimately decide how to deal with the objectionable ABM condition, has indicated that we should vote for this treaty now and let them work out what to do about this provision later. It is for these reasons that I cast my vote in support of this treaty and urge my colleagues to do the same.

Mr. DASCHLE

Mr. DASCHLE. Mr. President, today I am introducing legislation that would waive for 1 year penalties on small businesses that fail to pay their taxes to the Internal Revenue Service [IRS] electronically. Last July, millions of small business owners received a letter from the IRS announcing that, beginning January 1, 1997, business tax payments would have to be made via electronic funds transfer. This letter sent shock waves through the small business community in South Dakota. The letter was vague and provided little information on how the new deposit requirement would work. In meetings, letters, and phone calls, South Dakotans posed many questions to me that the IRS letter did not answer: ``How much will this cost my business?''; ``Will I have to purchase new equipment to make these electronic transfers?''; and ``Will the IRS be taking the money directly out of my account?'' As you may recall, this new requirement was adopted as part of a package of revenue offsets for the North American Free-Trade Agreement. The Treasury Department was directed to draw up regulations phasing in the requirement, which will raise money by eliminating the float banks accrue on the delay between the time they receive tax deposits from businesses and the time they transfer this money to the Treasury. All businesses with $47 million or more in annual payroll taxes are already required to pay by electronic funds transfer. The new, lower threshold is estimated to bring 1.3 million small- and medium-sized businesses into the program for the first time. As a result of protests registered by many small businesses, the IRS decided to delay for 6 months the 10-percent penalty on firms failing to begin making deposits electronically by January 1, 1997. Not satisfied with this step, Congress recently passed an outright 6-month delay in the electronic filing requirement as part of the Small Business Job Protection Act of 1996. I strongly supported this amendment. However, I believe that these 1.3 million businesses should be given further time to comply without the threat of financial penalties. Electronic funds transfer may well prove to be the most efficient system of payment for all concerned, including small businesses. Once they learn the advantages of the new system, these firms may well come to prefer it to the existing one, which requires a special kind of coupon and a lot of paperwork. But this is a new procedure, and many small employers are not sure what it will entail. A recent hearing in the House of Representatives documented a series of uncertainties and potential problems accompanying an extension of the electronic funds transfer mandate to smaller firms. The bill I am introducing today would suspend penalties for noncompliance for 1 year, until July 1, 1998. I believe this step is necessary to provide time for small businesses to be properly educated about the easiest, least burdensome, and most cost-efficient way to comply. In my view, whenever possible, the IRS should avoid taking an adversarial approach toward the small business community or, for that matter, any taxpayer. At every opportunity, the IRS should seek to help taxpayers comply with their obligations. I believe that, by removing the threat of penalties for a short while longer, my bill will help the IRS fulfill this important part of its mission. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.