Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to introduce a bill with Senators Domenici, Boxer, and Dayton to allow youth service and conservation corps to partner with public land management agencies to restore and protect public lands threatened by severe fire. I have dubbed this public-private partnership the Healthy Forests Youth Conservation Corps. Last year, I authored a similar provision that was included in the Senate version of the Healthy Forest legislation. Unfortunately, this provision was stripped out of the bill before it was signed into law. First, this bill aims to help Federal, State, and local governments implement priority projects using the cost-saving resources of youth corps. It is estimated that youth corps generate $1.60 in immediate benefits for every dollar in costs. This figure is important given the great need and cost associated with fighting fires. Every year, land management agencies are charged with conserving, protecting, and maintaining millions of acres of public land. This is a daunting task that requires an incredible amount of human and material resources. For instance, the Federal Government, alone, is responsible for overseeing 689 million acres of this land. Last year, five Federal agencies reported spending $1.6 billion in 2002 on fire fighting suppression efforts--a whopping $300 million more than the previous record. To fight those fires, 28,000 fire and support personnel were activated--the maximum civilian resources available in the Forest Service on top of the 600 Army troops, and 950 foreign firefighters who joined in the effort. As an example of what can happen in one State, consider last year's catastrophic wildfires in southern California. Before they were contained, the deadly fires of last fall scorched a total of 738,158 acres, killed 23 people, and destroyed approximately 3,626 homes and thousands of other structures--amounting to the most costly and devastating fire ever to hit California. The insurance payouts alone will cost more than $3 billion, with public expenditures to fight the fires and recover from them running into the hundreds of millions of dollars. And those statistics make no mention of the resources expended to fight fires in other States. I want to prevent this type of catastrophe in the future. That is why I was an ardent supporter of the Healthy Forest Restoration Act that was signed into law last year. I also believe that we must use every resource at our disposal to meet this challenge. In my opinion, youth service and conversation corps can play a significant role in reducing the physical and financial strain that public land management agencies bear and help protect our Nation's public lands from wildfires. Secondly, this bill allows young people, particularly those youth who are people of color, low income, or are at high risk of dropping out of school, to integrate themselves into their communities and to learn skills that could lead to jobs or a greater interest in higher education in the future. I have seen firsthand the benefits that youth corps bring to their communities and the difference that the work can make in the lives of at-risk youth. In 1983, I founded the first urban youth corps as mayor of San Francisco, and during that time I saw a great improvement in the quality of life of the corps members and of the city itself. When we first began the program, we ran it on a million-dollar budget employing 36 disadvantaged young people ranging in age between 18 and 23 years old who needed some direction, wanted a challenge, and wanted to make themselves socially useful. That first year, we paid corps members $3.35 an hour to repair bathrooms in affordable housing for senior citizens and ex-offenders, build a park in Hunter's Point, clear scotch broom from the Twin Peaks hillside, and fix up Alcatraz Island. And in the 21 years since the program began, it has grown into a multisite, multifaceted agency that engages more than 500 young adults annually who have completed over 3.5 million hours of community service. It has given thousands of corps members a sense of personal pride, helped to connect them with their community and see for themselves that hard work pays off. I started the San Francisco Conservation Corps to help young people break out of the cycle of poverty and crime and improve their job skills by giving them guidance and support through labor-intensive activities. For this same reason, I am introducing this bill with the hope that the success of the San Francisco Conservation Corps can be duplicated nationwide. Specifically, this bill does the following: It authorizes the Agriculture and Interior Secretaries to enter into contracts or cooperative agreements with existing State, local, and nonprofit youth conservation corps to carry out land management initiatives on public lands. It directs the Secretaries to give priority for projects that will reduce hazardous fuels on public land, restore land located in near municipal watersheds and municipal waters supplies, rehabilitate land affected or altered by fire, assess lands afflicted or imminently threatened by disease or insect infestation, work to address windthrown land or at high risk of reburn, provide emergency assistance and disaster relief to communities. It allows the Secretaries to grant, at their discretion, noncompetitive hiring status for corps alumni for future Federal hiring. It authorizes $25 million for the alliance for fiscal year 2005- fiscal year 2009. I know this program will not take all of the burden off public land management agencies as they work to protect and restore public lands, and I know this program will not reach every disadvantaged young person in need of guidance and support. But it is a start and I urge my colleagues to join me in my efforts.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, how much time does the other side have remaining?

Mrs. FEINSTEIN. Mr. President, may I briefly suggest the absence of a quorum.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mrs. FEINSTEIN. I thank the Chair. Mr. President, I wish to respond to some of the concerns and complaints of the distinguished Senator from Ohio about our substitute amendment. Let me take on his allegation that this substitute does not provide a punishment for harming a child. In fact, it does. It clearly states that the interruption of the normal course of the pregnancy relates to injury to the fetus. So there is a penalty for harm. Secondly, he stated my amendment would not provide any penalty for ending a pregnancy; that it was a legal fiction in that sense. I think this is clearly a misunderstanding of the plain text of our amendment. We explicitly create a separate offense for interrupting or ending a pregnancy, and we explicitly state the penalty for that offense is the same as if the crime had resulted in the injury or death of a mother. That is explicit. So the intent is clear. I think quibbling about whether the language is perfect, the amendment does exactly what the underlying bill does. I could have cleared that up with a modification, but the Senator would not let me send a modification to the desk, which in terms of just sheer congeniality is rather surprising because that could have been made crystal clear to everyone. So I firmly believe our amendment does exactly the same thing as the DeWine amendment, but it does not do something his amendment does, and that is create life at the point of conception. His use of the words ``child in utero'' as opposed to the California statute's use of the words ``or fetus'' make a huge difference in the law legally. Once again, I think that is clear. The bottom line is we believe the intent and the crafting of this bill is very clear. We do not create a child in utero. We try to avoid getting to the point where life is defined. We say that if the pregnancy is intentionally terminated and specific damages are done to the fetus, it is punished either through manslaughter in a second charge or murder in a second charge. I think the language is very clear. I think it is nitpicking to say it is not. I can change it, but I am not allowed to change it. We have the modification, but we are not allowed to send the modification to the desk. I believe Members can vote on this amendment and know clearly they are assessing the same penalties for the same crimes as the underlying bill does. The only difference is we do not decide in our bill when life begins. Let me read a couple of editorials and statements that have come out in recent days. There is one editorial this morning in the Los Angeles Times. I would like just quickly to read one paragraph: The Senate is likely to vote today on a bill intended largely to score points in the endless, wearying abortion debate. The proposed Unborn Victims of Violence Act defines a child in utero as a member of the species homo sapiens, at any stage of development, who is carried in the womb. In other words, the child exists at the moment of conception. The House passed similar legislation last month. As with nearly every aspect of the abortion debate, Americans are deeply divided over when human life begins. However courts in most States generally accord more rights to a fetus considered viable outside the womb. DeWine's bill, S. 1019, offers a sweeping declaration that ignores prevailing scientific views and the national legal consensus. True, his bill specifically bars prosecution for abortion, but its effect, as DeWine intends, would be to give one side a new legal bullet in the broader abortion wars. That is clear. I will go on. The Los Angeles Times is not the only editorial page that believes that. I indicated earlier this is true of an editorial in the Philadelphia Inquirer: It is so easy to see how a federal unborn victims law, coupled with unborn victims' laws in 29 States, will form the basis of a new legal challenge to Roe v. Wade, a landmark case that gives women the right to terminate certain pregnancies. If a fetus who dies during a crime is a murder victim, why, then, isn't abortion murder? From the Buffalo News: Passage by House Republicans of a bill that treats an attack on a pregnant woman as separate crimes against her and her unborn child is at heart an attempt to erode abortion rights. It's a disingenuous and misguided bill and the Senate should make sure it goes no further. That is the Buffalo News. The New York Times, April 25. This is 2001. Packaged as a crime fighting measure unrelated to abortion, the bill is actually aimed at fulfilling a long-time goal of the right-to-life movement. The goal is to enshrine in law the concept of fetal rights equal to but separate and distinct from the rights of pregnant women. Another editorial of the New York Times: The bill would add to the Federal Criminal Code a separate new offense to punish individuals who injure or cause death to a child who is in utero. The Washington Post, October 2, 1999, What makes this bill a bad idea is the very aspect of it that makes it attractive to its supporters, that it treats the fetus as a person separate from the mother though that same mother has a constitutional right to terminate her pregnancy. This is useful rhetorically for the pro-life world, but it is analytically incoherent. The Blethen, ME, newspaper: First considered in 1999, the bill purports to create new Federal crimes for the intentional harm or death of a fetus or unborn child. But, no matter how much supporters deny it, the bill's real intent is to undermine women's reproductive choices. If the bill is passed and signed into law, it would weaken the prudent and pragmatic decision handed down in Roe v. Wade. In my remarks, I have tried to show that this is a concerted effort. It need not be so. You can attach the same penalties for the same crimes, as our substitute does, without getting into the debate of where life begins. This bill chooses to get into the debate of where life begins and it defines life beginning at conception. It does so in a Federal criminal statute. It is one step in the building blocks of statutes that will constitute the ability to demolish Roe v. Wade. I think every Member of this body who is pro-choice should vote against the underlying bill and for this amendment because in this amendment, without creating the separate person at conception, we establish the penalties for interruption or termination of a pregnancy. Those penalties are the same--same for murder, same for manslaughter, same for attempted murder, same for attempted manslaughter. Again, I point out that in California what the State did 34 years ago was essentially amend the murder statute. By amending the definition in the Penal Code section 187, they provided a new definition of murder which said: Murder is the unlawful killing of a human being, or a fetus with malice aforethought. That is the bill under which the Laci Peterson case will be brought to court. It is a different idea because it clearly says that it is a fetus. Additionally, there is information from those who wish to continue this pursuit to make a fetus a human life, to make an embryo a human life, that this is a concerted strategy aimed at weakening Roe v. Wade. What we have tried to do is mimic the House bill with respect to the penalties but connect it to the termination of a pregnancy and thereby avoid the distinction of exactly when life begins for the purposes of statute law, in this case criminal statute law, and therefore avoid the problem. I have indicated, from legal scholars, where they believe this will undermine prosecutions in this situation because they will encourage peremptory challenges of individuals who may have strong beliefs in choice and, therefore, not one likely to recognize that an embryo, or a day pregnancy, or a week pregnancy, or a month pregnancy is, in fact, a living being subject to criminal sanctions if their rights are violated. It is a complicated issue. But it is a significant issue. It is an important issue. The more I look at it and see the strategy of the anti-choice movement, the more I see that if you can establish a beachhead of rights in Federal criminal law here, and another statute there, and in a third statute somewhere else, you then begin the march to the Supreme Court in an attack on Roe. Roe sets up a trimester system giving the woman total rights in the first trimester, and then the State the right in the second and third trimester to intervene in certain cases, which has been the case in many State laws that have been passed. You now give the Supreme Court the ability to begin to say: ``It is in law that the embryo has certain rights'' and, therefore, forms the bulwark of the attack on Roe. You also do something else insidious. I think you very much intervene in stem cell research. Stem cell research, and a good deal of the most auspicious of that research, deals with embryonic stem cells. If you have a law that says an embryo or a zygote is, in fact, a human life, then it is murder if you use that embryo for stem cell research, just as it becomes murder if that embryo is harmed or rejected in the course of an attack on a woman. We avoid all of that. We simply say termination of a pregnancy, and termination of a pregnancy in the course of a criminal attack creates a second charge, and that second charge carries with it the same penalty as the original charge against the woman herself would carry. That is the clear intent. I regret that the Senator would not allow me to modify my amendment. I can never in 12 years remember any Senator being refused the right to modify an amendment, but perhaps we are playing by new rules these days. I know what goes around comes around in this body. I regret that. But I believe on its face our substitute amendment is clear, it is definitive, it will stand the test of time, and it will prevent what we hope to prevent, which is the first major law which decides when life begins. I yield the floor and reserve the remainder of my time.

Mrs. FEINSTEIN. Madam President, I yield as much time as she requires to the Senator from California, Mrs. Boxer. She was here a moment ago.

Mrs. FEINSTEIN. Madam President, I would like to call up amendment 2858.

Mrs. FEINSTEIN. I ask unanimous consent the reading of the amendment be dispensed with.

Mrs. FEINSTEIN. Mr. President, I yield 10 minutes to the Senator from New Jersey.

Mrs. FEINSTEIN. Mr. President, I reserve the remainder of my time.

Mrs. FEINSTEIN. Madam President, I agree with virtually everything the Senator from Ohio has said. Although there are many State laws which do take into consideration a fetus, it is true that the Federal laws, which would impact only those on Federal property, are silent. I am in complete concurrence with everything the Senator has said. I have had the privilege of working with him, so it is a delight for me to be able to discuss and debate this issue with him. The substitute amendment I have called up is on behalf of Senators Bingaman, Boxer, Corzine, Kennedy and Lautenberg. I would like to make clearer a couple of places in that amendment. I ask unanimous consent to send a modification to the desk.

Mrs. FEINSTEIN. I hear the objection. I am rather surprised by the objection. It is generally common courtesy to allow a Senator to amend his or her amendment. However, I believe our amendment is clear on its face. I would like to point out that since 2000, in the Senate, there has been no hearing on this amendment and no opportunity for the Judiciary Committee to make corrections. This amendment is on the floor as a rule XIV. I am very disappointed the Senator will not allow me to make a modification. For the record, let me simply state that I was proposing a minor change designed to further clarify what I believe to be the clear intent and application of our amendment. The bottom line is this: Even without the technical changes, our amendment is clear. We include the same structure, the same crimes, and the exact same penalties as the DeWine bill. The only real difference between our amendment and the DeWine bill is that we do not attempt to place into law language defining life as beginning at conception--beginning with an embryo. Just to clarify for the purpose of giving judges more legislative history with which to interpret our amendment, let me be clear about the two provisions at issue. The first modification concerns section (c)(2) of our amendment which reads ``For medical treatment of the woman or matters relating to the pregnancy.'' This language simply tracks the DeWine language and the House bill language. I believe it is quite clear what we meant by this was to exempt medical treatment of the woman or any other medical treatment related to the pregnancy. The second criticism or modification was that section (c)(2) which applies to intentional crimes against the pregnant woman is awkwardly worded and thus vague. The intent of the section is also clear. Our amendment and the House and the DeWine bill would punish an individual who intentionally ends a pregnancy in accordance with the murder, manslaughter, or intent statutes already on the books. The level of penalty would be determined by a judge and would be based on the level of intent. For instance, punishment under the murder statute would require malice. Punishment under the manslaughter statute would not. But either way the intent is clear. I believe the only real reason to raise these issues is to try to defeat our amendment without addressing the underlying fact that our amendment contains the same law enforcement goals as the DeWine and the House bill, but without injecting a debate over a woman's right to choose into the equation. This issue is not as simple as it seems at first glance. Everyone in the Senate wants to accomplish the same goal--punishing those who, by attacking or killing a pregnant woman, deprive families not only of the mother but also of the joy to help raise the child yet to be born. Punishing those who end a pregnancy and thus end the potential life experience, all of the hopes and dreams embodied by that pregnancy and the child to come, is an important advance in Federal criminal law. But here is where it gets more complicated. The House bill before us, the DeWine bill, now takes the position in law that life begins at conception. This, then, involves this bill directly into a woman's right to choose--an issue that need not be raised and should not be raised in this debate. Although the text of the amendment itself technically provides an exception for abortion, experts on both sides of this issue agree the language in the bill will clearly place into Federal law a definition of life that will chip away at the right to choose as outlined in Roe v. Wade. I hope to make that crystal clear as I go on. The Philadelphia Inquirer in its editorial yesterday put it succinctly by saying: If passed and signed, as promised by President Bush, the Federal law would be the first to recognize unborn children at any stage of development as victims with legal rights separate from those of their mothers. . . . It's so easy to see how a Federal unborn victims law, coupled with unborn victims laws in 29 States, will form the basis of a new legal challenge to Roe v. Wade, the landmark case that gives women the right to terminate certain pregnancies. If a fetus who dies during a crime is a murder victim, then isn't abortion murder? That is the Philadelphia Inquirer editorial of yesterday. That is why I offered this substitute amendment. I think when I am finished describing the differences between our amendment and the underlying legislation, it will become crystal clear that these two measures accomplish the same goal in terms of criminal justice and the same goal in terms of deterrence. The difference between the two measures--the only difference--is our substitute does not include a new unprecedented definition of when life begins. The bottom line is this: It is unnecessary to include a definition of when life begins in this legislation, and including such language could, and I believe will, make it much more difficult to obtain convictions in these cases. The substitute amendment I offer today essentially provides that if a perpetrator of an attack on a woman commits certain violent Federal crimes against that woman and harms or ends her pregnancy, a prosecutor can charge the perpetrator with the underlying Federal crime first but can also charge the perpetrator with harming or ending her pregnancy and effectively harming or killing another potential life. How is this different from the DeWine bill? It is not different at all. The DeWine bill provides exactly the same provisions. A prosecutor can charge two crimes--one for the underlying attack on the woman and one for the termination of the pregnancy. The penalties in the DeWine bill are identical to the penalties in our amendment. For instance, the DeWine bill provides that if the separate offense results in the ending of the pregnancy, the penalty is identical to the penalty for taking an adult's life. The Feinstein substitute is the same. The DeWine bill says the maximum penalty for ending a pregnancy is a life sentence, and the maximum penalty for harming that pregnancy is a 20-year sentence. The Feinstein substitute is the same. Neither bill allows for the death penalty and neither bill applies to conduct to which the pregnant woman has consented. The simple truth is this: Whichever bill passes in the end, a prosecutor will be given exactly the same ability to charge a defendant. The crimes are the same. The penalties are the same. Everything will be the same except a few simple words that inject the abortion debate into this issue by clearly establishing in criminal law for the first time in history that life begins at the moment of conception. I contend that if this result is incorporated in law, it will be the first step in removing a woman's right to choice, particularly in the early months of a pregnancy before viability. As we all know, the question of when life begins is a profound and a deeply divisive one. So I don't believe we should be addressing that issue here today--without a hearing since the year 2000, without expert testimony, and without need to do so. But, more importantly than that, this language unnecessarily turns a simple law into a controversial one and, most importantly, this language could make it more difficult for prosecutors to obtain a conviction for the second defense of harming or ending a pregnancy. I will describe why later. It is possible that some pro-choice jurors might refuse to convict simply because the language of the law refers to an unborn ``child in utero''--that is a quote, ``child in utero,'' that is bill language-- when the victim may have only been 1 week or even 1 day pregnant. An embryo in this bill becomes a person for the purpose of Federal criminal sanctions for the first time in America's history. That is the significance of this bill. This substitute allows jurors to look at evidence and the law and it doesn't force jurors to grapple with the complicated and controversial issue of when life begins. Including language defining the beginning of life is not in any way necessary to the criminal law but, rather, it is only relevant to the abortion debate. Let me show you a statement that I believe reveals the clear intent of this bill. That statement is made by Samuel Casey, executive director and CEO of the Christian Legal Society. This is the intent: In as many areas as we can, we want to put on the books that the embryo is a person . . . that sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection--even protection that would trump a woman's interest in terminating a pregnancy. This will be the first strike against all abortion in the United States of America. This will draw back the veil and, I believe, makes crystal clear what this legislation actually is. This is the key to much of the support for this legislation: Not just adding a new criminal law on the books, but also defining life as beginning at conception in statute here and then in the future, wherever else and however else possible. This is a concerted effort to insert the definition of when life begins into the law wherever possible. Let me give some examples of quotes that again make this very clear. The intention of the antichoice community has been clearly revealed by a Republican strategist by the name of Jeffrey Bell. Here is how he put it: Parental notification rules don't really prohibit anything. They don't ban the act of abortion. But a cloning ban--this is saying that something should be illegal. And if taking [unborn] human life became illegal, that would be a breakthrough. Since Roe, no one has been able to do that. So this, Members of the Senate, is clearly the agenda, freezing the law, any law, in this case criminal law, that life begins at conception. Then, once declared legally, that law becomes the stepping- stone to refuse embryonic stem cell research and to ban abortion. Once the law defines human life as beginning at conception, stem cell research could become murder, abortion becomes murder, even in the first days of a pregnancy. That is where this is going. Please see it. Understand it. Know it. Everyone in this body who believes embryonic stem cell research holds a promise for cures to Parkinson's, for cures to Alzheimer's, for cures to juvenile diabetes, for perhaps spinal cord rupture repair, will have to contend with a statute that has said life begins at conception. So embryonic stem cell research may become murder and abortion in the first trimester becomes murder. That is where this debate is taking us. That is the reason for this bill. The supporters of this bill will say they do not want to undermine Roe, but that is precisely what Nebraska State senator Mike Foley said when he proposed legislation to allow wrongful death suits involving the termination of a pregnancy. Let me quote him. Let me pull back the veil again: We said specifically in our bill that we did not want to challenge Roe v. Wade, and that would not affect abortion in the legal sense. But philosophically, sure, these laws are a challenge . . . If a state can put someone in jail for life because they took the life of an unborn child, then we're clearly saying there is something very valuable there. Why is he saying that? He is saying that because a fetus, even at conception, becomes a person, becomes a human being. Professor R. Alta Charo of the University of Wisconsin further points out how these efforts are aimed at changing the law and how the Supreme Court might rule in future abortion cases. Charo said recently: If you can get enough of these bricks in place, draw enough examples from different parts of life and law where embryos are treated as babies, then how can the Supreme Court say they're not? This is, without question, conscious strategy. This is a professor of law at the University of Wisconsin, pulling the veil back further and exposing this exactly for what it is, a ``conscious strategy'' to say life begins at conception and enshrine it in this Federal law, and then other laws, and then other laws, and then go to the Supreme Court and Roe vs. Wade is struck down. In a CNN interview last May, the distinguished chairman of the Senate Judiciary Committee--and I have had the pleasure of serving on that committee for 12 years--made the following comment: They say it undermines abortion rights. It does undermine it. But that's irrelevant. We're concerned here about a woman and her child . . . The partisan arguments over abortion should not stop at a bill that protects women and children. If that is true, then the Senator from Utah should vote for our amendment because our amendment does exactly the same thing, the same penalties for the same crimes as the House bill. When Justice Harry Blackmun wrote in 1973 the Roe decision, he said: . . . the unborn have never been recognized in law as persons in the whole sense . . . Let me repeat that: ``the unborn have never been recognized in the law as persons in the whole sense.'' What he did by saying that was actually, inadvertently provide a roadmap for the anti-choice people and those who want to undermine Roe and eventually to reverse it. This bill, the underlying bill, is following that roadmap by changing a criminal law in a way which clearly says an embryo can be an individual as a person for the purposes of criminal prosecution. Clearly, this is a concerted effort to codify in law the legal recognition life begins at conception. If we allow that to happen today in this bill or in any bill, we put the right to choose squarely at risk. Roe v. Wade allowed States to claim a legitimate interest in preventing abortion postviability. Many states--and we both know that-- have laws on the books with respect to the third trimester and even the second trimester. If the concept of viability, which means when a fetus can live outside of the womb, gives way to a definition that provides life begins at conception, we could soon see abortion in this country outlawed entirely. Our amendment avoids that problem and focuses only on the need to increase penalties for those who attack pregnant women. There has been a lot of discussion about the tragic Laci Peterson case in my State of California. I have had the pleasure of meeting with Laci's mother, Sharon Rocha, a very fine woman and a woman who I can understand is decimated by what happened to her daughter. Some in the Senate have suggested that this tragedy is evidence of a loophole in Federal law that needs to be closed. However, the House bill and the DeWine bill will have no impact in any way, shape, or form on the Laci Peterson case. The perpetrator of that crime will be prosecuted and punished under current California law and the perpetrators of almost all similar crimes through the country will, in fact, be prosecuted under State laws, not a Federal law, unless the crime takes place on Federal property. In my State of California, the legislature amended California's existing murder statute in 1970--that is 34 years ago--to read as follows: Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. Now, if this were the case, if this were written in Federal law, easy, I would support it in a minute because it draws a distinction, it permits the ``double charge'' that both Senator DeWine and I agree is necessary. But the use of the words ``or fetus'' makes a distinction between a human being and a fetus for purposes of the application of the homicide statute. That is important. And that is the law under which Laci Peterson's alleged murderer is going to be prosecuted. If you look at it, you will see it is completely adequate. The complexity of that case, which continues today, is one that relates to evidence and proof, not a problem with statutes or penalties. The California statute is wholly adequate. So the bill we discuss today would have absolutely no impact on the Laci Peterson case, none. Now, I would like to bring to the Senate's attention a July 10 letter from a Stanford law professor. He goes into the problems of what this law, if passed, could actually do in the courtroom to actual prosecutions and to juries. His name is George Fisher. He is a criminal law expert. He is a former prosecutor. He served as an assistant DA, an assistant attorney general. He has taught criminal law at Stanford Law School since 1995, and he has founded Stanford's criminal prosecution unit. He makes three points. Let me quote him: The Bill's apparent purpose of influencing the course of abortion politics will discourage prosecutions under any future Act. I do not know what motives gave rise to the Bill's use of the expressions ``child in utero'' and ``child, who is in utero,'' but I do know that any vaguely savvy reader will conclude that these terms and the Bill's definition of them were intended by the Bill's authors to influence the course of abortion politics. If the authors of the Bill truly seek to protect unborn life from criminal violence, they will better accomplish this purpose by avoiding such expressions as ``child in utero.'' Better alternatives would refer to injury or death to a fetus or damage to or termination of a pregnancy. Dr. Fisher goes on to say: The Bill's apparent purpose of influencing the course of abortion politics will motivate prosecutors to exclude those prospective jurors who otherwise would be most sympathetic to the prosecution's case. I predict that many or most judges will bar prosecutors and defense counsel from questioning prospective jurors about their views on abortion or about related matters such as their religion, religious practices, or political affiliations. Forced to act largely on instinct, prosecutors may be inclined to exercise peremptory challenges against those prospective jurors who appear to be most sympathetic to the rights of pregnant women. This result clearly would frustrate the Bill's stated purpose of protecting unborn life from criminal violence. He concludes: The Bill's apparent purpose of influencing the course of abortion politics offends the integrity of the criminal law. To anyone who cares deeply about the integrity of the criminal law, this Bill's apparent attempt to insert an abortion broadside into the criminal code is greatly offensive. Now, that is a former prosecutor, a former assistant DA, assistant AG, a professor of law at Stanford Law School--one of the great law schools of our country--and head of the criminal prosecution unit at Stanford Law School. I ask unanimous consent to have the entire letter printed in the Record following my remarks.

Mrs. FEINSTEIN. Mr. President, the substitute amendment, which I have offered, has been crafted to avoid these problems. Our amendment, the Motherhood Protection Act, will accomplish the same goal as the Unborn Victims of Violence Act, but will do so in a way that does not involve us in the debate about abortion or when life begins. In my view, there is no reason to vote against this substitute unless the intention is to establish legally that human life, for the purposes of Federal criminal law, begins at the moment of conception because, ladies and gentlemen, that is exactly what this bill does. To emphasize the point, let me again turn to the comments of Samuel Casey, executive director and CEO of the Christian Legal Society, who clearly states the intention behind the bill in this quote: In as many areas as we can, we want to put on the books that the embryo is a person. . . .That sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection--even protection that would trump a woman's interest in terminating a pregnancy. Let there be no doubt about the intent. Anyone who is pro-choice cannot vote for this bill without the expectation that they are creating the first legal bridge to destroy Roe v. Wade. Now, there is a time and a place to discuss the morality and philosophy of when life begins. This is not that time. Now is the time to change our Federal law to punish criminals who would inflict grievous injuries or death upon pregnant women on Federal lands. So I urge my colleagues to support the substitute amendment. Exhibit 1 Stanford Law School, Stanford, CA, July 10, 2003. Senator Dianne Feinstein, U.S. Senate, Senate Hart Office Building, Washington, DC. Dear Senator Feinstein: I wish to express my concern about the current formulation of S. 1019, the Unborn Victims of Violence Act of 2003. Although I fully endorse the Bill's ultimate aim of protecting pregnant women from the physical and psychological trauma of an endangered or lost pregnancy, I believe that the Bill's current formulation will frustrate rather than forward this goal. I write both as a former prosecutor and as a law professor specializing in criminal law and criminal prosecution. At the outset of my career, I served as an assistant district attorney in Middlesex County, Mass., and as an assistant attorney general in the Massachusetts Attorney General's office. I then went to Boston College Law School, where I administered and taught in the criminal prosecution clinic. I have been at Stanford since 1995 and a tenured professor of law since 1999; during the next academic year, I will serve as Academic Associate Dean. In 1996 I founded Stanford's criminal prosecution clinic and have administered and taught in the clinic ever since. I have also created a course in prosecutorial ethics, which I taught at Boston College Law School and, as a visitor, at Harvard Law School. My background and interest in criminal prosecution prompt me to raise three objections to this Bill. All of them focus on the Bill's use of the expressions ``child in utero'' and ``child, who is in utero,'' and on its definition of these terms as ``a member of the species homo sapiens, at any stage of development, who is carried in the womb.'' First: The Bill's apparent purpose of influencing the course of abortion politics will discourage prosecutions under any future Act. I do not know what motives gave rise to the Bill's use of the expressions ``child in utero'' and ``child, who is in utero,'' but I do know that any vaguely savvy reader will conclude that these terms and the Bill's definition of them were intended by the Bill's authors to influence the course of abortion politics. It is a fair prediction that when a pro-life President is in office, prosecutions under this Bill will be more frequent than when a pro-choice President is in office. That is because the public will interpret this Bill as suggesting that abortion is a potentially criminal act and will interpret prosecutions under the Bill as endorsing this sentiment. If the authors of the Bill truly seek to protect unborn life from criminal violence, they will better accomplish this purpose by avoiding such expressions as ``child in utero.'' Better alternatives would refer to injury or death to a fetus or damage to or termination of a pregnancy. Second: The Bill's apparent purpose of influencing the course of abortion politics will motivate prosecutors to exclude those prospective jurors who otherwise would be most sympathetic to the prosecution's case. If I were prosecuting a case under this Bill, I would hope to have a jury that includes persons deeply sensitive to the rights and interests of pregnant women. Such jurors would regard an attack on a pregnant woman as being a twofold crime, comprising both the injury directly inflicted on the mother and the stark emotional and physical trauma resulting from injury to or loss of her pregnancy. But such jurors also will be more likely than others to believe that pregnant women have the right to exercise autonomy over their bodies and to choose whether to abort a pregnancy. I predict that many or most judges will bar prosecutors and defense counsel from questioning prospective jurors about their views on abortion or about related matters such as their religion, religious practices, or political affiliations. Forced to act largely on instinct, prosecutors may be inclined to exercise peremptory challenges against those prospective jurors who appear to be most sympathetic to the rights of pregnant women. This result clearly would frustrate the Bill's stated purpose of protecting unborn life from criminal violence. Third: The Bill's apparent purpose of influencing the course of abortion politics offends the integrity of the criminal law. To anyone who cares deeply about the integrity of the criminal law, this Bill's apparent attempt to insert an abortion broadside into the criminal code is greatly offensive. The power to inflict criminal penalties is, second only to the power to wage war, the highest trust invested in our institutions of government. Because the power to make and enforce criminal laws inherently carries enormous potential for abuse, those who exercise that power must always do so with a spirit free of any ulterior political motive. The American Bar Association's Standards Relating to the Administration of Criminal Justice provide that ``[i]n making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved . . . .'' (Standard 3-3.9(d).) Not all prosecutors conduct themselves with fidelity to this principle, but we may readily condemn those who do not. We may likewise condemn other public actors who abuse the sacred public trust of the criminal sanction for political ends. For these reasons, I object to the current formulation of the Unborn Victims of Violence Bill. As I am confident that an alternative version of the Bill can fully accomplish its stated purpose of protecting unborn life from criminal violence while avoiding each of the difficulties I have outlined above, I strongly encourage the Senate to modify the Bill in the ways I have suggested above or in some other manner that avoids the freighted and frankly politicized terms, ``child in utero'' and ``child, who is in utero.'' My thanks to you for your consideration of my views. Sincerely, George Fisher, Professor of Law.

Mrs. FEINSTEIN. Mr. President, how much time have I consumed?

Mrs. FEINSTEIN. I have 89 minutes remaining?

Mrs. FEINSTEIN. I thank the Chair. I know the Senator from New Jersey is on the floor wishing time.

Mrs. FEINSTEIN. Good. May I ask the Senator how much time he would like?

Mrs. FEINSTEIN. I yield as much time as she may require.

Mrs. FEINSTEIN. Mr. President, it is extraordinarily difficult to respond to the litany of atrocities the Senator from Kansas has just enumerated. I cannot help but wonder: What kind of animal can do this to a woman who is 7 or 8 or 9 months pregnant? I cannot help but wonder how our society produces men who would do this kind of thing to a woman. I cannot help, as a mother and a grandmother, to share with those for whom this is a life scar that will never, never heal. And I understand it. I understand the need to want to punish, and understand the need to want to say this child--who is so close to birth, who would be capable of life outside of the womb at that moment--is a victim because, in fact, that child is a victim. I appreciate that and I understand it. One of the reasons at the beginning of my remarks I said this bill is so controversial is because definitions have different meanings in law. The controversial part in the underlying bill is the definition of ``child in utero'' and ``child, who is in utero'' because the bill language is: ``means a member of the species homo sapiens,'' in other words, a person, ``at any stage of development''--``any stage of development,'' not when the fetus is what they call ``quick,'' which means it is capable of movement; not when it is viable, which means it is capable of life outside the womb; but at ``any stage of development.'' This is what causes the problem in the law once you set it in the law. That is what is so distressing about this bill. Because every Member of this Senate wants to vote yes. Every Member of this Senate wants to say: Throw the book at that animal. Who could be so callous? Who could be without any morality? Who could be so cruel? Who could practice such a heinous crime? Who could punch a 9-month pregnant woman in the stomach to the extent that it causes the killing of her unborn child? So I am there. I am there entirely. I am there completely. But, again, it is complicated because the definition we are working from gives rights at the point of conception. It does not differentiate. It does not say the 8-month-old baby or the 7-month-old baby, who is capable of life today, is what we are talking about. It says the recently fertilized egg is what we are talking about. That is the difference. It is so hard, because you stand here and you listen and your heart goes out, and you think of these beautiful women and their beautiful children, and some animal comes at them, and in some cases kills them both, in some cases kills one, and in some cases kills the other. Sure, throw the book at him. I will go a step further. I would give them a death penalty because they have taken two lives, and I do believe a child at that period of gestation is a life. The problem is the bill language, which begins this at the point of conception. Now, every single case presented on this Senate floor this morning is of a child who is viable outside of the womb. But the bill covers children that are not children; that are a day old in the womb, that are at conception. That is the problem we have with this bill. Because once you give an embryo, at the point of conception, all of the legal rights of a human being, and you have said that embryo, then, if it is lost to humankind, is murdered, you have created the legal case to go against Roe v. Wade in Federal law for the first time in history. Now, California and the Laci Peterson case was mentioned a great deal. The prosecution of Scott Peterson will be conducted under California law, which has amended the definition of the penal code section 187--which is first degree murder--to refer to a fetus. But then other parts of law in California only imposes criminal liability starting at 7 to 8 weeks of gestation. So where the California law effectively covers exactly the situation that the Senator from Kansas is mentioning--all of those situations--it takes into consideration the period prior to 7 to 8 weeks of gestation. And, in fact, many other State laws do as well. The problem is this is a much more comprehensive definition that doesn't make any of the distinctions that are made by many of the States with respect to these criminal statutes. Many of them cover when the fetus has quickened, which means the fetus or the child is capable of movement, and many of them cover after viability. This creates the situation where the embryo has the rights of a person. That is the problem for many of us. The Senator from Ohio--and I think he knows I respect him; we have worked on so many things--says don't bring in the abortion debate. But I can't help but bring in the abortion debate because the proponents-- not the Senator from Ohio, but other proponents--have said ``this is part of our strategy--this is what we want to achieve.'' Then you get somebody like me and Senator Boxer and other cosponsors who want to protect a woman's right to control her own reproductive system, particularly in those early months, who read this bill and see the definition and say: ``There is the ball game--here we lose big time.'' It is like you say to me, ``gotcha,'' because I want to punish that guy who beat that woman to death, who killed her unborn child, because I know that child is capable of life. You know that child is capable of life. But to give that right to a fertilized egg or an embryo is a different thing. Your bill gives that right to a fertilized egg or an embryo or a zygote. Then, when I go out and I look at what people have said about the bill, I see these statements, such as the statement of Mr. Casey: In as many areas as we can, we want to put on the books that the embryo is a person. This bill puts on the books that an embryo is a person, a member of the species Homo sapiens, in bill language. This bill establishes exactly what the right-to-life movement wants to establish, that an embryo is a person. That sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection. Once you have the embryo being a human being, then that human being at any stage of development deserves protection--meaning deserves rights under the law, which this establishes because it makes that embryo a victim--even protection that would trump a woman's interest in terminating a pregnancy. Think of that, that would trump a woman's interest in terminating a pregnancy. Now, I am one who believes there should not be abortion if the baby is viable. I agree with Roe because it provides the woman choice in the first 3 months of a pregnancy where there is not viability. I lived and grew up at a time when abortion was illegal in California. I saw a good friend commit suicide because she was pregnant and in college. I saw women pass the plate so someone could go to Tijuana for an illegal abortion. You would say that is not relevant to this debate--``don't discuss it; don't bring it up in the Senate--just think about the mothers and the babies who were killed.'' I want to do that, too. And I think about the mothers and the babies. I want to throw the book at those guys. And the death penalty, too. I don't have a problem with that because I believe by your actions, you can vitiate your own right to live. That has been true for me since 1971, as well. That has been my consistent position. But once in a statute you create a fertilized egg as a human being with specific rights, the march to eliminate Roe v. Wade is on its way in statute. That is what is happening with this bill. That is what I object to. There is no reference to viability. I have the list of what all the States do. They all do different things. Many of them recognize it. For example, seven States impose criminal liability starting when a fetus is quick, in other words, capable of movement: Florida, Georgia, Mississippi, Nevada, Oklahoma, Rhode Island, Washington. Seven States impose criminal liability starting at the point of viability: Florida, Indiana, Massachusetts, Missouri, Oklahoma, South Carolina, Tennessee. So there are many differences. Different States do different things, even when they have this law. But what this does, what this underlying bill does, is say from the moment of conception there is a baby and that baby is a human being and that baby has rights. That is a problem in the criminal law. As the Stanford law professor pointed out, if a case comes before the court where, let's say, a woman was assaulted and she was 3 days pregnant, and the forensics could establish that she was 3 days pregnant, and you are voir-diring people for a jury and you are telling them that there is a second victim, and it is a fertilized egg that is 3 days old and there is a 20-year charge pending or life imprisonment pending for that 3- or 5-day-old fertilized egg, then this is what the law professor meant when he said: ``You are going to get the very people who are the most interested in protecting the woman being reluctant to go on that jury.'' Not every case under this law is going to be post-viability, going to be like the cases that the Senator from Kansas brought forward, where I would say: ``Give the guy the death penalty.'' I wouldn't have a problem with that. They did terrible things, the acts of an animal. But that is not what this law says. That is the difference. What we have tried to do is say: If you end a pregnancy, if you harm a pregnancy, the same penalties would apply that apply in the House bill and Senator DeWine's bill. I wish this could have gone to the Judiciary. I wish it wasn't rule XIV. I wish I had an opportunity in committee, in markup, to make these points. Let me go over once again, so that everybody is crystal clear on the point of the creation of a separate offense, where a defendant violates any of the enumerated Federal crimes, our bills are identical. On the provision that the separate offense is punished the same as the violation of the enumerated Federal crimes, our bill is identical. On the provision that if the separate offense harms or ends the pregnancy, the punishment is the same as a violation would be for the underlying crime: murder, manslaughter, or assault, as appropriate. Our bills are identical. With respect to the provision of penalty for death of a fetus is a maximum life sentence, our bills are identical. With respect to the provision of penalty for harm to the fetus is a maximum 20-year sentence, our bills are identical. And both bills do not impose the death penalty. Where our bills are different--and this is important--is the definition of when life begins. The underlying bill defines life as beginning at conception. (Mr. ALEXANDER assumed the Chair.)

Mrs. FEINSTEIN. Mr. President, we do not address when life begins. I just read Justice Blackmun's opinion in Roe v. Wade. It is interesting, because he goes back to the Stoics, the Catholic Church, to the Middle Ages, and discusses the difference of opinion of when life begins, the difference of opinions in science. Then he reaches his conclusion that because these differences are so vast, the law generally does not directly enjoin that point of when life begins. That is the problem we have here. That is the dilemma the Senate faces. This bill is on a fast track. This bill has passed the House. This bill has been subject to a Rule XIV, without a hearing, from the year 2000. You have heard the most poignant, disturbing, heartrending stories on this floor. I respond to them like everybody else does. But I also know if you give a fertilized egg rights in the Federal law, it is going to have repercussions downline. If you declare in this bill you can prove a 1-day-old fertilized egg was a victim and therefore murdered, how do you turn around and say in another law you can proceed with embryonic stem cell research? You have the same 1-day-old fertilized egg. If it is murder here, is it not murder there? What are the repercussions of doing that? They are enormous. The other side doesn't talk about this. They talk about women who are 7 or 8 or 9 months pregnant. They talk about the most heinous and brutal assaults. But the bill does much more. The bill says a 1-day-old fertilized egg is a member of the species Homo sapiens. Translation: It is a person. Translation: It is a human being. That is the problem, and this Senate, before it passes out this bill, should understand it and should understand there is an alternative, and the alternative aims to impose the same penalties, but doesn't create that victim fertilized egg, 1 day old--by nobody's stretch a human being--possible of becoming a human being, but not a human being. I have live cells, but they are not capable of producing life. But once the child, the fetus in the womb, is capable of living, that is a different story. I am the first one to admit that is a different story. But everything in this bill, the underlying bill, goes back to the basic definition of what is being done here, and that is that personhood, life, is being given to a 1-day-old fertilized egg. Now I have one child biologically, I have three stepdaughters, and I have five grandchildren. I have seen close friends--I know the glory of motherhood. I know the catastrophe that takes place when you lose a child. I have had miscarriages, so I understand that. But then there is the march to turn back the clock to when I was in college and abortion was illegal. Then after college, when I went out into the world, I actually sentenced women convicted of abortion in the State of California in the State prison. I saw the terrible morbidity and the terrible things they did illegally in back-alley abortions. At that point, I said this is so terrible. Then Roe v. Wade passed in 1973, and a woman could control her own reproductive system, particularly in that first trimester. I thought to myself, we should never go back to the way it was. My concern about the underlying bill is it is the first bridge to take us back to the way it was because of the definition that is in this bill, which gives human rights to a 1-day-old fertilized egg in utero. That is the problem for me. That is the problem for a lot of us in the Senate. Whether it will be enough, I don't know. I tried to perfect the bill. Remember, this was a rule XIV. We didn't have a chance to mark it up. I tried to perfect it. Unfortunately, I was not granted the usual privilege of being able to send a modified amendment to the desk. But the intent is clear. I have made it crystal clear in my remarks. We will have the same penalties for the same crimes as the underlying bill. We will avoid one thing, and that is determining when life, for the purpose of law, actually begins. I yield the floor. How much time do I have remaining?

Mrs. FEINSTEIN. Mr. President, I reserve the remainder of my time.

Mrs. FEINSTEIN. Mr. President, could you give us the time remaining on both sides, please?

Mrs. FEINSTEIN. I thank the Chair. Mr. President, this is a difficult discussion because I am very fond of both the Senators with whom I am debating. However, I certainly do not agree with the statement the Senator from Ohio just made with respect to the definition that is in the bill. I will read the definition that is in the bill. The term ``a child who is in utero'' means: A member of the species Homo sapiens at any stage of development who is carried in the womb. The one thing neither Senator DeWine nor I know is how fast the egg gets to the womb, but I think it is pretty fast. I just had a note passed to me by someone more erudite than I. I think we can all put this in our lexicon. It takes about 7 days for a fertilized egg to get to the womb, but there is also the belief the underlying bill applies at the moment of conception. Let us say the egg gets to the womb in 7 days. The problem those of us on this side of the aisle have with the bill is it gives the status of a human being to that egg as soon as it is in the womb, and that creates for the first time in Federal criminal law a scenario whereby if that egg is hurt, criminal assault charges, criminal manslaughter charges, criminal murder charges can be brought because that egg, at any stage of development--they do not use trimesters, they do not use any way of deciding the development--at any stage of development, that egg in utero is a member of the species Homo sapiens, and that is where this, for criminal purposes, becomes so difficult. That is why the letter from the professor from Stanford, who runs the criminal prosecution unit at Stanford Law School, becomes so relevant, because let's say I am in a jury pool and a woman has been beaten up and she was 7 days pregnant--at that moment it is a fertilized egg--and she lost the fertilized egg, and I was told the penalty would be an additional 10 years in prison because she lost that egg. Well, I would have to make a decision as to whether I want to be on that jury. So what the professor says is this can actually work contrary to our intent, particularly in these early cases. He also said he suspects it is dependent on the administration as to whether early cases will be brought to a court or not, but the point is we cannot make that decision. We cannot say this is only going to be used when a mother is 7 months, 8 months, or 9 months, pregnant. In the horrific circumstances described by the Senator from Kansas, which got all of our hearts beating faster, we cannot assume that all cases will be of that type. The legislation clearly says for the purposes of definition the child is defined from the point it is in the womb at any stage of development as a child, as a person, with rights. That is the dilemma and that is why we have tried to craft a bill that does not do that, that says if someone harms or ends a pregnancy, they are subject to the same penalties. This body is going to have to decide--and it is a very hard question. I think this is one of the most controversial bills we have had. This is probably why this bill has been around for 5 years now. I think it had a hearing in Judiciary in 2000. It has not had a hearing since. It has been rule XIVed to the floor. Again, I wanted to make some small changes--I was not permitted to do so--by modifying my amendment. I believe, and my chief counsel believes, this bill provides the same penalties. The one difference is the definition is different. We use harm or end pregnancy, rather than that the unborn child becomes a child--well, that a child in utero and child who is in utero means a member of the species Homo sapiens, at any stage of development, who is carried in the womb. That is the problem and that is where for those of us who want to protect a woman's right to choose and who read the statements that are put out by the far right, we take them at their word that this is where they are going. I did not make this up. This is a rather well-known statement. It clearly says, ``In as many areas as we can, we went to put on the books,''--this statute on the books--``that the embryo is a person . . . '' For me, I am also very interested in being able to see that there are prudent regulations and Federal controls that will allow embryonic stem cell research. Well, if it is murder of a 7-day-old fertilized egg, then it is murder if it is used in stem cell research as well. That is where I think this is going. There are also statements by people who want to ban embryonic stem cell research that also say this is the strategy. So I say, why get into it at all? Why not just say, if someone ends or terminates a pregnancy, the same penalties will apply. That is what we have tried to do. That is the intent of what we are doing. I think the votes are very close. At this point, I will yield the floor, but I reserve the remainder of my time.

Mrs. FEINSTEIN. Equally divided.

Mrs. FEINSTEIN. Just to sum up, I hope Members of the Senate will vote for the substitute amendment and against the underlying bill. I thank the Chair. I thank the distinguished Senator from Ohio. It has been a very interesting morning.