Rick Santorum

Mr. SANTORUM

Mr. SANTORUM. OK. I suggest that the Senator from New York examine the language. It is very clear that this is one particular kind of abortion we have addressed, and we have addressed the vagueness, as put forth by the U.S. Supreme Court. And there are other techniques available for abortion that are late term in nature, and this bill would in no way stop other abortions. In fact, the previous speaker on the Democrat side, Senator Kennedy, made that very point. He made the point that this will not stop abortions. I respect your feelings and I also respect Senator Kennedy's. You both oppose the bill and you have opposite opinions on this issue.

Mr. SANTORUM. I understand the Senator from Iowa. I would say if the Senator wants his daughter to go to the hospital and have an obstetrician give her the best procedure she wants, let me assure the Senator she will never have this procedure, because this procedure is not done by obstetricians and hospitals. It is not done. I suggest to the Senator what we are doing is getting rid of a rogue procedure that has been demonstrably testified to that this is contraindicated. The AMA: Bad medicine. Their term, not mine. I am saying this is a rogue procedure that is outside the medical arena. This is outside the standard of care. The Senator knows about the issue of standard of care. He is involved greatly in health issues as the ranking member of the Health Subcommittee on Appropriations. I know he cares deeply about that and he knows the issue of standard of care. Nowhere in the literature is this considered to be standard of care. As a result of that, I make the argument--in fact, I have made the argument--that this procedure is not healthy to women and as a result should be banned because it is the least safe procedure, and it is not appropriate. I will answer one more question and then I would like to speak.

Mr. SANTORUM

Mr. SANTORUM. The Senator from Illinois just said the statute does not apply if the physician certifies it is not viable. So the statute does not apply if the license is not on the line. But your statute does not say that. You may want to say that, but it does not say that.

Mr. SANTORUM. I appreciate that. Let me reiterate for the record, I do not question--and I mean this with all sincerity--I do not question the sincerity of the Senator from Illinois. I know because many on his side have voted against his amendment who agree with him on the position of abortion. So I truly do recognize the Senator is attempting to find some middle ground. With all due respect, I just don't believe you have gotten there, but I do not question you have attempted to do so. The point I am trying to make is the whole operation of your statute does not apply unless the physician claims viability. If the physician doesn't claim viability, then your statute doesn't apply. I am a physician. I say--and under the Supreme Court a physician can abort a child under any circumstances for any reason up until the time of separation. So I have no legal liability out there. Outside of your amendment, I have no concern about my license, a lawyer, anything. So all I have to say is this child is not viable. If I make the claim this child is not viable--I don't care if it is 39 weeks and 5 days. If I say it is not viable, your statute does not apply. If your statute does not apply, I am in the clear. So that is the concern I have, that you leave the determination of viability to the physician.

Mr. SANTORUM. I would just suggest to the Senator from Illinois, having read this, having read the reference--not criminal but civil penalties could apply--it still leaves viability, No. 1, undefined; and, No. 2, solely at the discretion of the abortionist. You can say there is other evidence. But particularly when most of these abortions are performed, most late-term abortions are performed--the question of viability is a percentage. You can talk to most obstetricians and they will tell you the determination of viability is very difficult. Frankly, you leave it unreviewable from the standpoint of the act. You say someone could bring a suit or someone could bring charges. The question is, Who would bring the charges? That is another story. But nevertheless, someone could. But to be able to prove a child is viable when you have up through early 30 weeks a percentage that are not, I think is a very steep task, and one that would not, I believe, dissuade. Certainly in the area where most late-term abortions are performed, the percentage is high enough that any abortionist could come forward and say this child, I just didn't believe it could live, and that as long as they did so with a reasonable judgment, you have no opportunity. You have no standard. You really do leave this very much wide open. I would just argue it does not accomplish what you want. Again, there may be a handful of abortions that would fall under this in terms of a court or somebody saying because of the advanced--38, 39, 37 weeks we would have--there is a presumption of viability. But there is no presumption of viability in this statute. There is no presumption of viability, I believe, in any statute I am aware of. So if there is no presumption, then you have a very difficult task proving viability when you are not the physician at the time, there, doing the procedure. Even if we get past the viability issue, which I believe we have not gotten past, you have this whole issue of risk of grievous injury to her physical health. I would again argue that the word ``risk'' leaves open a wide area, a wide berth for opportunity for physicians to get around this problem. I just refer you to not just Warren Hern, but we have other physicians, other abortionists who have come forward and said they would come forward certifying that, under your statute, they read your language and said they would feel comfortable under that language. I suggest there are still problems here. Again, I respect the Senator for his desire to deal with this issue, but I just don't believe his amendment hits the mark. Mr. President, I am going to depart from conversation on the Durbin amendment and I will not talk anymore about it this evening. If the Senator wants to stay some more and talk about it, I am just going to talk generally on the bill. I do not want to tell the Senator it is 8:30, if he wants to go home, he can go home, but I am going to make just some general comments on the bill. Then I intend to wrap up. If the Senator would like to make another comment for a few minutes? OK. Then I will just proceed. I will be brief because I know the Presiding Officer has been in the chair a long time and we have students here who want to get out before 9 o'clock so they can be in class tomorrow morning, so I want to make sure they are not deprived of their educational opportunities. I will do my best to finish before 9 o'clock. When I came to the floor years ago to debate this issue, we talked a lot about the impact of abortion in this country; as Senator Brownback said earlier, the cheapening of the value of human life that has occurred as a result of legalized abortion. That was amplified greatly by this particular procedure, this brutal procedure in which the child, a living child is all but born, 3 inches from legal protection under the Constitution, and then treated so brutally, so harshly. I talked about the culture and how the culture is implicated in this, and how the medical profession is implicated in this. We hear so much talk about obstetricians wanting to keep these legal, but you would be hard-pressed in many communities to find obstetricians because of legal liability and all the problems associated with that. In fact, the indication I talked about a few years ago was a classic case in point of obstetricians' insensitivity to life, compounded with their fear of legal liability. It is a pretty potent combination for any child with a disability in utero. It leads a lot of doctors to head out of town and not want to deliver children with any kind of fetal abnormality. Mothers who have children with fetal abnormality really do have trouble finding doctors who will treat because of the fear of litigation and because of this sense that, well, you know, let's just have an abortion. You don't want to be hassled with this child who may have multiple difficulties or problems. Certainly I don't want to have to deliver a child who has multiple problems because you can blame me for some of this, or I can be dragged into lawsuits. So we have a real coarsening, from both the litigation end and, I would argue, from the abortion end of this issue dealing with the very children the other side uses to legitimize or attempt to legitimize the procedure of partial birth. For these hard cases--these hard cases are not cases where the woman's life or health is in danger, but where the child's prognosis is poor because of multiple abnormalities--trisomy 13 was one example, aencephaly was, I think, another example, or hydrocephaly. There are all sorts of examples out there where children who have very severe birth defects are sort of shoved aside by our health care system, because of insensitivity to life compounded with the fear of legal liability, the one such case which I talked about in great detail was the case of Donna Joy Watts. Donna Joy came here to the Senate. In fact, her mother sat up in the galleries. Donna Joy was not allowed to sit in the galleries because she wasn't old enough. Under the rule, we were not permitted to bring her into the gallery. She is a little girl who is a true miracle. Very briefly, 7 months into her pregnancy, Lori Watts and her husband, Donny, learned through a sonogram that their child would not be normal. She went to see a genetic counselor. Unfortunately, there are far too many genetic counselors in this country. The genetic counselor quickly referred her for an abortion saying that their child had hydrocephalus, which is water on the brain; and that as a result of the water buildup, brain development was not normal because of pressure on the brain. As a result, their child would either die shortly after birth or would be living a ``horrible life.'' One of these genetic counselors suggested what would be a partial- birth abortion. They didn't know that they were being referred for an abortion when they were referred to the doctor. But they were. They rejected that option. Through their faith and through their love of their child in the womb, they made the decision that if their child, Donna Joy, was hurting and was sick, they would act like parents who have a child that is hurting and sick. You do everything you can to help your child. It is a natural parental reaction. It is a very difficult reaction. It is very difficult to deal with these circumstances. But it is the instinct to first want to see what you can do to help your child, even if things look hopeless. I have given the example many times. When parents find out their 7- year-old is stricken with leukemia which may be fatal, or diagnosed as fatal, I don't think the immediate reaction of most parents is, well, let us execute him to put him out of his misery. The immediate reaction is, What can we do to fight? What can we do to help this child survive? How can we rally around him or her to fight this problem that has confronted our family? Thankfully, many parents respond like Donny and Lori Watts. They were advised to see a specialist in high-risk obstetrics. I will not go through all of the details, but I can tell you that they went to hospitals and practice after practice. Practices simply wouldn't see them. They wouldn't see Lori because of her high-risk pregnancy and because of high risk in the sense that their daughter had severe abnormalities. Eventually, they were able to find a doctor at the University of Maryland who agreed to monitor the pregnancy. And through a C-section, Donna Joy was born on November 26, 1991. She had very serious health consequences. This is a picture of her. You can see the size of her head. It was large as a result of the hydrocephalus. The Watts family lives in Greencastle, Pennsylvania. Seven months into her third pregnancy, Lori Watts learned that her child would not be ``normal.'' Through a sonogram, Lori and her husband Donny learned that their child had a condition known as hydrocephalus-- an excessive amount of cerebrospinal fluid in the skull, also known as ``water on the brain.'' Lori's Ob-Gyn made an appointment for her to see a doctor billed as a ``genetics counselor'' at a clinic. When Lori Watts phoned the clinic to get directions and ask what they planned to do, the staff member told her that most hydrocephalic ``fetuses'' do not carry to term so they would terminate the pregnancy. When she asked how they could do an abortion so later in the pregnancy, she was told that the doctor could use a ``skull-collapsing'' technique--what we refer to as a partial- birth abortion. Appalled, Lori promptly canceled the appointment. When Donny Watts demanded to know why they had been referred to a facility that performs abortions, their Ob-Gyn explained that he thought he had referred them to a different doctor at that same clinic--a doctor who would have suggested ways to keep the child alive. The Wattses were stunned to realize that the clinic offered both life and death-- depending on which staff doctor you happened to speak with. Their Ob-Gyn then advised the Wattses to see a specialist in high- risk obstetrics. They never expected the cavalier treatment they received from the medical community. Doctors at Johns Hopkins University, Union Memorial Hospital, and the University of Maryland Hospital in Baltimore were quick to dismiss their baby's chances for survival and even suggested that if the child lived, she would be ``a burden, a heartache, a sorrow.'' According to Donny Watts, ``They wouldn't even give her a chance.'' Instead, they urged Lori to abort the baby to protect her own health and future fertility. Medical staff at Johns Hopkins would not even see Mrs. Watts. When she explained her situation over the telephone, she was urged to have an abortion. The Watts family received similar treatment from a perinatologist and a specialist in high-risk and severe abnormalities at Union Memorial Hospital. This perinatologist advised Mrs. Watts to have an abortion and claimed that without a neo-natal intensive care unit NICU, Union Memorial could not care for this sort of child. After making her own inquiries, however, Mrs. Watts learned that Union Memorial did in fact have a NICU. The Wattses next appealed to the University of Maryland high-risk obstetrics clinic, where the attending physician told Mrs. Watts she needed an abortion because the ``fetus'' had occipital meningoencephalocele--part of the brain was developing outside the skull. Still determined to save their child, Lori and Donny Watts continued educating themselves about their baby's abnormalities and searching for a doctor who would perform the delivery. Finally, another doctor at the University of Maryland agreed to monitor the pregnancy. Through a Caesarean delivery, the Watts' third daughter, Donna Joy, was born on November 26, 1991. Yes, Donna Joy was born with serious health problems. And like any loving parents, the Wattses expected the medical community to work tirelessly to help their new baby survive. They were greatly disappointed to discover that many members of the hospital staff treated Donna Joy with the same apathy, pessimism, and callousness after her birth. For instance, the Wattses were alarmed that doctors waited three days to implant a shunt to drain excess fluid from the baby's head. In prenatal consultations with a perinatologist, they had learned that the shunt should have been implanted as soon after the delivery as possible. To add insult to injury, hospital staff made no attempt to feed Donna Joy in the traditional sense. Doctors at the University of Maryland believed that Donna Joy's deformities would prevent her from sucking, eating or swallowing. Because of a neural tube defect that made feeding her difficult, Donna Joy received only IV fluids for the first days of her life. Lori refused to give up. Initially, she literally fed breast milk to Donna Joy with a sterilized eye dropper, to provide sustenance. Then, at two weeks of age, the shunt failed, and Donna Joy was readmitted to the hospital for corrective surgery. When a tray of food was delivered to her hospital room by mistake, Lori had a brainstorm. She mashed the contents together and created her own food for the newborn with rice, bananas, and baby formula. She fed this mixture to the baby one drop at a time with a feeding syringe. Unfortunatley, Donna Joy's fight for life became even more complicated. At two months of age, she underwent an operation to correct the occipital meningoencephalocele. At four months, a CT scan revealed that she also suffered from lobar-holoprosencephaly--a condition which results from incomplete cleavage of the brain. She was also suffering from epilepsy, sleep disorders, and continued digestive complications. In fact, the baby's neurologist conveyed to a colleague, ``We may have to consider placement of a gastronomy tube in order to maintain her nutrition and physical growth.'' The baby was still hydrocephalic and could not hold her head up. Furthermore, the baby was suffering from apenea--a condition in which spontaneous breathing stops. Then, at eighteen months of age, Donna Joy had another brush with death. She had suffered from encephalitis--inflammation of the brain-- throughout the summer. Donna Joy developed amnesia, tore at her face and eyes, and could not talk or walk. Her recovery was--miraculously, I would suggest--facilitated when Lori Watts popped a tape into her VCR at random. The tape happened to contain an episode of the television show Quantum Leap in which the show's star, Scott Bakula, sings a song. Upon hearing Bakula's rendition of ``Somewhere in the Night,'' Donna Joy showed the first signs of responsiveness in months. At two years of age, Donna Joy had already undergone eight brain operations. Although most of these occurred at the University of Maryland Hospital, in one case doctors had to perform surgery at the child's bedside with local anesthesia. Finally, the family received good news about Donna Joy's prospects. Donna's neurologist, who re- examined the child after a seizure in September, 1996, noted that at four and one half years, Donna Joy could speak, walk, and handle objects fairly well. He also thanked a colleague `` . . . for the kind approval for follow-up and allowing me to re-assess this beautiful young child, who is remarkably doing very well in spite of such a significant malformation of the brain.'' Before Donna Joy moved to Pennsylvania, Maryland Governor Parris Glendenning honored her with a Certificate of Courage commemorating her fifth birthday. Mayor Steve Sager, of Hagerstown, Maryland, proclaimed her birthday Donna Joy Watts Day. Members of the Scott Bakula fan club have sent donations and Christmas presents for the Watts children. People from around the world who have learned about Donna Joy on the Internet have also been moved to write and send gifts. But perhaps most important, the Watts' determination has inspired a Denver couple to fight for their little boy under similar circumstances. There is a lot of talk on the other side about partial birth abortions being necessary to preserve future fertility--indeed, one doctor cautioned Lori Watts that her fertility could be compromised if she chose not to have a partial birth abortion. Well, in June 1995 Lori and Donny Watts experienced the joy of welcoming another child-- Shaylah--into the family. Like many children, Shaylah has asthma, but is otherwise healthy. Furthermore, Lori Watts experienced no similar complications with this pregnancy. The story of Donna Joy Watts continues to inspire the public. The child that nobody gave a chance to live is now 11 years old. She has outlived her original prognosis by a decade. She continues to battle holoprosencephaly, hydrocephalus, cerebral palsy, epilepsy, tunnel vision, and Arnold-Chiari Type II Malformation--which prevented development for her medulla oblongata. Donna Joy visited my office just a few weeks ago with her mother, father, and two of her sisters. She is now being home schooled with her sisters. She is very active outside of school too. She has taken a gym class where her favorite activities are running track and playing soccer. While she may tire a little bit faster than the other kids, there is no question that she keeps up with them and follows the rules of the games. Her teacher has said how very proud she is of how Donna has excelled in class. She has also taken art classes, where she particularly likes painting and beadwork. She loves music, and her church wanted me to know how much they love having Donna in their choir. She is active in not only her church choir, but also actively participates in her Sunday school class. The picture we have here is from a few years ago when Donna Joy was flower girl in her aunt's wedding, one of 2 weddings Donna Joy was in that summer. And she continues to add to her collection of movie star memorabilia. Oh, and she recently made an appearance on the Donahue Show with her mom Lori. So far, Donna Joy sounds like a pretty normal kid. But let me tell you a little bit more about her. Donna Joy is also very thoughtful about the needs of others. In her Sunday school class, she will stop and help the younger children who might be struggling with doing their crafts. She helps out around the house--without complaining! Donna Joy regularly helps a local shop pack up their extra cloths for shelters for abused women, shelters for the homeless, and for orphanages in Romania. Not only that, but with her sisters and mother, she regularly visits the elderly in nursing homes. She finds out which of them hasn't had a visitor in a while and then plays games and sings with them. This little girl once described as ``a burden, a heartache, a sorrow'' is in fact a beautiful, lively child who is now caring for the needs of others. Donna Joy's pastor recently sent me a letter expressing his appreciation of Donna Joy's life. Pastor David Rawley noted that ``had Donna Joy's parents followed the advice of several physicians and aborted this child, our community and church would have been bereft of an absolute treasure.'' He referred to himself as ``a member of the community which benefits from her life.'' I think he raises an important point. We never know ahead of time the impact that one life-- in this case, Donna Joy's--will have on a family, on a community, or for that matter, the world. Lori wrote me the other day to say, ``Donna Joy never put my life at risk. She's only made it better! Let me say again that Donna Joy went through an enormous amount of medical procedures--shunts. She suffered from epilepsy, sleep disorders, digestive complications, a variety of different complications that came with the condition that she had in utero. She suffered from encephalitis, an inflammation of the brain. She was 18 months of age and had all sorts of problems--amnesia, tore at her face and eyes, couldn't walk or talk. She was not given much chance of recovery. And then a miracle happened. Donna Joy liked the television show, ``Quantum Leap'' and the show's star, Scott Bakula. She would perk up when he sang a song. She would light up. She was responsive. By putting the tape in and continuing to stimulate her, she was able to come through this and survive. She underwent eight brain operations by the age of 2. She incurred a lot. She was a great inspiration to me in pursuing this cause because she was proof that these children who are unwanted, who are wanted up to a point and then unwanted, unfortunately--because of their abnormality, they become unwanted and a subject for an abortion. This is a hard case, a crisis pregnancy, as someone described, that turned out for the best. In previous discussions I talked about cases that didn't turn out so well. Subsequent to this debate and the publishing of my wife's book about our son, Gabriel Michael, whose case did not turn out as well as Donna Joy Watts, many people have talked to Karen and to me about their own personal stories, and their own crises that they had to go through and deal with. They talked about the difficulties that were presented and how happy they were looking back that they saw it through; supporting and loving their child up until natural death; and the healing experience that they endured as a result of the pain that was brought upon them. Donna Joy is a good story. Donna Joy is someone who survived. All these obstacles were placed in front of her. But she lived despite what everyone said was an impossible situation. We have a recent picture of her. This is Donna Joy in a recent picture. She served as a flower girl in a wedding. I understand she was in two weddings that summer. She has had health problems and continues to have some. She has difficulties. Having six little children at home, I know all about those difficulties and challenges that each individual child brings. But she is a fighter. She is an inspiration to all the moms and dads who are going to confront a difficult pregnancy--a pregnancy as some would suggest which will go awry. Maybe 1 percent, 10 percent, 5 percent, some small percentage of the people who had Donna Joy's condition will survive as well as she is. But she did because her parents believed in her. They didn't accept the culture that said: You don't need this birth. It is too much for you. I am sure Lori and Donny would say this is too much at times, as any parent would. But here is a real-life situation with hopelessness. But occasionally there comes hope. As bad as it can be, if you have trust in your instincts and you follow those instincts to love and support and nurture the child whom God has given you, as a gift--it may not be as you open the package what you expected it to be, but it is nonetheless a gift; and you have to search, many times, for meaning from the gift, as Karen and I have-- but search and you will find the gift. In Lori and Donny's case, the gift is obvious. She is a beautiful girl, who wrote me a letter. I would like to read that letter into the Record. She wrote it on March 6. She said: Dear Senator Santorum, I think abortion is very mean. I am very glad that my Mom and Dad did not let me die. I like to sing Karen Carpenter songs. I like to play with my best friend Mariam. I love my family and my church. My favorite actor is Scott Bakula. I love pizza! I love my puppy. Please tell the President and the other Senators that I want to be a T.V. star, and a pilot, and a U.S. Senator. Please tell them I want to live! She is an example of the triumph of the human spirit that is far too often snuffed out by this brutal procedure. This brutal procedure not only snuffs out so much human potential, but its very presence in our society affects our spirit. It dulls our senses. It makes us less aware of the world around us because it is another thing we just have to block off, because we certainly cannot think, as we go through the day, of the dozen or so--maybe a few less, maybe a few more--of these procedures being performed on little babies, as the Kansas report says, with healthy mothers, healthy children. If we thought every day about what partial-birth abortion is and the horror it brings to these little children, we would have trouble going home. So we just put it aside. We bury it someplace, as we bury so much else, and it hardens us. It takes a little breath of spirit out of us and makes us a less caring and loving culture, less sensitive to the needs and wants of our neighbors, and particularly the little children. We have already seen it. Not only the 1.3 million abortions in this country, but we see it in people such as Peter Singer, who talks about children being killed after they are born, up to a year now, he says, because they really don't know who they are, and so it really doesn't matter. We kill them at that age. They have no sense of self. In some cases they may be in pain, so we need to alleviate pain. See, that is absurd. Well, 40 years ago, this procedure that I described was considered too absurd to be legal in America, and it is. So much that coarsens society is done just a little bit at a time, just on the fringes, just on the edges. And partial-birth abortion is just on the fringe, just on the edge, but yet coarsening our society, robbing us of the spirit, telling the world that we are not the country that we proclaim to be. And it is not even medically necessary. I would ask my colleagues, tomorrow, if we get to a final vote, to support this language as is, not to pass any amendments to this bill. I encourage a very strong and robust vote, to send a message to America that this does offend us, and that this does coarsen our society, and we need to stop it, at least here. Mr. President, I yield the floor.

Mr. SANTORUM. Reclaiming my time, you ask: Are you prepared to stand behind the fact this is a viable fetus? Yet your amendment does not say that. Your amendment does not say the second physician has to certify to viability. What your amendment says is they have to certify that there is a risk--that word that I have trouble with, a ``risk,'' a risk, not a substantial risk, not a verifiable risk, but a risk of grievous injury. So your amendment does not deal with the independent physician second-guessing the determination by the doctor that this is a viable fetus. So we do not even get to the issue of risk if the doctor says it is not viable. If the doctor says it is not viable, no one is looking over his shoulder because your ban does not apply. So nobody is coming in and saying: Well, I understand you can say you are heavy handed with this doctor. We have a doctor, Dr. Hern, who will certify under oath that every pregnancy is a risk, that he can look at any pregnancy and find a substantial risk, and the nexus you spoke about under the legislation. This is the person who read the entire text of your amendment and said he is willing to do so in every circumstance. Setting that aside, we do not even get to that if the doctor determines no viability, correct? Is that correct?

Mr. SANTORUM. The condition is not a reviewable condition.

Mr. SANTORUM. I did not hear the word ``viable'' in that second definition. There was no term--

Mr. SANTORUM. That is correct.

Mr. SANTORUM. Mr. President, the fact is, Viki Wilson testified at a Senate Judiciary Committee hearing in November of 1995. Viki Wilson, as the Senator from Illinois said, was in her ninth month of pregnancy when she received an abortion. According to Mrs. Wilson's testimony, the death of her daughter Abigail was induced inside the womb: My daughter died with dignity inside my womb, after which the baby's body was delivered head first. At this Judiciary Committee hearing, Senator Hatch suggested to Mrs. Wilson that her abortion was not a partial-birth abortion as defined by the bill. Mrs. Wilson responded: It is true, if you take it verbatim. You know, my daughter did die in the womb. That is not an example, No. 1, of partial-birth abortion because she did not have one and, No. 2, that she is not a medical professional. She is a registered nurse, and as my wife is a nurse, my mom is a nurse, please do not get me wrong, nurses are wonderful health professionals, and I have a tremendous amount of respect for them. I love them personally. To suggest that in her testimony, which you just heard--and it was not a partial-birth abortion, but even if it was, to suggest that her testimony was somehow a decision by the medical community or a physician putting forward a case by which the physician said this was the best option, this was medically necessary, and that other options were less desirable, this just does not make the case, which I keep coming back to the point that the case has not been made. Some of my colleagues say: Why do you keep asking this question? Someone is going to come forward with something. After 7 years, you figure out no one is going to come forward because there are no cases, and no medical professional worth their salt would come forward and say something they know is not true because they are going to be reviewed by umpteen obstetricians and gynecologists who will come forward with the medical peer-reviewed research that indicates this procedure is not medically indicated, that it is not necessary, and it is not in the best health interest of the mother. It is brutal, and as the Senator from Tennessee, our leader, said today, the only advantage he can think of to a partial-birth abortion is the certainty of a dead baby. That is the advantage. It is that you know by thrusting those scissors into the base of the skull and feeling--because the doctor has the baby in his or her hand. I just find it to be remarkable, from the standpoint of a physician who can hold a live baby who would otherwise be born alive, a baby who could survive outside the womb, in many cases, and while holding that child, take the sharp, long Metzenbaum scissors and thrust it into the base of the baby's skull. I know many people have felt living beings die in their presence, whether it is a pet or a variety of different living animals, and the feeling when life rushes out, you know it. You feel it. The baby is moving. All of a sudden, as Brenda Shafer, the nurse who testified, said, the baby's arms and legs spring out, tensing up because of the shock to the system and then falling limp. Life evaporated, leaving this little child. And then to take those scissors and open them up-- open them up--to stretch out the base of the skull, as the Senator from Tennessee described, to rupture the cranial cavity, to create a hole big enough to insert a suction catheter. Why? Why is this procedure needed? I keep coming back to the question. It has not been answered because there is no answer. That is why the health exception is not needed, because it is outside the scope of Roe v. Wade, and we have clarified the other problem the Supreme Court noted, which is the vagueness of definition. We have a much more detailed definition. It cannot be confused. The Senator from California keeps coming to the floor and suggesting other medical procedures would be covered by this current definition. Again, I ask the Senator from California to come to the floor and tell me what procedure would be covered by this definition. So far, the answer to that has been silence. On the two points the Court had trouble with the Nebraska statute, there has been no response. I suggest there is no response because we have solved these problems, and that is why this legislation is constitutional. I yield the floor.

Mr. SANTORUM. Mr. President, I pay tribute to the Senator from Ohio who was in the Chamber until about this hour last night laying out very clearly, very succinctly, the legal, moral, ethical, and medical evidence as to why this procedure should be banned and why this Senate should feel comfortable, from all of those perspectives, in passing this legislation. He has done an outstanding job, a thorough job. He has been an invaluable ally in the Senate in making the case, hopefully convincing case, to hopefully a clear majority of our colleagues, that we should proceed, maybe as early as tomorrow, in passing this legislation. I thank the Senator from Ohio for his outstanding work and his obvious commitment to this cause. I wanted to respond to the Senator but I got sidetracked. The Senator from Illinois mentioned something at the end of his talk, and I focused on that and I forgot to respond to a couple of other points he made with respect to his amendment. I focus on the two problems, again, and respond to his defense of his amendment. He defended his amendment and spent the entire time talking about the grievous physical injury, grievous injury that could result, that would be the exception for his ban on late-term abortions. I have concerns because of the issue of risk, and I don't want to repeat that. But what he did not talk about, as big or if not a bigger hole in this legislation, is the whole issue of viability. I believe the Senator--and I will check the record on this, and if I am wrong, I apologize. I believe the Senator from Illinois suggested that the physician certify that a child is not viable, and if there was a determination that the child was viable, he could lose his license. I don't see that in the legislation. I don't see a second doctor overseeing the issue of viability. It is clear from the reading of the language that the second doctor can review the risk of serious injury but is not responsible under the legislation for reviewing the issue of viability. So we have, again, before we even get to the issue of injury or health risk, we have the issue of the abortionist determining whether the baby about to be aborted is viable. Since most partial-birth abortions and most abortions, generally, occur prior to viability, and most abortions, even late-term abortions, occur in the 20th, 26th, 27th week, very few occur 30-plus weeks where viability rates are very high. We are talking here about giving the abortionist, certainly in the case of partial-birth abortions, an unreviewable decision that even in the cases of 35 weeks there may be--I have not looked at the literature because it is, I agree, a rare circumstance--I suggest there are probably some instances where you can conclude the child is not viable for some reason, even at that stage. What the Senator from Illinois has done is create a standard of viability that is not reviewable, and certainly with the case of partial-birth abortions, and I know his amendment purports to cover more than that, it covers even a very small subset of those abortions that we are talking about.

Mr. SANTORUM. I want to make sure the Senator understands the question. I have not been asking about medically necessity. The quotes you have given me have said that it ``ought to be the best.'' Another quote was ``may be the best.'' I have not asked for someone's opinion on what ought to be or what could be. What I have asked for is an example. I wanted a fact circumstance to be provided as to where this would be the best, this would be appropriate, this would be medically indicated. Not in any of the letters I have seen entered into the Record, or in any testimony, has anybody come forward with a factual circumstance that would support the general statements that it ``may be.'' Well, it may be a lot of things, but the point is, there are no examples that support the ``may be.'' All I have asked for--and I have not received a response--is an example for us to look at, to have peer-reviewed, and to determine whether there is in fact a situation that has heretofore not been put in the Record, which is an example of a medical condition that would indicate a partial-birth abortion would be indicated to deal with as the best alternative.

Mr. SANTORUM. I am happy to yield.

Mr. SANTORUM. Reclaiming my time, is the Senator from Illinois stating that legislation requires a second opinion on the issue of viability?

Mr. SANTORUM. Will the Senator yield for a question?

Mr. SANTORUM. Madam President, a couple of points on the Murray amendment: No. 1, this amendment puts conditions on the receipt of enhanced SCHIP dollars. In order to get the enhanced match, a State must first expand eligibility up to 185 percent of the Federal poverty level with the regular Medicaid match rate. In other words, we will force States which are already facing tough budgetary times--and they are pounding on our door because of the cost of Medicaid already--to expand Medicaid before they are able to receive the benefits of this enhanced match. I do not think this is going to accomplish what they want to accomplish anyway. We are going through the process right now in the budget to deal with this issue. Senator Nickles has already said this is going to be dealt with in the budget. We will have a full discussion about this next week. That is the proper place for this discussion, not on this amendment.

Mr. SANTORUM. Mr. President, I rise in opposition to the Durbin amendment. The Durbin amendment is virtually identical to the amendment we voted on 3 years ago, I believe it was. It adds simply nine words at the beginning of the amendment. It says: It shall be unlawful for a physician to intentionally abort a viable fetus unless the physician prior to performing the abortion----. And then adds these words---- including the procedure characterized as a partial birth abortion. And then it goes on. The only difference between that amendment and this amendment are the words ``including the procedure characterized as partial-birth abortion.'' So all of the operative language that seeks ostensibly to ban certain abortions is the same. What are the problems I have, and hopefully the majority of Senators have with this ban? No. 1, it only limits--the partial-birth abortion amendment is limited to postviability abortions. As we have discussed here over and over, the fact that babies who are delivered in a partial-birth abortion, partially delivered, are of gestational age that is in excess of 20 weeks and would otherwise be born alive, that doesn't necessarily mean that they would necessarily survive long-term or ``be viable.'' Viability means not that they wouldn't be born alive, but they would have a reasonable chance of survival. That is a very subjective thing. There is no definition of viability, no standard set in this legislation, and it is purely the abortionist's determination as to whether the child being aborted is viable or not. We have survival rates of infants born at different gestational ages. Senator Frist, earlier today, went through some of those. I will review them. Prior to 23 weeks, a child being delivered at that time has a small chance. There are probably single digits or less at 21 weeks; 22 weeks maybe high single digits. I don't have those numbers but that is my recollection from years past debating this. When we get to 23 weeks, you have a survival rate of about a third; 24 weeks, two-thirds; 25 weeks, almost three-quarters; 26 weeks, 90 percent. But in each one of these cases, even though there are increasing survival rates, you have a great deal of subjectivity of an abortionist being presented with a baby to determine whether this baby in utero is viable. It is purely subjective. All the physician has to say is: Well, I don't think it is viable. So this just doesn't apply. There is no ban at all. Since most partial-birth abortions are in the 20-to-26 week range, there is ample opportunity, ample opportunity for the doctor to say in every instance: Well, I just didn't think it was viable. There is no penalty. There is no criminal sanction. There is no peer review. There is nothing. So this is a ban without a ban because it leaves it completely to the subjectivity of the physician to determine viability. But that is only half the problem. The other half of the problem is these words. It says: It shall be unlawful for a physician to intentionally abort a viable fetus unless the physician prior to performing the abortion, including partial-birth abortion, certifies in writing in the physician's medical judgment, based on the particular facts of the case before the physician, the continuation of the pregnancy would threaten the mother's life---- Hear the operative words---- or risk grievous injury to her physical health. Substantial risk? A little risk? One percent risk? Half of 1 percent risk? Is it .00001 percent risk? Risk is not defined and risk can mean any risk. It can mean the slightest risk. As Dr. Warren Hern, who is the author of the standard textbook on abortion procedures back in May of 1997, said in response to a question on this amendment: ``I say every pregnancy carries a risk--'' not just of grievous physical injury--``of death.'' Every pregnancy carries a risk of death. I will certify that any pregnancy is a threat to a woman's life and could cause grievous injury to her physical health. He was talking about life and death. We are talking about her physical health, grievous injury to her physical health. That is the second part. The fact is, risk not being defined is the open door. The analogy was made by someone that if you have a law that says no dog may be shot except where there is a risk that the dog in question may bite, then any dog can be shot because there is always a risk a dog is going to bite. Any abortion can be performed because there is always a risk. Since we don't quantify the risk, since we don't define the risk, risk is whatever a doctor wants it to be. I bet you will not find one obstetrician, and certainly not one abortionist, who will make the claim that there is no risk associated with the continuation of a pregnancy. It is by definition a risk to the mother. The most healthy pregnancy involves some element of risk. So this amendment--I am not questioning the intent of the Senator from Illinois. I know he went at this and worked, together with the Senator from Maine and others, to try to come up with a good-faith attempt to put a bill together that would be effective. But this doesn't do it. This simply leaves open both the issue of viability and who determines it. There is no peer review, no second-guessing to the abortionist, and then risk as an open question meaning any amount of risk. I believe you will not find any doctor who will say there is not a risk. Of course, there is a risk. The point is not risk, the point is, Is this procedure medically necessary? I keep coming back to this issue over and over again. Please present me with a case, with a case, a factual circumstance where this procedure would be medically necessary and where other abortion procedures could not do, not just as good a job, but a better job. Every health organization out there that I am aware of has said this is bad medicine, this is not practiced, this is not used to protect the health of the mother. We keep trying to grab for a health-of-the-mother exception when the health of the mother is not at issue here. If we were concerned about the health of the mother, then we would not be doing the procedure. We would not be allowing a procedure that is unhealthy; that takes a mother who obviously is under some duress or she wouldn't be at an abortion clinic. She is under some either mental or physical or some sort of angst that she wants to terminate her pregnancy. This is not a decision that people come by easily. What the doctor in the case of a partial-birth abortion does is give her a pill and send her home for 2 days. Come back to me in 2 days. And we have cases that we are aware of, the Senator from Ohio spoke about this yesterday, where children have been delivered in the interim because the cervix dilated too quickly, too much, and the baby was delivered. In one case that we are aware of the baby lived. But they send these mothers home for 2 days. The doctor who designed this procedure said the reason he designed this procedure is because it only takes 15 minutes out of his day to do and the other abortions that are peer reviewed, that are taught in medical schools, that obstetricians and gynecologists do--not that physician who is not an obstetrician who came up with this procedure or most of the practitioners, if not all of them that I am aware of who do this procedure, to my knowledge, I am not aware that any are obstetricians. I could be wrong on that but the ones who have come before the Congress, the ones I have seen cited in articles and testimony who have done these, none of them have been obstetricians. They are abortionists who make money doing abortions. And they came up with a great way to make more money, to get patients in and out quicker. That is great for them, but it certainly does not take into much account the health consequences to women. If you look at the AMA, and every physician group that has come forward, none of them are seeing this is superior medicine. None of them say this is to the benefit of women's health. I hear so many of my colleagues talk about women's health, women's health, women's health. Where are they when we are trying to ban a procedure that is contraindicated for the health of women? Where there are other, safer, better procedures that are available for the health of women, and yet they stand foursquare against women's health, foursquare for the option that is the most dangerous. And it is never medically necessary. So you have to ask yourself a question. If you have a procedure that is the most dangerous procedure and that is the most unhealthy for women, why would you continue to support it if it is not medically necessary? Not one case has ever been voiced at any hearing or in any debate on the floor of the Senate or on the floor of the House. One has come forward and said: This is why. Here is the case. This is why this is the best procedure. No one--no doctor, no Senator, no Congressman, no layperson--has come forward and said, this is it, this is the reason. So we have no medical need. But we do have overwhelming definitive evidence that this procedure is the most dangerous to the health of women. Yet there are those who will come to the floor and proclaim their allegiance to improving women's health who want this procedure made legal for the people who designed it so they can make more money doing abortions in 15 minutes as opposed to 45 minutes--and do it in a way that is just brutal. This is another quote from Dr. Hern: I have very serious reservations about this procedure. You really can't defend it. I would dispute any statement that this is the safest procedure to use. This is an abortionist who wrote the textbooks on abortions. He authored the textbooks on abortion procedures. He does late-term abortions regularly. He is the expert. He continues to do them. What professional in the field says you can defend it? Why would people come to the floor of the Senate to defend the procedure that is indefensible, that is never going to be necessary, and that is harmful to women? Why? Why would you do that? Because you want to create options. Why would you want to create an option that is harmful to women? I understand people come in all the time saying we can't restrict the doctors. Of course you can restrict the doctors if what they are prescribing is harmful and if there are safer procedures to use. We darned well better proscribe it. We have to. We have an obligation to. You have folks who are abortionists saying you can't defend it. Yet here we are defending it. Why? Why are some Members so dug in to protect a rogue procedure that brutalizes and executes a child 3 inches away from constitutional protection? I had a debate several years ago on this issue. If a child was somehow delivered--3 inches from the crown of the baby's head, from the nape of the neck to the crown of its head--had actually gone through the cervix and the child was separated from the mother, they wouldn't argue that you then could kill the child. What is it that would allow this procedure? You heard the Senator from Tennessee, Mr. Frist, talk about all of the complications and all that could go wrong with the blind procedure in an area of the woman's body that is very susceptible to injury, and where these other abortions are performed under controlled conditions with sonograms and you can see everything that is going on. In this case, it is a blind procedure with a sharp instrument in an area that is very vulnerable to injury. Why? Why would people continue to defend a harmful procedure, the least safe procedure done only by abortionists, only in abortion clinics, not taught by schools and not done by obstetricians? Why? To protect women's health? No. For medical necessity? No. Why? That is a question I think needs to be answered. What is so sacred here? What is so valued? What is it that is very deep inside this opposition, that is so important that we are willing to risk the health of women who are told by their doctors this is safe and who listen? The doctor-patient relationship is important. There is a sanctity to it. But you know what. Not every doctor lives up to that. Many of the people who come here and argue for partial-birth abortion will be here in a few weeks arguing that doctors aren't worthy in many cases of our support and are against medical malpractice. These doctors who do bad things to patients should be hammered. What about these doctors who perform indefensible procedures that risk the health of women? Why aren't we going after them? Why are we protecting them? What is it? What is it that is so important that we are going to risk women's health when there is no medical necessity to do this? Where? It is contraindicated. We know the answer to that question, don't we? We can't even come close. We can't even approach abortion as a right in this country because it is the supreme right. Anything that even approaches mentioning the word ``abortion'' irrespective of the consequences to women, God knows irrespective of the consequences to the children, we simply preserve this right above all rights. OK. Maybe we have to argue for a procedure that is dangerous. Maybe we have to argue for a procedure that is going to hurt women. Maybe we have to argue for a procedure that is never medically necessary. Maybe we have to argue for a procedure that is not done by obstetricians even though we are talking about obstetrics here. We have to bite the bullet on this. Yes. But do you know what. We are going to keep the barbarians away from the gates. We are going to keep these people away from this absolute right of abortion. Whether it costs a few women their lives, or it costs the health or reproductive future of women, you know, it is worth it. We can't erode this right. That is what it is all about. That is what it is all about. It is not about women's health. There is not one physician in this country who has come and testified that this is about women's health because it is not. The AMA says it is not. The obstetrician organizations say it is not. No one argues that this is the best procedure. The expert on third-term abortion said it. He is on this side of their issue, by the way. But at least he will make the claim that he is for women's health, and he will do so honestly, which is something that has not been done by many of the outside ``experts'' who have argued to keep this procedure legal. I have chart after chart. I will bring them out later. I have six charts going through the history of partial-birth abortions and showing the absolute fabrication put forth by those against this ban. Oh, the anesthesia would dull the pain. Then another person testified that the anesthesia and the cervical block would kill the baby and there wouldn't be a live delivery. The anesthesiologists around the country went into panic. Women were hearing about it and they would be afraid with their delivery if they took anesthesia--that there would be a cervical block and their child would die. They had to backtrack from that. The list is long. The facts stand. The reason this bill has gotten over 60 percent of the Senate, when probably 40 to 45 percent of the Senate is pro-life, is because this is, as the doctor from Colorado said, an indefensible procedure. So why? Why are we here? We are here because the Supreme Court defended the indefensible. They defended the indefensible. We have responded to the Supreme Court. I hope the Justices read this Record because I am talking to you. I want you to read every time over the last few days where I asked somebody to come forward with a health exception, where there is a medical necessity for the health of the mother to use this procedure. Read it. Observe the silence. I understand the Justices' feelings on the issue of abortion. It is evident from your decisions. It is obvious from your position. But you can't ignore the facts. Don't ignore the facts, because they are clear. They are as clear as the sound of the people coming forward with their examples. It is crystal clear. There is no sound and there is no reason for a health exception. Take the obligation you have seriously because I can tell you, the Members of this body do. We take our constitutional obligations dead seriously. The weight of evidence is not just overwhelming, it is dispositive. Listen. Learn. Decide justly. I yield the floor.

Mr. SANTORUM. Without losing my right to the floor.

Mr. SANTORUM. I reclaim my time.

Mr. SANTORUM. One, you make it sound like the doctor who diagnosed the fetal abnormality was the one who performed the abortion. In fact-- I am reading her story--the diagnosis was made by a perinatologist and the abortion was performed by an abortionist in a clinic, not the same person.

Mr. SANTORUM. Let me finish, and I will be happy to yield as I have continually. The fact that a child in utero is going through a crisis does not equate that the mother is going through a health crisis. There are lots of mothers of babies with multiple defects who carry that child to term or do things to try to help that child in utero survive. One does not equate to the other. The case of Vikki Stella--and I am just reporting--I understand the fact she was carrying a child with multiple disabilities. My heart grieves for her and for all women who have to go through such difficult pregnancies. It is horrible to find out that a child you want may not live long after birth. It is as compelling a story as you can present to me. The point is, the answer does not have to be the death of the child.

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I ask unanimous consent that the Senate proceed to a period of morning business.

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Tuesday, March 11, 2003, at 2:30 p.m. in Room 485 of the Russell Senate Office Building to consider the Committee's Views and Estimates on the President's FY 2004 Budget Request for Indian Programs.

Mr. SANTORUM. Mr. President, I ask unanimous consent that the Special Committee on Aging be authorized to meet on Tuesday, March 11, 2003 from 10 a.m. to 12 p.m. in Dirksen 628 for the purpose of conducting a hearing.

Mr. SANTORUM. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, March 11, 2003 at 9:30 a.m. to hold a hearing on Iraq: Reconstruction, Agenda Witnesses Panel 1: Mr. Eric Schwartz, Senior Fellow and Director, Independent Task Force on Post-Conflict Iraq, Council on Foreign Relations, Washington, DC; Dr. Gordon Adams, Director, Security Policy Studies Program; Elliott School of International Affairs, The George Washington University, Washington, DC; Ms. Sandra Mitchell, Vice President, Government Relations, International Rescue Committee, Washington, DC; Dr. Phebe Marr, Former Senior Fellow, National Defense University, Washington, DC.