Rick Santorum

Mr. SANTORUM

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. Will the Senator yield for a question?

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. 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. 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 suggested we would be willing to accept the amendment. She has requested that we have a rollcall vote of some sort. I am happy to agree on a reasonable time agreement.

Mr. SANTORUM. That is correct.

Mr. SANTORUM. We have been reviewing the one amendment. Has the Senator submitted all the other amendments? Only one amendment has been submitted, to my knowledge.

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

Mr. SANTORUM. Madam President, if I may respond very briefly, there is no evidence in any record, nor did she give any testimony, that this was a crisis pregnancy. Second, there is ample testimony and overwhelming evidence that this procedure is never necessary for the life or health of the mother. It is never used in a 3-day procedure. I won't go into great detail. That is the reason we have malpractice laws in this country. Doctors make very bad decisions and give bad advice to patients. It happens all the time. In this case, it happens with frequency. But there is dispositive, overwhelming evidence that the advice she was given was wrong. Because someone gives advice doesn't mean it is correct advice. She got bad advice and, unfortunately, it resulted in a heinous act being perpetrated in this case. I yield 10 minutes to the Senator from Kansas.

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. Second, I have another letter with an analysis done by Dr. Curtis Cook, Maternal Fetal Medicine, Michigan State College of Human Medicine, on the case of Coreen Costello. I will discuss both of these in detail later. But I ask unanimous consent that this letter be printed in the Record.

Mr. SANTORUM. Madam President, I want to yield 10 minutes to the Senator from Kansas, and thank him.

Mr. SANTORUM. Mr. President, on behalf of Senator Nickles, I state that the pending amendment offered by the Senator from Washington, Mrs. Murray, increases mandatory spending and, if adopted, would cause an increase in the deficit. Therefore, I raise a point of order against the amendment pursuant to section 207 of H. Con. Res. 68, the concurrent budget resolution on the budget for fiscal year 2000, as amended by S. Res. 304 from the 107th Congress.

Mr. SANTORUM. Madam President, I ask the Senator from California this. She keeps making the statement and I want to make sure I give her an opportunity to substantiate this statement. The statement is made repeatedly that obstetricians and gynecologists around the country are saying that this is medically necessary to preserve the health of the mother. Has one of those obstetricians or gynecologists submitted a circumstance by which this would be the case? And where have they said this is the case? I am asking. If the Senator from California is going to make a statement that obstetricians believe this is medically necessary to preserve the health of a mother, substantiate the statement. For 7 years I have asked this question. Seven years. It has been asked at hearings and in a variety of different forums. I understand why the OB/GYN association opposes this ban because they do not like anything that criminalizes their behavior. I understand that. I am sure anybody who does behavior outside the bounds of morality and, therefore, potentially criminal, would like laws that do not stop them from doing what they want to do. I understand why people do not want constraints on their actions, but we have laws because we believe there are certain actions that are so morally reprehensible that we want to prohibit them and at which we want consequences directed.

Mr. SANTORUM. Madam President, I want to make a couple of points, and then I will yield to my colleague. No. 1, the Senator from Oklahoma asked me to make a budget point of order on his behalf. I want to make it clear he has an SCHIP provision that is in the budget which they are marking up later this week. We will be on that subject. We will have plenty of opportunity to deal with this issue next week. I agree with the Senator from Illinois. We should have a provision covering women going through pregnancy, and be supportive of that. I will not be supportive of covering medications that would lead to a fertilized egg not implanted in the uterus. I believe life begins at conception. I will not support drugs that would prevent a conceived embryo to be implanted. I have mixed emotions about this amendment. But, nevertheless, it is roughly a $1 billion addition to the budget, and that should be done in the context of the budget, not on a partial-birth abortion bill. Finally, I would like to add to the record by unanimous consent a letter from Dr. Pamela Smith, who was the director in 1996 of the Department of Obstetrics and Gynecology at Mt. Sinai Medical Center in Chicago. She is a member of the Association of Professors of Obstetrics and Gynecology. In response to the case Senator Durbin has laid out, she has a response that is rather lengthy. But I will just quote one comment she said. . . . medically I would contend of all the abortion techniques currently available to her this was the worst one that could have been recommended for her. Again, that just proves the point. I ask unanimous consent to have this letter printed in the Record.

Mr. SANTORUM. If you can answer the question.

Mr. SANTORUM. Madam President, with all due respect to the Senator from California, she has not answered my question. That letter does not answer my question. I have asked not what could happen if abortions are not available. What I have asked is for a specific medical circumstance that someone can provide me where this procedure would be necessary to save the health of the mother. In 7 years of asking that question, I have not gotten an answer. I think that is significant, that if this is so important, if Members of the Senate are going to come here and say this is medically necessary to protect the health of the mother, then they have to have evidence to support that statement. Saying that this limits options and saying potentially it could have adverse--give me a circumstance, give me a case. The reason that no cases have been brought forward is because we have overwhelming testimony, dispositive testimony from physicians all across this country who say that it is never medically necessary, including the American Medical Association, which says this is a bad practice. Take the cases that are being presented today. Vikki Stella. Did I say the pregnancy was not a crisis in the sense the child had multiple birth defects? Is that a crisis pregnancy? Of course it is in the sense that the child does not have a chance or very much of a chance to survive long after birth. But that is not what I said. What I said was it was not a medical crisis for the mother, and there is no evidence the mother was in any physical danger. I have gone through this personally as----

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. 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. I am happy to yield.

Mr. SANTORUM

Mr. SANTORUM. I am happy to yield for a question.

Mr. SANTORUM. We resume today the debate on the issue of partial- birth abortion and Congress's fourth attempt to ban this procedure. There have been comments in the past about some of the descriptions we have used on the floor as to whether they are accurate, and whether some of the charts we have used are medically accurate charts. Some suggested in the line drawings we had depicted a fetus that was larger than the size of most in partial-birth abortions. In working with people from the medical community, we have come up with more realistic drawings to depict the actual procedure so people can graphically understand what is described in this legislation. I will read the description in the legislation and show how the chart behind me is representative of this description. We have tightened the definition. The reason we tightened the definition was in response to the U.S. Supreme Court that found the original definition in the congressional bill, which is similar to the one in Nebraska, was unduly vague, and, therefore, unconstitutional because of vagueness. We have taken further steps to make sure that by banning this procedure we are not including any other procedure that is used for late-trimester, late-term abortions. Let me read what is in the legislation today and then go through the charts to show how that comports with this definition. (1) the term ``partial-birth abortion'' means an abortion in which-- (A) the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother . . . Now, I break from the text as to what partial-birth abortions are. The procedure itself is done in a breech position, but there may be a case--and this is what we are taking into consideration, here, the presentation--where the doctor makes a mistake and cannot deliver the child for some reason in a breech position. As I know, having been the father of seven children, you do not want a breech delivery. That is a dangerous delivery. That is not a normal delivery. To authorize or to start a delivery in breech is a higher risk to the mother, No. 1. No. 2, for purposes of this procedure, that is what is described, that is what the doctors have said is the procedure which they would recommend. But there are always, in these medical procedures, chances for things to go awry so we take into consideration that if for some reason during this procedure the head is presented first, that will still be covered. or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus. Now, that is the description that is in the bill. Let me show graphically the process by which this abortion takes place. This is a picture of a fetus inside the mother's uterus with the gestational age of roughly 24 weeks. The gestational period is 40 weeks for normal development. We are talking about now 24 weeks, or better than halfway through the pregnancy. That is when the vast majority of partial-birth abortions occur. In fact, all of them occur after 20 weeks. Most of them occur 22, 24, 26 weeks. In the first picture we see the baby in the womb, in the normal fetal position. What has happened before this procedure occurs is the mother presents herself to the abortionist. And the abortionist, in making a determination to do a partial-birth abortion, gives the mother a medication to dilate her cervix so this procedure can then be performed. This dilation occurs over a 2-day period. The woman presents one day, the next day she stays at home, and the third day she arrives at the abortion clinic. I use abortion clinic advisedly because this procedure is not performed in hospitals. It is not taught at medical schools. It is done solely at abortion clinics. The doctor who created this procedure testified that the reason he created this procedure was not because this was a better medical procedure for women. This was not designed for women's health. He said, and I am quoting him, he designed this procedure because other late-term abortions, when women presented themselves into his office, took 45 minutes. He could do this procedure in 15 minutes. Therefore, he said, he can do more abortions; he can make more money. So the person who designed this procedure, the person who put the medical literature out on this procedure is very clear as to why he designed this procedure. It is quick. It is easier for him. And he can make more money because he can do more abortions in a day. So the mother, having been presented at the abortion clinic 2 days before, takes this drug. We heard from the Senator from Ohio yesterday, Senator DeWine, of instances where mothers in Ohio, two cases-- remember, this procedure was invented by a doctor in Ohio--two cases from a Dayton abortion clinic where the mother was given medicine to dilate her cervix and in two separate cases, because of the dilation, labor was induced and two different women delivered babies. One named Baby Hope lived 3\1/2\ hours and was not given medical treatment. I don't know all the facts as to why. Maybe it was an assessment that the child was too premature to live. The second baby, Baby Grace, was born and survived as a result of the live birth. So we are talking about children here. This is very important. We are talking about this little infant here, this fetus, that would otherwise be born alive. The definition of the bill, I repeat one more time, of a baby delivered in a breech position: . . . any part of the fetal trunk past the navel is outside the body of the mother for the purposes of performing an overt act that . . . will kill the . . . fetus. You cannot kill a fetus if it is not alive. So this is a very important part of this definition. When the baby is delivered, the baby must be alive. If the baby is dead, we are not talking about an abortion because the baby is already dead. We are talking about a living fetus, living baby. The first step now, the women presents herself, the cervix has been dilated, the physician goes in and grabs the baby's foot and begins to pull the baby into the birth canal in a breech position. Again, I repeat, no one preferably delivers a child in a breech position. It is just not what is medically recommended, but in this case we have the child being presented in a breech position. Again, you can see the size of the baby in relationship to the size of the hand of the doctor. Some will say, well, that baby is much bigger than a baby. This is a blown-up chart. Of course it is bigger. Look at the size of the child relative to the size of the hand of the physician who is performing this abortion. You will see the size is about the size of the hand, 8, 9 inches in length, which is roughly the size of a child at that gestational age. The child is pulled through the birth canal and presented. Remember, here is the child outside of the mother as described in the bill, outside of the mother beyond the navel. The child is alive. The child is alive and is being delivered in this breech position. But the child is alive at this point in time. But for what I am going to describe in charts 4 and 5, this child could be born alive. It would be born alive. It had the potential to survive. But that doesn't occur in the case of the partial-birth abortion. What happens next is the abortionist takes a pair of sharp scissors and, probing with their fingers to find the base of the baby's skull, the softer point here, below the bone that protects the brain, finds a soft spot and thrusts a pair of scissors into the base of a living child's head who would otherwise be born alive. One of the nurses who testified before Congress said she witnessed a partial-birth abortion and she witnessed the reaction of a child who was killed by one of these procedures and she said she saw the child's arms go out, flinch like a baby would do if you dropped it--sort of let it go. They let their arms and legs sort of go out. That is what this little child will go through as a result of this procedure. Can this child feel pain? Most assuredly. Its nervous system is developed. In fact, going back to the first chart, when the doctor is reaching in to try to grab the leg, as has been described in testimony, the child tries to get away from the instrument that is grabbing its foot. The scissors are thrust into the base of the skull. That very well may kill the child. I don't know. In some cases it probably would. Probably in most cases it would. But we are not done yet. We have to add insult to the injury. The doctor takes a suction catheter and, through the hole which is now in the base of the child's skull, he inserts a suction tube, and with that suction--tube he turns it on and suctions out the baby's brain. It collapses the baby's skull. For those of you who have held newborns, you know that their skull is very soft, pliable. So without anything inside, it has been suctioned out through force, the baby's head collapses, and the rest of the baby can be delivered. This is a procedure that is barbaric. It is barbaric. On a little baby who would otherwise be born alive--and if there is any question about that, I point to you Baby Hope and Baby Grace, who were ticketed for partial-birth abortions but were delivered prior to that. What we have suggested in the Senate now, for the fourth Congress in a row, is that a procedure that was developed by a doctor who testified that the reason he developed this procedure was that he could do more abortions, make more money, is not medically necessary under any circumstances. I have a quote here from Warren Hern. Warren Hern is a noted third- trimester abortionist. He has written books on late-term abortions. He does a lot of them. When he says, ``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 isn't Rick Santorum who has trouble with abortion, period--I admit that--this is someone who does abortions. This is someone who does late-term abortions. As I said, Dr. Warren Hern is the author of the standard textbook on abortion procedures. We have a situation where this procedure was designed simply so they could do more late-term abortions quicker. There is plenty of evidence--I will get into this later--that this procedure has profound, long-term health consequences to women. This is not, as Dr. Hern says, the safest procedure for women. There is no case--and I am going to underscore this 100 times, and I challenge anyone who opposes this legislation--anyone: If you are on the floor of the Senate, listening back home, listening--if anyone here, anyone across America, anyone around the world--and I want the Supreme Court to hear this--anyone can present to me a case, a factual situation where a partial-birth abortion is medically necessary vis-a- vis other types of abortions, if you can present to me one case, I will be shocked. That is because I have been asking this question for 7 years here on the floor of the Senate, outside, to groups--the folks who agree with me, the folks who disagree with me. I have asked one question: Tell me why this is medically necessary. Tell me why, when even abortionists say it is not medically necessary, where no medical school in the country teaches this procedure, tell me why we have to keep this brutality of killing a child literally inches away from being born, why we have to keep up this brutality that is done purely so doctors who are abortionists can make more money, legal in America. I ask again, anybody who comes here to the floor to debate this issue, who says we need a health exception, give me one case--one case. Seven years I have asked this question. Seven years I have asked this question. One case. Never has anyone even tried to put one together here on the Senate floor. I am hopeful the Senate will act on this bill. I am happy the minority whip, Senator Reid, has given us a list of amendments so we can proceed in an orderly fashion on this legislation. I see the Senator from Washington is here to offer her amendment. I certainly want to give her the opportunity to do that. I am looking forward to debate, not only on these amendments but to have a really good, honest debate--I underscore the word ``honest.'' There has been a lot of information--I will go through that, too--that has been put out by people who oppose this ban, everything from saying the anesthesia kills the baby to on down the line. There has been a lot of information that has been erroneous that has been put out by the other side. I am looking forward to a good, honest debate on this issue. I hope we can get an overwhelming vote in the Senate to ban a procedure that is horrific, brutal, and never medically necessary for any purpose. It is only necessary so we can have abortionists who do late-term abortions earn more money, and that isn't a good reason to allow this barbaric procedure to proceed. I yield the floor.

Mr. SANTORUM

Mr. SANTORUM. Mr. President, this morning the Senate will resume the consideration of S. 3, the partial-birth abortion bill. It is my understanding Senator Murray will be prepared to offer an amendment this morning. The majority leader has stated it is his intention to finish this important legislation by the end of the week. Senators wishing to offer amendments to the bill are encouraged to notify the managers of their intent so that we can proceed to an orderly consideration of the amendments. Under the previous unanimous consent agreement, at 11 a.m. today the Senate will return to the Estrada nomination and begin a discussion of the Senate's constitutional role of advise and consent. Members are encouraged to come to the Chamber and engage in this discussion. The Senate will recess from 12:30 to 2:15 p.m. for the weekly party lunches. Following the recess, the Senate will return to the consideration of the partial-birth abortion bill. Additional amendments are expected and therefore Members should anticipate votes this afternoon. Lastly, I know it was the hope of the majority leader to schedule a vote on a district judge on the calendar this morning. We attempted to schedule a vote at 10:30. At this point, we understand there is an objection to setting the vote on Ralph Erickson of North Dakota to be a U.S. District Judge for the District of North Dakota. We will continue to and hopefully work out a unanimous consent agreement. We will certainly notify Members if we are able to succeed in getting a vote set sometime this morning. I thank all Members.

Mr. SANTORUM. Madam President, I have not had a chance to see the amendment, but I want to thank the leader for his willingness to come forward and offer a set of amendments. It is a reasonable set of amendments, from my estimation. We have not run a check on our side to see if there are any amendments. We are in the process of doing that. I do not anticipate very many, if any, at this point. We are going to look at the amendment of Senator Murray. If we can, we will certainly allow that to go forward and we will certainly consider all the other amendments. If my colleagues can get them to us, I think we can fairly quickly enter into a unanimous consent agreement and move forward on this legislation. Again, I thank the Senator from Nevada for his willingness to come forward last night with this consent agreement. We are off to a good start in trying to get this bill done in a timely fashion this week, and I thank him for his cooperation. With respect to the issue of the judge, if the Senator does not want to vote on a judge, I know our leader would like to have a vote this morning, whether it is on a judge or some procedural matter. The leader would like to get Members to the Chamber for this discussion. Obviously, this is a vitally important discussion. The role of advise and consent is one of the more fundamental issues we have to grapple with, and our leader would like to have as much participation as possible. As is the case in the Senate, we usually cannot get that participation unless Senators are in the Chamber for a vote, and I think that is his intention. We will certainly work with the other side in making sure we can come up with some accommodation that will suit both sides.