F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 760.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 6 minutes. Mr. Speaker, H.R. 760, the Partial-Birth Abortion Ban Act of 2003, would prohibit the gruesome and inhumane procedure of partial-birth abortion that, unfortunately, we are all too familiar with. An abortionist who violates this ban would be subject to fines, a maximum of 2 years' imprisonment, or both. The bill includes an exception for those situations in which a partial-birth abortion is deemed necessary to save the life of the mother. An identical bill, H.R. 4965, was approved by this Chamber last summer by a 274-151 vote, but the then- Democratic leadership in the other body chose not to bring it up for a vote. A moral, medical, and ethical consensus exists that partial-birth abortion is an unsafe and inhumane procedure that is never medically necessary and should be prohibited. Contrary to the claims of advocates of this gruesome procedure, the procedure remains an untested, unproven, and potentially dangerous procedure that has never been embraced by the medical profession. Unfortunately, two Federal bans that were passed by prior Republican Congresses and sent to President Clinton's desk were promptly vetoed. In June 2000, the United States Supreme Court struck down Nebraska's partial-birth abortion ban, which was similar, but not identical, to bans previously passed by Congress. The Court concluded that Nebraska's ban did not clearly distinguish the prohibited procedure from the other more commonly performed second trimester abortion procedures. The Court also held, on the basis of highly disputed factual findings of the district court, that the law was required to include an exception for partial-birth abortions deemed necessary to preserve the health of a woman. H.R. 760's new definition of partial-birth abortion addresses the Court's first concern by clearly and unambiguously defining the prohibited procedure. The bill also addresses the Court's second objection to the Nebraska law by including extensive congressional findings based upon medical evidence received in a series of legislative hearings, that, contrary to the factual findings of the district court in Stenberg, a partial-birth abortion is never medically necessary to preserve a woman's health, poses serious risk to a woman's health, and in fact is below the requisite standard of medical care. H.R. 760's lack of a health exception is based upon Congress's factual determination that partial-birth abortion is a dangerous procedure that does not serve the health of any woman. The Supreme Court has a long history, particularly in the area of civil rights, of deferring to Congress's factual conclusions. In doing so, the Court has recognized that Congress's institutional structure makes it better suited than the judiciary to assess facts upon which it will make policy determinations. As Justice Rehnquist has stated, the Court must be, ``particularly careful not to substitute its judgment of what is desirable for that of Congress, or its own evaluation of evidence for a reasonable evaluation by the legislative branch.'' Thus in Katzenback v. Morgan, while addressing section 4(e) of the Voting Rights Act of 1965, the Court deferred to Congress's factual determination that section 4(e) would assist the Puerto Rican community in ``gaining nondiscriminatory treatment in public services,'' stating: ``It is not for us to review the congressional resolution'' of the various issues it had before it to consider. Rather, ``It is enough that we are able to perceive a basis upon which the Congress might resolve the conflict as it did.'' Similarly in Fullilove v. Klutznick, when reviewing the minority business enterprise provision of the Public Works Employment Act of 1977, the Court repeatedly cited and deferred to the legislative record and factual conclusions of Congress to uphold the provisions as an appropriate exercise of congressional authority. In addition to the health risks to women who undergo the partial- birth abortion procedure, it is particularly brutal and inhumane to the nearly born infant as virtually all the infants upon whom this procedure is performed are alive and feel excruciating pain. Furthermore, a child upon whom a partial-birth abortion is being performed will not be significantly affected by medication administered to the mother during the performance of the procedure. As credible testimony received by the Subcommittee on the Constitution confirms, ``Current methods for providing maternal anesthesia during partial-birth abortions are unlikely to prevent the experience of pain and stress'' that the child will feel during the procedure. Thus, claims that a child is almost certain to be either dead or unconscious and near death prior to the commencement of the partial-birth abortion are unsubstantiated. H.R. 760 enjoys overwhelming support from members of both parties precisely because of the barbaric nature of this procedure and the dangers it poses to women who undergo it. Additionally, the American Medical Association has recognized that partial-birth abortions are ``ethically different from other destructive abortion techniques because the fetus, normally 20 weeks or longer in gestation, is killed out of the womb.'' Thus, the ``partial birth'' gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body. Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns but all vulnerable and innocent human life. Thus, Congress has a compelling interest in acting, indeed it must, to prohibit this inhumane procedure. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from New Jersey (Mr. Smith).

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute. Mr. Speaker, we have heard from the people who oppose this legislation that it infringes on Roe v. Wade. Roe v. Wade very clearly gives Congress and the several States the right to prohibit abortions on viable babies. There is one State in the Union, Kansas, that collects statistics on partial-birth abortions. Let me quote from page 17 of the committee report: ``The experiences of the State of Kansas, the only State to require physicians to report the performance of partial-birth abortions, are instructive on this point. Under its mandatory reporting scheme for partial-birth abortions, in 1998, 58 partial-birth abortions were performed, all of which were on viable babies and all of which were necessary to prevent a substantial or irreversible impairment of a major body function, which was the impairment of the patient's mental function. ``Similarly, in 1990, 182 such procedures were performed,'' all for the same reason, and again, all on viable babies. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 257, I call up from the Speaker's table the Senate bill (S. 3) to prohibit the procedure commonly known as partial-birth abortion, and ask for its immediate consideration.

Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 257, I offer a motion.

Mr. SENSENBRENNER. Mr. Speaker, pursuant to clause 1 of rule XXII, I offer a motion.

Mr. SENSENBRENNER. Mr. Speaker, will the gentleman yield?

Mr. SENSENBRENNER. Mr. Speaker, as I understand it, the motion says that the conferences should be open, and I am pleased to support the motion.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume, and I just want to say that I support the motion, and hope it passes. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I rise in support of H.R. 361. This legislation, which is known as the SPARTA Act, is important for the sports industry, which in recent years has become ever more just so that, an industry. The thrill of pure athletic accomplishment has been overwhelmed as a motivating incentive by the desire for economic gain. While understandable, we cannot allow this desire to lead to the abuse of individuals, the public and private universities and colleges, and the system itself. We as Americans love sports. Who does not enjoy sitting back on a relaxing weekend watching their favorite college and professional sports teams performing? In Wisconsin, every Sunday during the fall we watch the Green Bay Packers with the intensity and caring of a mother bear watching her cubs. We have dedicated a month to an American tradition called March Madness and watch some of the most athletically gifted students in the Nation compete in the drama which can have only one victor at the day's end. However, even with all this talent, only 1 percent of the NCAA athletes make it to the professional level, and then often only in a back-up role. For those who do make it to the big leagues, the rewards are great. Athlete agents want to reap this reward, as well. As a result, some agents deploy questionable tactics in a generally unregulated field. They send runners to befriend these athletes and give them money and other enticements, and support the friends and family of the athlete with money and gifts. This is done in consideration of an agreement for future representation, which is illegal by NCAA standards and causes the athlete to lose their collegiate eligibility. In many States, the penalty to the agent is nothing. Mr. Speaker, the Uniform Athlete Agents Act, which addresses this situation, has been adopted by over 20 States. However, given the nature of intercollegiate sports, State boundaries are crossed constantly. Agents can forum-shop by waiting in a State that has not adopted the UAAA and wait for the visiting team to arrive before approaching college stars. Because of this unique situation, this Federal solution is necessary. Geographic loopholes must be closed so that agents will comply with the modest guidelines set forth for recruitment by the NCAA. Mr. Speaker, this bill deserves the full support of the House, and I urge its adoption.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that the Committee on the Judiciary have permission to file a supplemental report on the bill H.R. 1086, the Standards Development Organization Advancement Act of 2003. This request has been cleared by the minority.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Sam Johnson). (Mr. SAM JOHNSON of Texas asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 7 minutes to the gentleman from Illinois (Mr. Hyde), my distinguished predecessor as chairman of the Committee on the Judiciary. (Mr. HYDE asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Virginia (Mr. Forbes).

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 30 seconds. Mr. Speaker, I am getting a little sick of hearing that this is an assault on the first amendment. We are using constitutional processes to overturn a Supreme Court decision that made no sense. Now, last year a lot of my colleagues, not me, voted for a campaign finance reform bill that significantly restricted people's rights to express themselves on political issues. And that was emaciated by a lower Federal court, and it probably will be declared unconstitutional as well by the Supreme Court. So let us be consistent, the first amendment is not absolute. Mr. Speaker, I yield 2 minutes to the gentleman from Iowa (Mr. King).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. Hostettler).

Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my time. Mr. Speaker, the Constitution of the United States was ratified and came into effect in 1789. For 200 years, nobody seriously said that desecrating the American flag violated the first amendment to the Constitution. In fact, the Federal Government, 48 States and the District of Columbia passed statutes declaring flag desecration criminal conduct and prescribing criminal penalties. It was only after 200 years and the Vietnam War that a flag desecration case claiming that first amendment rights were violated reached the Supreme Court of the United States. And what were the facts of the Johnson case? The Johnson case did not involve protesting the Vietnam War. It was burning the flag in front of the 1984 Republican National Convention that was held in Dallas. Five years later, the case reached the Supreme Court. They decided, by a 5 to 4 margin, that flag desecration was political expression that enjoyed constitutional protection. And that was the first time in over 200 years of this Constitution being affected that the courts ruled that that type of activity was constitutionally protected. I agree with what Chief Justice Rehnquist said in the dissenting opinion: ``I cannot agree that the first amendment invalidates the act of Congress and the laws of 48 of the 50 States which made criminal the public burning of the flag.'' If Members agree that the first amendment does prohibit this, then vote ``no'' on the constitutional amendment. I do not impugn anybody's patriotism. This is a legitimately held political position. But if my colleagues think that the Constitution should allow a criminal statute to prevent the public desecration of the American flag, the only way this can be accomplished is through the strong medicine of amending the Constitution. The Supreme Court has twice said that if this is attempted to be done by statute, the first amendment is violated. I think that the government should be able to prevent the physical desecration of the American flag no matter how it is done. That is why I support this amendment, and I would hope that over two-thirds of the Members of this House of Representatives will support this amendment when we vote on it shortly. Mr. S0UDER. Mr. Speaker, for more than two hundred years, the American flag has occupied a unique position as the symbol of our nation. During the Second World War, U.S. Marines fought hand to hand against thousands of Japanese at Iwo Jima. Upon reaching the top of Mount Suribachi, a group of these Marines raised a piece of pipe and from one end fluttered a flag. This ascent cost nearly 6,000 American lives. As you know, the Iwo Jima Memorial in Arlington National Cemetery memorializes that event. There would seem to be little question about the power of Congress to prohibit the mutilation of this monument. The flag itself can be seen as a monument, subject to similar protection. It is true that a person may, in a sense, ``own'' the flag. But this ownership is subject to special burdens and responsibilities. Congress has prescribed detailed rules for the design of the flag, the time and occasion of the flag's display, the position and manner of its display, respect for the flag and conduct during hoisting, and lowering and passing the flag. With the exception of Alaska and Wyoming, all the States have statutes prohibiting the burning of the flag. When the desecration of the flag is used as a protest, far more than a single flag is being violated. The devotion of every American who has expended their blood, sweat, and tears for this great nation is being battered. This amendment takes on even more importance given the events of September 11th. After watching the horrific events unfold on television, our nation came together through the patriotic display of old glory. The flag became a rallying point and sent a message to our enemies that we will not back down. I commend the gentleman from California for this important piece of legislation. As it is phrased, H.J. Res. 4 would permit Congress to enact laws addressing physical desecration of our flag. Passage of this legislation through both the House and Senate would allow the American people to vote on this amendment. In doing so we will not only affirm the right to speak one's opinions, but also to protect the symbol of those freedoms that thousands of Americans have died giving their last full measure of devotion to protect.

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr. Paul). (Mr. PAUL asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Virginia (Mr. Goodlatte). (Mr. GOODLATTE asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute. Mr. Speaker, this proposed constitutional amendment does not restrict anybody from saying whatever they want to say about the flag, about the government, about their opinions of any public official, of any candidate for office, of the policies that have been made by the Federal Government, the State government or the local government. What it does do is to prohibit offensive acts, such as burning the flag or, in my own State, using the Johnson and Eichman decisions, the State Supreme Court said that defecating on the flag was an act that was a protected political expression under the first amendment to the United States Constitution. The only way to put sense back into the law is to pass H.J. Res. 4. Mr. Speaker, I yield 1 minute to the gentlewoman from Michigan (Mrs. Miller).

Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, the gentleman from North Carolina (Mr. Watt) graduated from one of the finest law schools in the country. His speech just concluded and his amendment showed that he learned his constitutional law well from Professor Robert Bork, who is one of the outstanding constitutional scholars in the country. The only difference between the Watt substitute amendment and the constitutional amendment introduced by the gentleman from California (Mr. Cunningham) is the words ``not inconsistent with the first article of amendment to this Constitution.'' What his amendment does is constitutionally codify the Johnson and Eichman decisions that said that flag desecration is protected free speech by the first amendment to the United States Constitution. So the gentleman from North Carolina's qualifying phrase is legislative sleight of hand that will prevent any future Supreme Court from deciding they made a mistake in the Johnson decision and in the Eichman decision. For that reason and for that reason alone, this amendment should be rejected, because it does the exact opposite to what the gentleman from California and his cosponsors are attempting to do in House Joint Resolution 4. It writes into the Constitution Supreme Court decisions that a vast majority of the American public believe were erroneously decided. Never before has Congress tried to do this. I just thank the Lord that they have not. Because if someone tried to constitutionally codify the separate but equal decisions of the United States Supreme Court in the late 1890s, Brown v. Board of Education would never have been possible and would never have been constitutional. That is one of the things that has given minorities in this country the opportunity for education, to be able to graduate from high school and go to a good college and go to the top law schools in the country. So I think that we should hit this amendment head-on. We should vote for it or vote against it, patriots all; but we should not attempt to put into the Constitution the effect of the United States Supreme Court decisions, two of them, in fact, that have brought us to this point here. Let me repeat. The Watt substitute amendment puts into the Constitution the Johnson and the Eichman decisions that state that physical desecration of the American flag is conduct that is protected by the first amendment to the United States Constitution. Vote ``no'' on the Watt substitute amendment and pass the resolution. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute. Mr. Speaker, there is a difference between the Court decisions on flag desecration and the Court decisions on burning crosses and painting swastikas on synagogues. On the one hand, the Court has said that flag desecration is protected by the first amendment as free speech or free political expression. The Supreme Court has never struck down an anticross-burning law or a hate crime law that makes it a crime to paint a swastika on a synagogue as political expression protected by the first amendment to the United States Constitution. That is why we are here debating this constitutional amendment, because there are a lot of us that believe that the Supreme Court was wrong when they decided that desecrating the flag was political expression protected by the first amendment. Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr. Cunningham).

Mr. SENSENBRENNER. Mr. Speaker, reclaiming my time, what it does do is, in order to prevent flag desecration, it requires the Supreme Court of the United States to admit it made a mistake and expressly overrule both the Johnson and Eichman decisions. The Supreme Court of the United States does not overrule previous decisions very often. It did it in Brown v. The Board of Education. But not very often in other major areas, particularly in the interpretation of constitutional law, does the Supreme Court of the United States do it. The way to hit this issue is head on. If you do not like this amendment, vote ``no,'' but do not adopt the Watts substitute amendment, which merely tosses the ball back to the Supreme Court, which twice has told us that flag desecration is constitutionally protected. The only way to reverse what the Supreme Court has done for sure is to defeat the Watts substitute amendment and pass the underlying bill introduced by the gentleman from California (Mr. Cunningham). Mr. Speaker, I ask for a ``no'' vote on the substitute, a ``yes'' vote on passage of the constitutional amendment.