The Right to Choose

THE RIGHT TO CHOOSE

Mr. DURBIN. I thank the Senator for coming to the floor and talking about this controversial issue because the Senate will have to face it. I am trying to recall, was there not a State statute in Kansas or——

Mrs. BOXER. Nebraska.

Mr. DURBIN. Nebraska relative to this so-called partial-birth abortion procedure? Is it not true that the same Supreme Court that is going to consider our bill ruled that you had to include, in the protection for the woman involved, if her health was at risk, she could go forward with the procedure? Is my memory correct that this Court, within the last year or two, made that decision?

Mrs. BOXER. It was in 2000. It was a case of a Nebraska law. And, yes, the Court found it unconstitutional.

What the authors of S. 3 will tell you is they have met the test. But what constitutional lawyers tell us is that the test isn't met at all. There is no exception for health. My colleague actually carried the health exception.

Now, this is what the Supreme Court said—and I am glad my colleague asked this question—in Stenberg v. Carhart. They basically said: If you are outlawing a medical procedure, you have to have a health exception.

The governing standard requires an exception "where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother."

Our cases have repeatedly invalidated statutes that in the process of regulating the methods of abortion impose significant health risks.

My friend is right on target. This is the Supreme Court.

Mr. DURBIN. I ask my friend from California, who has followed this issue more closely than any other Member, for those who are trying to follow this debate, when the Supreme Court says if you are going to write a law banning an abortion procedure, you have to acknowledge that if the mother is about to die, that procedure will be allowed. Then the Court went on to say in this case, if there is a significant health risk involved as far as the woman is concerned, you have to allow the procedure. Would the Senator from California give us indications of what that means when we talk about health risk and significant health risk? What are we saying? A complication late in pregnancy that is so significant as to give to that mother the right to terminate the pregnancy, could the Senator give us some illustrations of what kind of health risk we are talking about?

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Mrs. BOXER. What the physicians have told us is there are serious health consequences of banning safe procedures such as the one that will be banned in this bill. One is hemorrhage. People can die, they can lose blood, or be ill for a very long time. They can rupture their uterus and therefore never be able to carry a baby. They could get blood clots and have serious brain damage, an embolism, a stroke. There could be damage to nearby organs. There could even be paralysis. These are the terrible incidents that could happen to a woman if a doctor is in a situation of an emergency late-term procedure and is not able to use everything he has been able to use up until S. 3.

Mr. DURBIN. So for clarity, I ask the Senator, the bill we are going to be asked to vote on has an exception. This procedure is allowed if the life of the mother is at stake. But all of the significant health risks which you have just read, does this bill allow a doctor, in the midst of a medical emergency, to terminate a pregnancy if there is a significant health risk to the mother?

Mrs. BOXER. The answer is absolutely not. That is why it is so shocking to me. My friend knows because he worked hard on this. He tried to get a health exception. As a matter of fact, it was very strong language. Will my friend remind me what he said in making that health exception?

Mr. DURBIN. I offered an alternative to the bill that will be before us. I said, if late in a pregnancy a woman who is carrying a fetus is in danger of a grievous physical health risk, verified by two doctors—not just a doctor performing the procedure but another doctor, for a second opinion, has to verify it—then it would be allowed. That was defeated on the floor. What I tried to do was to narrow the exception, even probably more narrow than the Supreme Court said so my colleagues would give a doctor, in an extraordinary emergency situation, not life or death but one equally serious, at least in terms of the woman's future health. As the Senator from California probably will recall, that was defeated on the floor.

I ask the Senator from California this: If the Supreme Court has already said, don't send us a statute, don't send us a proposal that doesn't protect the health of the mother when there is a significant health risk late in the pregnancy because that violates what we found to be the right of privacy under Roe v. Wade, why are we now considering S. 3, this bill, which defies the Supreme Court and says to them, we know better, we are going to change your mind, we are going to send you something that doesn't meet the test in light of the Nebraska statute? Can the Senator from California explain why we are going through this?

Mrs. BOXER. Well, I would say politics is part of it, but I would also say there is an agenda in this Senate and in the House. That agenda is to overturn Roe, to keep on pushing through bills that challenge Roe directly. And Roe, as I said, is very clear on the health exception.

Let's go back to the first chart. The bottom line is, Roe is very clear:

In 1973, for the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe—

which is a fancy word for ban—

abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

This is the heart of Roe.

Mr. DURBIN. The Senator is saying this proposal we are receiving, banning a specific abortion procedure, does not allow an exception for the health of the mother.

Mrs. BOXER. That is right.

Mr. DURBIN. Even though the Supreme Court ruled 2 or 3 years ago on a State statute that tried to do the same thing that it clearly was unconstitutional or at least violative of Roe v. Wade, they have already thrown that out. Yet the Senate is going to be asked to vote again to eliminate an abortion procedure which a doctor may decide is in the best interest of a woman who, late in her pregnancy, facing an emergency, has a significant health risk; that is what we are being asked to vote on?

Mrs. BOXER. That is right. But it is even worse because the language TOM HARKIN had written into the bill, the sense-of-the-Senate language, is now being stripped out of the bill by the House. The reason we are here talking about this is, I want the Senate to disagree with what the House did. It is bad enough to do what we have done here without my vote—and I believe without yours, although I am not sure in the end how you voted.

The bottom line is, it is bad enough to ban a procedure and make no exception for the health of a woman. It is so violative of her rights and her dignity and of the respect that is due her. But in addition, they stripped out the language we added that said, maybe people, for whatever reason, are going to vote for this, but we also want to go on record in support of Roe. The reason we are here now is that the House, rather than take that language and send it off to the President, would have gotten their ban with a little sense-of-the-Senate language that supported Roe. No, the House had to prolong this, strip this out.

And now to get to conference, we have to have a motion to disagree with what the House did, which I hope we will disagree with what they did.

So what I was trying to do and what Harkin was trying to do—and we all were trying to do—is say: S. 3 has problems, but you should know we still support Roe.

Mr. DURBIN. I ask the Senator, is it your impression the House conferees and those who agreed in the Senate are really going after the heart of the issue in Roe v. Wade? It is their intention to overturn Roe v. Wade by reason of the fact they have stripped the language Senator Harkin offered affirming Roe v. Wade?

Mrs. BOXER. That is right.

Mr. DURBIN. And if we eliminated Roe v. Wade—and there are some in your State and in my State, too, who would say, do that, because of our personal, religious and philosophical beliefs—what protection would there be that an abortion procedure under any circumstances would be safe and legal in the United States?

Mrs. BOXER. It would be a disaster for women. I have noted that before Roe, 5,000 women a year died because there were very harsh laws. If Roe v. Wade was eliminated, women would not have the right to privacy in this matter. Early-stage abortion would not be between her and her doctor and her God and family, but it would be a matter for Senators to determine—and State Senators and assembly members and Governors all over this country. And a woman would risk her freedom if she had an abortion, just like we had before 1973.

So affirming Roe v. Wade is the right thing to do. It has made a difference in women's lives. More than anything, I think as our country matures, we recognize that women deserve to be treated with respect and dignity. It has been a long, hard road for women in this country, I say to my friend who is such a supporter of equality across the board. Women didn't even get to vote until 1920. We had to struggle. In 1973, I remember it very well. I remember women risking their lives to get an illegal abortion. I had read a case of a woman who was raped and she was so fearful and embarrassed and ashamed, she got an illegal, botched abortion. She was sick and the doctor even threatened to call the police on her.

Mr. DURBIN. I ask the Senator this question. I can recall in the time I have been in public service that the vocal supporters of Roe v. Wade and keeping abortion safe and legal used to contain in their ranks many women who remembered vividly from a personal experience or a family experience what it was like before Roe v. Wade, when women in desperate circumstances sought an abortion in an unhealthy, unsanitary, unclean surrounding, endangering their lives. I ask the
Senator, does she believe the national debate is different today because we have had 25 or 30 years of legal opportunities to terminate a pregnancy and, thank goodness, there are fewer of those women whose lives were lost or damaged because of these illegal and unsafe abortions that preceded them?

Mrs. BOXER. I think the Senator is right. The further we get away from those years, there is less memory. I think there is something else. I think most people—young people and middle-aged people—who don't have that many memories of it think Roe v. Wade will not be overturned; it is just a slogan.

Let me say what my friend knows so well. Roe v. Wade is hanging by a 5-to-4 vote in the Supreme Court. That is why I
think my colleagues keep coming back with this approach of banning this medical procedure, which many doctors have used because it was the safest one to save the life and health of a woman. They keep coming and they keep thinking someday the Court will reverse it and go 5-to-4 the other way. I think at that point women will rise up. But it is our job.
That is why I am so grateful to the Senator for coming over here. It is our job because we are lawmakers to look ahead and not wait for that crisis, and to make the point and to discuss what could happen to a woman. She could have a stroke if this procedure is outlawed. She could have a hemorrhage or a blood clot. She could become paralyzed. She could be infertile.
These are horrible things that can happen to our daughters, our granddaughters, and it could even be worse. We can have some States, if Roe were overturned, that could put a woman in jail, could put a doctor in jail for trying to assert a privacy right.

Mr. DURBIN. I will ask one last question of the Senator from California. First, let me say, though I personally oppose abortion, and I would counsel a woman in my family to look for an alternative, or adoption, and help in any way I could, I believe we have to really make a special effort to protect the legality of the decision that a woman ultimately makes in this situation, when her life and her health are at stake—a decision that should be made by her, her doctor, her conscience, and her family, as the Senator said.

What I found 21 years ago, when I came to Congress with that belief, was the startling discovery that so many people who opposed abortion also opposed family planning. That, to me, seems totally inconsistent—that you would not give to a woman options so that she could avoid an unplanned pregnancy.

I want to ask the Senator from California this: Based on what she has seen, and what I have seen in almost 21 years on Capitol Hill, if those people are successful in the Senate and House and eventually overturn Roe v. Wade, can the Senator give me some indication of what she thinks is next when it comes to issues of family planning—issues that women value as much as their Roe v. Wade rights, but those issues as well? Have we not seen repeatedly in the Congress the same voices who are calling for the overturning of Roe v. Wade also limiting options for women to plan the size of their family—the frequency of children in their family?

Mrs. BOXER. There is no question about it. With this administration, the very first thing the President did was put in place the international gag rule, which stopped nonprofits all over the world from getting Federal funds to use to help these women to plan their families.

Let me tell you what has happened. We have seen already an assault on a woman's right to choose. I think my colleague is absolutely right to point out that Roe is just one of their goals; it is their major goal, however. I will tell you what is happening. Federal regulations were issued by this administration that make embryos and fetuses, but not pregnant women, eligible for health benefits. What you will see is this is all leading up to the place where a woman eventually will not have a right to choose, or any rights at all when she is pregnant. In other words, pregnant women now cannot get the prenatal care; it is the fetus. We have never done that before. We have always recognized that it is the woman who is nurturing that child; that the woman gets the help and the child gets the nourishment.

There is legislation being pushed here to recognize an embryo as a person with rights separate and apart from the woman.
That is another move to set up a situation where abortion, even in the first minute, would be seen as murder. So this is what is happening today. There is moving legislation forcing some young women to make reproductive health choices alone and criminalizing caring adults who help them. There are attempts to block women's access to RU486, a drug that is proven safe and effective and would be an alternative to surgical abortion. There are attempts to block access to emergency contraception. There is a denial of Roe v. Wade protections to Federal employees and low-income women who rely on the Federal Government, who live in the District of Columbia, and to U.S. servicewomen living overseas, and women in Federal prison. These women cannot get the health care if they want to exercise their right to choose, whereas a wealthy woman can do that.

Here is your point: They are starving funding for family planning programs, both here and abroad. And there is also the cancellation of international family planning funding. We voted in Congress for $34 million for international family planning money. The Bush administration will not spend a penny. When you ask them why, they say these agencies are using it for abortion. That is plain untrue. It is untrue. They don't because they are audited and monitored, and they cannot.

In winding down this debate—and we have several hours left—I want to say why I think it is so important that we stand in favor of Roe v. Wade. We are going to go back to what the debate is really about. It is about standing up for the Senate language that was brought to us by the Senator from Iowa, Tom Harkin, with over 50 of us signing on and voting for it, that simply says it is the sense of the Senate that the decision of the Supreme Court in Roe v. Wade was appropriate and secures an important right, and such decision should not be overturned. It is a very straightforward and simple statement—elegant, if I may say so; it is an elegant amendment by the Senator from Iowa that says to the women of this country that we respect you and, as my friend said, he is personally opposed to abortion. You know what. That is so much that is right in this country of ours. That is what being pro-choice is—that each of us in our own hearts, with our own family, with our God, can decide this issue for ourselves, without Senators peering into our private decisions. What a horrible thought is that. Really, life is complicated enough without having a bunch of Senators deciding what we should do in the privacy of our own homes in the early stage of a pregnancy.

That is what Roe was—a very balanced decision. It says: If you want to go through with this pregnancy, absolutely that is your right, but if you do not, in the early stages it says to women: We respect you enough, we give you that dignity; we trust you enough to make that decision.

Senator Harkin said it right. This Senate stood up with him and we voted in favor and appended that language to the banning of this medical procedure. Our colleagues in the House looked at this—and they are so radical, I say to my friend—and rather than moving that bill right through to the President's desk with sense-of-the-Senate language that has no force of law, they chose to strip out this language from the bill, and now we have to take this bill to conference.

The reason I am here and the reason the Senator from Illinois is here tonight is to say we are going to take another stand in favor of Roe. We are going to vote to disagree with what the House did. We hope that vote will be large, and we hope that the conferees will, therefore, go into that conference and push hard to have this language added.

If this language is not added, this Senate is going on record with S. 3, minus this language, of saying: Women's health is just not important. I hope every woman in this country, whether they agree with Roe or they disagree with Roe, whether they themselves would make one decision or another, will come together and say: Pro-choice means that the Government respects the individual, and isn't that really what our country is all about?

I thank the Chair. I yield back my time.