Partial-Birth Abortion Ban Act of 2003 (Enrolled as Agreed to or Passed by
Both House and Senate)
--S.3--
One Hundred Eighth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and
held at the City of Washington on Tuesday,
the seventh day of January,
two thousand and three
An Act
To prohibit the procedure commonly
known as partial-birth abortion.
Be it enacted by the Senate and
House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Partial-Birth
Abortion Ban Act of 2003'.
SEC. 2. FINDINGS.
The Congress finds
and declares the following:
(1) A moral, medical, and ethical consensus
exists that the practice of performing a partial-birth abortion--an abortion in
which a physician deliberately and intentionally vaginally delivers a living,
unborn child's body until either the entire baby's head is outside the body of
the mother, or any part of the baby's trunk past the navel is outside the body
of the mother and only the head remains inside the womb, for the purpose of
performing an overt act (usually the puncturing of the back of the child's skull
and removing the baby's brains) that the person knows will kill the partially
delivered infant, performs this act, and then completes delivery of the dead
infant--is a gruesome and inhumane procedure that is never medically necessary
and should be prohibited.
(2) Rather than being an abortion procedure
that is embraced by the medical community, particularly among physicians who
routinely perform other abortion procedures, partial-birth abortion remains a
disfavored procedure that is not only unnecessary to preserve the health of the
mother, but in fact poses serious risks to the long-term health of women and in
some circumstances, their lives. As a result, at least 27 States banned the
procedure as did the United States Congress which voted to ban the procedure
during the 104th, 105th, and 106th Congresses.
(3) In Stenberg v.
Carhart, 530 U.S. 914, 932 (2000), the United States Supreme Court opined `that
significant medical authority supports the proposition that in some
circumstances, [partial birth abortion] would be the safest procedure' for
pregnant women who wish to undergo an abortion. Thus, the Court struck down the
State of Nebraska's ban on partial-birth abortion procedures, concluding that it
placed an `undue burden' on women seeking abortions because it failed to include
an exception for partial-birth abortions deemed necessary to preserve the
`health' of the mother.
(4) In reaching this conclusion, the Court
deferred to the Federal district court's factual findings that the partial-birth
abortion procedure was statistically and medically as safe as, and in many
circumstances safer than, alternative abortion procedures.
(5) However,
substantial evidence presented at the Stenberg trial and overwhelming evidence
presented and compiled at extensive congressional hearings, much of which was
compiled after the district court hearing in Stenberg, and thus not included in
the Stenberg trial record, demonstrates that a partial-birth abortion is never
necessary to preserve the health of a woman, poses significant health risks to a
woman upon whom the procedure is performed and is outside the standard of
medical care.
(6) Despite the dearth of evidence in the Stenberg trial
court record supporting the district court's findings, the United States Court
of Appeals for the Eighth Circuit and the Supreme Court refused to set aside the
district court's factual findings because, under the applicable standard of
appellate review, they were not `clearly erroneous'. A finding of fact is
clearly erroneous `when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that
a mistake has been committed'. Anderson v. City of Bessemer City, North
Carolina, 470 U.S. 564, 573 (1985). Under this standard, `if the district
court's account of the evidence is plausible in light of the record viewed in
its entirety, the court of appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have weighed the evidence
differently'. Id. at 574.
(7) Thus, in Stenberg, the United States
Supreme Court was required to accept the very questionable findings issued by
the district court judge--the effect of which was to render null and void the
reasoned factual findings and policy determinations of the United States
Congress and at least 27 State legislatures.
(8) However, under
well-settled Supreme Court jurisprudence, the United States Congress is not
bound to accept the same factual findings that the Supreme Court was bound to
accept in Stenberg under the `clearly erroneous' standard. Rather, the United
States Congress is entitled to reach its own factual findings--findings that the
Supreme Court accords great deference--and to enact legislation based upon these
findings so long as it seeks to pursue a legitimate interest that is within the
scope of the Constitution, and draws reasonable inferences based upon
substantial evidence.
(9) In Katzenbach v. Morgan, 384 U.S. 641 (1966),
the Supreme Court articulated its highly deferential review of congressional
factual findings when it addressed the constitutionality of section 4(e) of the
Voting Rights Act of 1965. Regarding Congress' factual determination that
section 4(e) would assist the Puerto Rican community in `gaining
nondiscriminatory treatment in public services,' the Court stated that `[i]t was
for Congress, as the branch that made this judgment, to assess and weigh the
various conflicting considerations * * *. It is not for us to review the
congressional resolution of these factors. It is enough that we be able to
perceive a basis upon which the Congress might resolve the conflict as it did.
There plainly was such a basis to support section 4(e) in the application in
question in this case.'. Id. at 653.
(10) Katzenbach's highly deferential
review of Congress' factual conclusions was relied upon by the United States
District Court for the District of Columbia when it upheld the `bail-out'
provisions of the Voting Rights Act of 1965 (42 U.S.C. 1973c), stating that
`congressional fact finding, to which we are inclined to pay great deference,
strengthens the inference that, in those jurisdictions covered by the Act, state
actions discriminatory in effect are discriminatory in purpose'. City of Rome,
Georgia v. U.S., 472 F. Supp. 221 (D.D.C. 1979) aff'd City of Rome, Georgia v.
U.S., 446 U.S. 156 (1980).
(11) The Court continued its practice of
deferring to congressional factual findings in reviewing the constitutionality
of the must-carry provisions of the Cable Television Consumer Protection and
Competition Act of 1992. See Turner Broadcasting System, Inc. v. Federal
Communications Commission, 512 U.S. 622 (1994) (Turner I) and Turner
Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180
(1997) (Turner II). At issue in the Turner cases was Congress' legislative
finding that, absent mandatory carriage rules, the continued viability of local
broadcast television would be `seriously jeopardized'. The Turner I Court
recognized that as an institution, `Congress is far better equipped than the
judiciary to `amass and evaluate the vast amounts of data' bearing upon an issue
as complex and dynamic as that presented here', 512 U.S. at 665-66. Although the
Court recognized that `the deference afforded to legislative findings does `not
foreclose our independent judgment of the facts bearing on an issue of
constitutional law,' its `obligation to exercise independent judgment when First
Amendment rights are implicated is not a license to reweigh the evidence de
novo, or to replace Congress' factual predictions with our own. Rather, it is to
assure that, in formulating its judgments, Congress has drawn reasonable
inferences based on substantial evidence.'. Id. at 666.
(12) Three years
later in Turner II, the Court upheld the `must-carry' provisions based upon
Congress' findings, stating the Court's `sole obligation is `to assure that, in
formulating its judgments, Congress has drawn reasonable inferences based on
substantial evidence.' 520 U.S. at 195. Citing its ruling in Turner I, the Court
reiterated that `[w]e owe Congress' findings deference in part because the
institution `is far better equipped than the judiciary to `amass and evaluate
the vast amounts of data' bearing upon' legislative questions,' id. at 195, and
added that it `owe[d] Congress' findings an additional measure of deference out
of respect for its authority to exercise the legislative power.'. Id. at 196.
(13) There exists substantial record evidence upon which Congress has reached
its conclusion that a ban on partial-birth abortion is not required to contain a
`health' exception, because the facts indicate that a partial-birth abortion is
never necessary to preserve the health of a woman, poses serious risks to a
woman's health, and lies outside the standard of medical care. Congress was
informed by extensive hearings held during the 104th, 105th, 107th, and 108th
Congresses and passed a ban on partial-birth abortion in the 104th, 105th, and
106th Congresses. These findings reflect the very informed judgment of the
Congress that a partial-birth abortion is never necessary to preserve the health
of a woman, poses serious risks to a woman's health, and lies outside the
standard of medical care, and should, therefore, be banned.
(14) Pursuant
to the testimony received during extensive legislative hearings during the
104th, 105th, 107th, and 108th Congresses, Congress finds and declares that:
(A) Partial-birth abortion poses serious risks to the health of a woman
undergoing the procedure. Those risks include, among other things: An increase
in a woman's risk of suffering from cervical incompetence, a result of cervical
dilation making it difficult or impossible for a woman to successfully carry a
subsequent pregnancy to term; an increased risk of uterine rupture, abruption,
amniotic fluid embolus, and trauma to the uterus as a result of converting the
child to a footling breech position, a procedure which, according to a leading
obstetrics textbook, `there are very few, if any, indications for * * * other
than for delivery of a second twin'; and a risk of lacerations and secondary
hemorrhaging due to the doctor blindly forcing a sharp instrument into the base
of the unborn child's skull while he or she is lodged in the birth canal, an act
which could result in severe bleeding, brings with it the threat of shock, and
could ultimately result in maternal death.
(B) There is no credible
medical evidence that partial-birth abortions are safe or are safer than other
abortion procedures. No controlled studies of partial-birth abortions have been
conducted nor have any comparative studies been conducted to demonstrate its
safety and efficacy compared to other abortion methods. Furthermore, there have
been no articles published in peer-reviewed journals that establish that
partial-birth abortions are superior in any way to established abortion
procedures. Indeed, unlike other more commonly used abortion procedures, there
are currently no medical schools that provide instruction on abortions that
include the instruction in partial-birth abortions in their curriculum.
(C) A prominent medical association has concluded that partial-birth abortion is
`not an accepted medical practice', that it has `never been subject to even a
minimal amount of the normal medical practice development,' that `the relative
advantages and disadvantages of the procedure in specific circumstances remain
unknown,' and that `there is no consensus among obstetricians about its use'.
The association has further noted that partial-birth abortion is broadly
disfavored by both medical experts and the public, is `ethically wrong,' and `is
never the only appropriate procedure'.
(D) Neither the plaintiff in
Stenberg v. Carhart, nor the experts who testified on his behalf, have
identified a single circumstance during which a partial-birth abortion was
necessary to preserve the health of a woman.
(E) The physician credited
with developing the partial-birth abortion procedure has testified that he has
never encountered a situation where a partial-birth abortion was medically
necessary to achieve the desired outcome and, thus, is never medically necessary
to preserve the health of a woman.
(F) A ban on the partial-birth
abortion procedure will therefore advance the health interests of pregnant women
seeking to terminate a pregnancy.
(G) In light of this overwhelming
evidence, Congress and the States have a compelling interest in prohibiting
partial-birth abortions. In addition to promoting maternal health, such a
prohibition will draw a bright line that clearly distinguishes abortion and
infanticide, that preserves the integrity of the medical profession, and
promotes respect for human life.
(H) Based upon Roe v. Wade, 410 U.S. 113
(1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992), a governmental
interest in protecting the life of a child during the delivery process arises by
virtue of the fact that during a partial-birth abortion, labor is induced and
the birth process has begun. This distinction was recognized in Roe when the
Court noted, without comment, that the Texas parturition statute, which
prohibited one from killing a child `in a state of being born and before actual
birth,' was not under attack. This interest becomes compelling as the child
emerges from the maternal body. A child that is completely born is a full, legal
person entitled to constitutional protections afforded a `person' under the
United States Constitution. Partial-birth abortions involve the killing of a
child that is in the process, in fact mere inches away from, becoming a
`person'. Thus, the government has a heightened interest in protecting the life
of the partially-born child.
(I) This, too, has not gone unnoticed in the
medical community, where a prominent medical association has recognized that
partial-birth abortions are `ethically different from other destructive abortion
techniques because the fetus, normally twenty weeks or longer in gestation, is
killed outside of the womb'. According to this medical association, the `partial
birth' gives the fetus an autonomy which separates it from the right of the
woman to choose treatments for her own body'.
(J) Partial-birth abortion
also confuses the medical, legal, and ethical duties of physicians to preserve
and promote life, as the physician acts directly against the physical life of a
child, whom he or she had just delivered, all but the head, out of the womb, in
order to end that life. Partial-birth abortion thus appropriates the terminology
and techniques used by obstetricians in the delivery of living
children--obstetricians who preserve and protect the life of the mother and the
child--and instead uses those techniques to end the life of the partially-born
child.
(K) Thus, by aborting a child in the manner that purposefully
seeks to kill the child after he or she has begun the process of birth,
partial-birth abortion undermines the public's perception of the appropriate
role of a physician during the delivery process, and perverts a process during
which life is brought into the world, in order to destroy a partially-born
child.
(L) The gruesome and inhumane nature of the partial-birth abortion
procedure and its disturbing similarity to the killing of a newborn infant
promotes a complete disregard for infant human life that can only be countered
by a prohibition of the procedure.
(M) The vast majority of babies killed
during partial-birth abortions are alive until the end of the procedure. It is a
medical fact, however, that unborn infants at this stage can feel pain when
subjected to painful stimuli and that their perception of this pain is even more
intense than that of newborn infants and older children when subjected to the
same stimuli. Thus, during a partial-birth abortion procedure, the child will
fully experience the pain associated with piercing his or her skull and sucking
out his or her brain.
(N) 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,
making it increasingly difficult to protect such life. Thus, Congress has a
compelling interest in acting--indeed it must act--to prohibit this inhumane
procedure.
(O) For these reasons, Congress finds that partial-birth
abortion is never medically indicated to preserve the health of the mother; is
in fact unrecognized as a valid abortion procedure by the mainstream medical
community; poses additional health risks to the mother; blurs the line between
abortion and infanticide in the killing of a partially-born child just inches
from birth; and confuses the role of the physician in childbirth and should,
therefore, be banned.
SEC. 3. PROHIBITION ON PARTIAL-BIRTH ABORTIONS.
(a) IN GENERAL- Title 18, United States Code, is amended by inserting after
chapter 73 the following:
`CHAPTER 74--PARTIAL-BIRTH ABORTIONS
`Sec.
`1531. Partial-birth abortions prohibited.
`Sec. 1531.
Partial-birth abortions prohibited
`(a) Any physician who, in or
affecting interstate or foreign commerce, knowingly performs a partial-birth
abortion and thereby kills a human fetus shall be fined under this title or
imprisoned not more than 2 years, or both. This subsection does not apply to a
partial-birth abortion that is necessary to save the life of a mother whose life
is endangered by a physical disorder, physical illness, or physical injury,
including a life-endangering physical condition caused by or arising from the
pregnancy itself. This subsection takes effect 1 day after the enactment.
`(b) As used in this section--
`(1) the term `partial-birth abortion'
means an abortion in which the person performing the abortion--
`(A)
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, 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; and
`(2) the
term `physician' means a doctor of medicine or osteopathy legally authorized to
practice medicine and surgery by the State in which the doctor performs such
activity, or any other individual legally authorized by the State to perform
abortions: Provided, however, That any individual who is not a physician or not
otherwise legally authorized by the State to perform abortions, but who
nevertheless directly performs a partial-birth abortion, shall be subject to the
provisions of this section.
`(c)(1) The father, if married to the mother
at the time she receives a partial-birth abortion procedure, and if the mother
has not attained the age of 18 years at the time of the abortion, the maternal
grandparents of the fetus, may in a civil action obtain appropriate relief,
unless the pregnancy resulted from the plaintiff's criminal conduct or the
plaintiff consented to the abortion.
`(2) Such relief shall include--
`(A) money damages for all injuries, psychological and physical, occasioned by
the violation of this section; and
`(B) statutory damages equal to three
times the cost of the partial-birth abortion.
`(d)(1) A defendant accused
of an offense under this section may seek a hearing before the State Medical
Board on whether the physician's conduct was necessary to save the life of the
mother whose life was endangered by a physical disorder, physical illness, or
physical injury, including a life-endangering physical condition caused by or
arising from the pregnancy itself.
`(2) The findings on that issue are
admissible on that issue at the trial of the defendant. Upon a motion of the
defendant, the court shall delay the beginning of the trial for not more than 30
days to permit such a hearing to take place.
`(e) A woman upon whom a
partial-birth abortion is performed may not be prosecuted under this section,
for a conspiracy to violate this section, or for an offense under section 2, 3,
or 4 of this title based on a violation of this section.'.
(b) CLERICAL
AMENDMENT- The table of chapters for part I of title 18, United States Code, is
amended by inserting after the item relating to chapter 73 the following new
item:
--1531'.
Speaker of the House of Representatives.
Vice President of the
United States and
President of the Senate.
