[House Report 108-288]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 108-288
======================================================================
PARTIAL-BIRTH ABORTION BAN ACT OF 2003
_______
September 30, 2003.--Ordered to be printed
_______
Mr. Sensenbrenner, from the committee of conference, submitted the
following
CONFERENCE REPORT
[To accompany S. 3]
The committee of conference on the disagreeing votes of
the two Houses on the amendment of the House to the bill (S.
3), to prohibit the procedure commonly known as partial-birth
abortion, having met, after full and free conference, have
agreed to recommend and do recommend to their respective Houses
as follows:
That the Senate recede from its disagreement to the
amendment of the House and agree to the same with an amendment
as follows:
In lieu of the matter proposed to be inserted by the
House amendment, insert the following:
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 highlydeferential
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
ofconverting 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:
``74. Partial-birth abortions....................................1531''.
And the House agree to the same.
F. James Sensenbrenner, Jr.,
Henry Hyde,
Steve Chabot,
Managers on the Part of the House.
Orrin Hatch,
Rick Santorum,
Mike DeWine,
Managers on the Part of the Senate.
JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE
The managers on the part of the House and the Senate at
the conference on the disagreeing votes of the two Houses on
the amendment of the House to the bill (S. 3), to prohibit the
procedure commonly known as partial-birth abortion, submit the
following joint statement to the House and the Senate in
explanation of the effect of the action agreed upon by the
managers and recommended in the accompanying conference report:
The House amendment struck all the Senate bill after the
enacting clause and inserted a substitute text.
The Senate recedes from its disagreement to the amendment
of the House with an amendment that is a substitue for the
Senate bill and the House amendment. The differences between
the Senate bill, the House amendment, and the substitute agreed
to in conference are noted below, except for clerical
corrections, conforming changes made necessary by agreements
reached by the conferees, and minor drafting and clarifying
changes.
Section 1. Short title
Section 1 of the conference report is identical to
Section 1 of the House amendment and Section 1 of the Senate
bill. Section 1 states that the short title of this measure is
the ``Partial-Birth Abortion Ban Act of 2003.''
Section 2. Findings
Paragraph (1) in Section 2 of the conference report is
substantially similar, with clarifications, to paragraph (1) in
Section 2 of the House passed bill and paragraph (1) in Section
2 of the Senate passed bill. In paragraph (1) Congress finds
that 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 child's brains)
that the person knows will kill the partially delivered living
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.
Paragraph (2) in Section 2 of the conference report is
identical to paragraph (2) in Section 2 of the House amendment
and paragraph (2) in Section 2 of the Senate bill. In paragraph
(2), Congress finds that 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. Congress also finds that 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.
Paragraph (3) in Section 2 of the conference report is
identical to paragraph (3) in Section 2 of the House amendment
and paragraph (3) in Section 2 of the Senate bill. In paragraph
(3), Congress finds that in Stenberg v. Carhart, 530 U.S. 914,
932 (2000), the United States Supreme Court, which did not have
in front of it the extensive factual record compiled by
Congress, construed the record in that case to support ``the
proposition that in some circumstances, [partial-birth
abortion] would be the safest procedure'' for pregnant women
who wish to undergo an abortion. Congress also finds that as a
result of having reached this conclusion the Court struck down
the State of Nebraska's ban on partial-birth abortion
procedures, concluding that it failed to include an exception
for partial-birth abortions deemed necessary to preserve the
``health'' of the mother, and placed an ``undue burden'' on
women seeking abortions.
Paragraph (4) in Section 2 of the conference report is
identical to paragraph (4) in Section 2 of the House amendment
and paragraph (4) in Section 2 of the Senate bill. In paragraph
(4),Congress finds that the Court's decision was based on 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--
findings which are contradicted by Congress's extensive factual record
presented and compiled during the 104th, 105th, 107th, and 108th
Congresses.
Paragraph (5) in Section 2 of the conference report is
substantially similar, with clarifications, to paragraph (5) in
Section 2 of the House passed bill and paragraph (5) in Section
2 of the Senate passed bill. In paragraph (5) Congress finds
that substantial evidence presented at the Stenberg trial, and
the overwhelming evidence that was 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 of the
standard of medical care.
Paragraph (6) in Section 2 of the conference report is
identical to paragraph (6) in Section 2 of the House amendment
and paragraph (6) in Section 2 of the Senate bill. In paragraph
(6), Congress finds that 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.''
Congress also finds that 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, North Carolina, 470 U.S. 564, 573 (1985). Congress
also finds that 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.
Paragraph (7) in Section 2 of the conference report is
identical to paragraph (7) in Section 2 of the House amendment
and paragraph (7) in Section 2 of the Senate bill. In paragraph
(7), Congress finds that 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.
Paragraph (8) in Section 2 of the conference report is
identical to paragraph (8) in Section 2 of the House amendment
and paragraph (8) in Section 2 of the Senate bill. In paragraph
(8), Congress finds that under well-settled Supreme Court
jurisprudence, it is not bound to accept the same factual
findings that the Supreme Court was bound to accept in Stenberg
under the ``clearly erroneous'' standard. Congress also finds
that it 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.
Paragraph (9) in Section 2 of the conference report is
identical to paragraph (9) in Section 2 of the House amendment
and paragraph (9) in Section 2 of the Senate bill. In paragraph
(9), Congress finds that 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.
Paragraph (10) in Section 2 of the conference report is
substantively identical, with technical clarifications, to
paragraph (10) in Section 2 of the House amendment and
paragraph (10) in Section 2 of the Senate bill. In paragraph
(10), Congress finds that Katzenbach's highly deferential
review of Congress's 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), affd, 446 U.S. 156 (1980).
Paragraph (11) in Section 2 of the conference report is
identical to paragraph (11) in Section 2 of the House amendment
and paragraph (11) in Section 2 of the Senate bill. In
paragraph (11), Congress finds that 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). Congress finds
that 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.'' Congress finds that 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.
Paragraph (12) in Section 2 of the conference report is
identical to paragraph (12) in Section 2 ofthe House amendment
and paragraph (12) in Section 2 of the Senate bill. In paragraph (12),
Congress finds that 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. Congress finds that, 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.
Paragraph (13) in Section 2 of the conference report is
substantively identical, with technical clarifications, to
paragraph (13) in Section 2 of the House amendment and
paragraph (13) in Section 2 of the Senate bill. In paragraph
(13), Congress finds that 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 demonstrate 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 also finds
that it has been 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. Congress finds that these findings reflect its very
informed judgment 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.
Paragraph (14) in Section 2 of the conference report is
substantively identical, with technical clarifications, to
paragraph (14) in Section 2 of the House amendment and
paragraph (14) in Section 2 of the Senate bill. In paragraph
(14), Congress, pursuant to the substantial and credible
testimony received during extensive legislative hearings during
the 104th, 105th, 107th, and 108th Congresses, lists its
declarations regarding the partial-birth abortion procedure:
Paragraph (14)(A) in Section 2 of the conference report
is identical to paragraph (14)(A) in Section 2 of the House
amendment and paragraph (14)(A) in Section 2 of the Senate
bill. In paragraph (14)(A), Congress 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.
Therefore, Congress concludes that those who express the view
that partial-birth abortion may be a safer method of abortion
in some circumstances have never examined the severe risks of
the procedure to the health of the mother and have not
demonstrated that this procedure is a safe, medically accepted,
standard of care.
Paragraph (14)(B) in Section 2 of the conference report
is identical to paragraph (14)(B) in Section 2 of the House
amendment and paragraph (14)(B) in Section 2 of the Senate
bill. In paragraph (14)(B), Congress declares that there is no
credible medical evidence that partial-birth abortions are safe
or are safer than other abortion procedures. Congress also
declares that 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. Congress further declares that 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. Congress also declares that
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.
Paragraph (14)(C) in Section 2 of the conference report
is identical to paragraph (14)(C) in Section 2 of the House
amendment and paragraph (14)(C) in Section 2 of the Senate
bill. In paragraph (14)(C), Congress declares that 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.''
Paragraph (14)(D) in Section 2 of the conference report
is identical to paragraph (14)(D) in Section 2 of the House
amendment and paragraph (14)(D) in Section 2 of the Senate
bill. In paragraph (14)(D), Congress declares that those who
espouse the view that partial-birth abortion ``may'' be the
most appropriate abortion procedure for some women in ``some''
circumstances, such as the plaintiff in Stenberg v. Carhart and
the experts who testified on his behalf, have failed to
identify such circumstances and base their opinion on
theoretical speculation, not actual evidence that demonstrates
the relative safety of this abortion procedure.
Paragraph (14)(E) in Section 2 of the conference report
is identical to paragraph (14)(E) in Section 2 of the House
amendment and paragraph (14)(E) in Section 2 of the Senate
bill. In paragraph (14)(E), Congress declares that 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 toachieve the desired outcome and, thus, is never
medically necessary to preserve the health of a woman.
Paragraph (14)(F) in Section 2 of the conference report
is identical to paragraph (14)(F) in the House amendment and
paragraph (14)(F) in the Senate bill. In paragraph (14)(F),
Congress declares that a ban on the partial-birth abortion
procedure will advance the health interests of pregnant women
seeking to terminate a pregnancy.
Paragraph (14)(G) in Section 2 of the conference report
is identical to paragraph (14)(G) in the House amendment and
paragraph (14)(G) in the Senate bill. In paragraph (14)(G),
Congress declares that in light of this overwhelming evidence,
Congress and the States have a compelling interest in
prohibiting partial-birth abortions. Congress also declares
that 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.
Paragraph (14)(H) in Section 2 of the conference report
is identical to paragraph (14)(H) in the House amendment and
(14)(H) in the Senate bill. In paragraph (14)(H), Congress
declares that 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, in part, by virtue of the fact
that during a partial-birth abortion, labor is induced and the
birth process has begun. Congress further declares that 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. Congress declares that
this interest becomes compelling as the child emerges from the
maternal body. Congress declares that a child that is
completely born is a full, legal person entitled to
constitutional protections afforded a ``person'' under the
United States Constitution. Congress declares that partial-
birth abortions involve the killing of a child that is in the
process, in fact mere inches away from, becoming a ``person.''
Partial birth gives the fetus an autonomy that is separate and
distinct from that of the mother. Thus, the government has a
heightened interest in protecting the life of the partially-
born child.
Paragraph (14)(I) in Section 2 of the conference report
is identical to paragraph (14)(I) in Section 2 of the House
amendment and paragraph (14)(I) in Section 2 of the Senate
bill. In paragraph (14)(I), Congress declares that the
distinction between a partial-birth abortion and other abortion
methods has been recognized by 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.''
Paragraph (14)(J) in Section 2 of the conference report
is identical to paragraph (14)(J) in Section 2 of the House
amendment and paragraph (14)(J) in Section 2 of the Senate
bill. In paragraph (14)(J), Congress declares that a 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. Congress further declares that
a 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.
Paragraph (14)(K) in Section 2 of the conference report
is identical to paragraph (14)(K) in Section 2 of the House
amendment and paragraph (14)(K) in Section 2 of the Senate
bill. In paragraph (14)(K), Congress declares that 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.
Paragraph (14)(L) in Section 2 of the conference report
is identical to paragraph (14)(L) in Section 2 of the House
amendment and paragraph (14)(L) in Section 2 of the Senate
bill. In paragraph (14)(L), Congress declares that 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.
Paragraph (14)(M) in Section 2 of the conference report
is identical to paragraph (14)(M) in Section 2 of the House
amendment and paragraph (14)(M) in Section 2 of the Senate
bill. In paragraph (14)(M), Congress declares that the vast
majority of babies killed during partial-birth abortions are
alive until the end of the procedure. Congress further declares
that 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. Evidence compiled by Congress demonstrates that
fetuses on whom in utero surgery is performed for medical
reasons feel pain from needles and instruments and are provided
anesthesia. Pain management is an important part of care
provided to infants cared for in neonatal units who are of the
same gestational ages as those subject to partial-birth
abortion. Partial-birth abortion is an extremely painful
procedure for the fetus and, 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.
Paragraph (14)(N) in Section 2 of the conference report
is identical to paragraph(14)(N) in Section 2 of the House
amendment and paragraph (14)(N) in Section 2 of the Senate bill. In
paragraph (14)(N), Congress declares that 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. Congress further declares that as a result it has a
compelling interest in acting--indeed it must act--to prohibit this
inhumane procedure.
Paragraph (14)(O) in Section 2 of the conference report
is identical to paragraph (14)(O) in Section 2 of the House
amendment and paragraph (14)(O) in Section 2 of the Senate
bill. In paragraph (14)(O), Congress declares that for these
reasons, it 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.
Section 3. Prohibition on partial-birth abortions
Subsection (a) in Section 3 of the conference report is
identical to subsection (a) in Section 3 of the House amendment
and subsection (a) in Section 3 of the Senate bill. In
subsection (a) of Section 3 Congress amends title 18 of the
United States Code by inserting a new chapter 74 consisting of
a new 18 U.S.C. 1531:
Subsection (a) of the new section 1531 contained in
Section 3(a) of the conference report is identical to
subsection (a) of the new section 1531 proposed in Section 3(a)
of the House amendment and subsection (a) of the new section
1531 proposed in Section 3(a) of the Senate bill. Subsection
(a) prohibits any physician from, in or affecting interstate or
foreign commerce, knowingly performing a partial-birth abortion
and thereby killing a human fetus. A physician who does so
shall be fined under this title or imprisoned not more than 2
years, or both. This paragraph 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 paragraph takes effect 1 day after the enactment.
Subsection (b)(1) of the new section 1531 contained in
Section 3(a) of the conference report is substantively
identical, with technical clarifications, to subsection (b)(1)
of the new section 1531 proposed in Section 3(a) of the House
amendment and subsection (b)(1) of the new section 1531
proposed in Section 3(a) of the Senate bill. Subsection (b)(1)
states that a partial-birth abortion means an abortion in which
the person performing the abortion deliberately and
intentionally vaginally delivers an intact 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 the person performing the abortion
performs the overt act (such as the removal of the intracranial
contents), other than completion of delivery, that kills the
partially delivered intact living fetus.
Subsection (b)(2) of the new section 1531 contained in
Section 3(a) of the conference report is identical to
subsection (b)(2) of the new section 1531 proposed in Section
3(a) of the House amendment and subsection (b)(2) of the new
section 1531 proposed in Section 3(a) of the Senate bill.
Subsection (b)(2) defines the term ``physician'' as 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.
Subsection (c)(1) of the new section 1531 contained in
Section 3(a) of the conference report is identical to
subsection (c)(1) of the new section 1531 proposed in Section
3(a) of the House amendment and subsection (c)(1) of the new
section 1531 proposed in Section 3(a) of the Senate bill.
Subsection (c)(1) provides for a civil cause of action for 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, unless the pregnancy
resulted from the plaintiff's criminal conduct or the plaintiff
consented to the abortion.
Subsection (c)(2) of the new section 1531 contained in
Section 3(a) of the conference report is identical to
subsection (c)(2) of the new section 1531 proposed in Section
3(a) of the House amendment and paragraph (c)(2) of the new
section 1531 proposed in Section 3(a) of the Senate bill.
Subsection (c)(2), in paragraph (A) provides that such relief
shall include money damages for all injuries, psychological and
physical, occasioned by the violation of this section; and in
paragraph (B) that statutory damages equal to three times the
cost of the partial-birth abortion.
Subsection (d)(1) of the new section 1531 contained in
Section 3(a) of the conference report is identical to
subsection (d)(1) of the new section 1531 proposed in Section
3(a) of the House amendment and subsection (d)(1) of the new
section 1531 proposed in Section 3(a) of the Senate bill.
Subsection (d)(1) allows a defendant accused of an offense
under this section to 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.
Subsection (d)(2) of the new section 1531 contained in
Section 3(a) of the conference report is identical to
subsection (d)(2) of the new section 1531 proposed in Section
3(a) of the House amendment and subsection (d)(2) of the new
section 1531 proposed in Section 3(a) of the Senate bill.
Subsection (d)(2) provides that the findings on that issue are
admissible on that issue at the trial of the defendant. It also
provides that 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.
Subsection (e) of the new section 1531 contained in
Section 3(a) of the conference report is identical to
subsection (e) of the new section 1531 proposed in Section 3(a)
of the House amendment and subsection (e) of the new section
1531 proposed in Section 3(a) of the Senate bill. Subsection
(e) provides that 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.
Subsection (b) in Section 3 of the conference report is
identical to subsection (b) in Section 3 of the House amendment
and subsection (b) in Section 3 of the Senate bill. Subsection
(b) is a clerical amendment to insert the new chapter in the
table of chapters for part I of title 18, after the item
relating to chapter 73.
Section 4 of the Senate bill had no counterpart in the
House amendment, and it is not included in the substitute
agreed to by the managers.
F. James Sensenbrenner, Jr.,
Henry Hyde,
Steve Chabot,
Managers on the Part of the House.
Orrin Hatch,
Rick Santorum,
Mike DeWine,
Managers on the Part of the Senate.