PUBLIC LAW 108–105—NOV. 5, 2003 117 STAT. 1201

Public Law 108–105

108th Congress

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, partialbirth 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.

18 USC 1531

note.

18 USC 1531

note.

Partial-Birth

Abortion Ban Act

of 2003.

Nov. 5, 2003

[S. 3]

117 STAT. 1202 PUBLIC LAW 108–105—NOV. 5, 2003

(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

PUBLIC LAW 108–105—NOV. 5, 2003 117 STAT. 1203

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 partialbirth 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,

117 STAT. 1204 PUBLIC LAW 108–105—NOV. 5, 2003

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 partialbirth 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 partialbirth abortion procedure has testified that he has never

encountered a situation where a partial-birth abortion was

PUBLIC LAW 108–105—NOV. 5, 2003 117 STAT. 1205

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.

117 STAT. 1206 PUBLIC LAW 108–105—NOV. 5, 2003

(L) The gruesome and inhumane nature of the partialbirth 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 partialbirth 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 partialbirth 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.

‘‘§ 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

Effective date.

PUBLIC LAW 108–105—NOV. 5, 2003 117 STAT. 1207

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.’’.

117 STAT. 1208 PUBLIC LAW 108–105—NOV. 5, 2003

LEGISLATIVE HISTORY—S. 3 (H.R. 760):

HOUSE REPORTS: Nos. 108–58 accompanying H.R. 760 (Comm. on the Judiciary)

and 108–288 (Comm. of Conference).

CONGRESSIONAL RECORD, Vol. 149 (2003):

Mar. 10–13, considered and passed Senate.

June 4, considerd and passed House, amended, in lieu of H.R. 760.

Oct. 2, House agreed to conference report.

Oct. 21, Senate agreed to conference report.

WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 39 (2003):

Nov. 5, Presidential remarks.

Æ

(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’’.

Approved November 5, 2003.