I 

108TH CONGRESS 

1ST SESSION H. R. 760

To prohibit the procedure commonly known as partial-birth abortion. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 13, 2003

Mr. CHABOT (for himself, Mr. SENSENBRENNER, Mr. KING of Iowa, Mr. KENNEDY of Minnesota, Mr. BACHUS, Mr. BRADY of Texas, Mr. CANNON, 

Mr. CANTOR, Mr. CUNNINGHAM, Mr. ENGLISH, Mr. GREEN of Wisconsin, 

Ms. HART, Mr. HAYES, Mr. HEFLEY, Mr. HOEKSTRA, Mr. HUNTER, Mr. 

JENKINS, Mr. KINGSTON, Mr. MILLER of Florida, Mrs. MYRICK, Mr. 

NEY, Mr. PENCE, Mr. PETERSON of Pennsylvania, Mr. PITTS, Mr. 

TOOMEY, Mr. WELDON of Pennsylvania, Mr. PICKERING, Mr. OXLEY, 

Mr. CRANE, Mr. DEMINT, Mr. SCHROCK, Mr. TANCREDO, Mr. 

ADERHOLT, Mr. TIAHRT, Mr. NORWOOD, Mr. SHADEGG, Mr. BURTON of 

Indiana, Mr. DOOLITTLE, Mr. EHLERS, Mr. ROGERS of Michigan, Mr. 

BAKER, Mr. MOLLOHAN, Mr. BALLENGER, Mr. MCCRERY, Mr. RENZI, 

Mr. FLETCHER, Mr. TIBERI, Mr. AKIN, Mr. COLLINS, Mr. JOHN, Mr. 

RYUN of Kansas, Mr. HOSTETTLER, Mr. VITTER, Mr. MCCOTTER, Mr. 

PORTMAN, Mr. SESSIONS, Mr. SOUDER, Mr. SHUSTER, Mr. WOLF, Mr. 

POMBO, Mr. DELAY, Mr. CAMP, Mr. BARTON of Texas, Mr. COSTELLO, 

Mr. BISHOP of Utah, Mr. TAYLOR of Mississippi, Mr. EVERETT, Mr. 

BLUNT, Mr. TERRY, Mrs. CUBIN, Mr. OBERSTAR, Mr. GRAVES, Mr. 

WHITFIELD, Mr. ISSA, Mr. FEENEY, Mr. STENHOLM, Mr. GOSS, Mr. 

SMITH of New Jersey, Mr. HYDE, Mr. WILSON of South Carolina, Mr. 

GUTKNECHT, Mr. PETRI, Mr. LINDER, Mr. COBLE, Mr. HAYWORTH, Mr. 

FRANKS of Arizona, Mr. BURGESS, Mr. STEARNS, Mr. BEAUPREZ, Mr. 

HULSHOF, Mr. ROGERS of Alabama, Mr. BURNS, Mr. PLATTS, Mr. 

BROWN of South Carolina, Mr. REHBERG, Mrs. EMERSON, Mr. KLINE, 

Mr. LAHOOD, Mr. MORAN of Kansas, Mr. TOM DAVIS of Virginia, Mr. 

BOOZMAN, Mr. OSBORNE, Mr. LEWIS of Kentucky, Mr. MURPHY, Mr. 

SIMPSON, Mr. RAHALL, Mr. TAYLOR of North Carolina, Mrs. JO ANN

DAVIS of Virginia, Mr. WAMP, Mr. GOODE, Mr. CHOCOLA, Mrs. 

NORTHUP, Mr. FORBES, Mr. SULLIVAN, Mr. GOODLATTE, Mr. PUTNAM, 

Mrs. BLACKBURN, Mr. TURNER of Ohio, Mr. PEARCE, Mrs. MILLER of 

Michigan, Ms. GRANGER, Mr. GINGREY, Mr. MANZULLO, Mr. COLE, Mr. 

FERGUSON, Mr. CALVERT, Mr. SMITH of Texas, Mr. GARRETT of New 

Jersey, Mr. STUPAK, Mr. BURR, Mr. RYAN of Wisconsin, Mr. JONES of 

North Carolina, Mrs. MUSGRAVE, Mr. CULBERSON, Mr. LATOURETTE, 

Mr. BOEHNER, Mr. BARRETT of South Carolina, and Mr. HENSARLING) 
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introduced the following bill; which was referred to the Committee on the 

Judiciary 

A BILL

To prohibit the procedure commonly known as partial-birth 

abortion.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Partial-Birth Abortion 

5 Ban Act of 2003’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds and declares the following: 

8 (1) A moral, medical, and ethical consensus ex9 ists that the practice of performing a partial-birth 

10 abortion—an abortion in which a physician delivers 

11 an unborn child’s body until only the head remains 

12 inside the womb, punctures the back of the child’s 

13 skull with a sharp instrument, and sucks the child’s 

14 brains out before completing delivery of the dead in15 fant—is a gruesome and inhumane procedure that is 

16 never medically necessary and should be prohibited. 

17 (2) Rather than being an abortion procedure 

18 that is embraced by the medical community, particu19 larly among physicians who routinely perform other 
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1 abortion procedures, partial-birth abortion remains a 

2 disfavored procedure that is not only unnecessary to 

3 preserve the health of the mother, but in fact poses 

4 serious risks to the long-term health of women and 

5 in some circumstances, their lives. As a result, at 

6 least 27 States banned the procedure as did the 

7 United States Congress which voted to ban the pro8 cedure during the 104th, 105th, and 106th Con9 gresses. 

10 (3) In Stenberg v. Carhart, 530 U.S. 914, 932 

11 (2000), the United States Supreme Court opined 

12 ‘‘that significant medical authority supports the 

13 proposition that in some circumstances, [partial 

14 birth abortion] would be the safest procedure’’ for 

15 pregnant women who wish to undergo an abortion. 

16 Thus, the Court struck down the State of Nebras17 ka’s ban on partial-birth abortion procedures, con18 cluding that it placed an ‘‘undue burden’’ on women 

19 seeking abortions because it failed to include an ex20 ception for partial-birth abortions deemed necessary 

21 to preserve the ‘‘health’’ of the mother. 

22 (4) In reaching this conclusion, the Court de23 ferred to the Federal district court’s factual findings 

24 that the partial-birth abortion procedure was statis25 tically and medically as safe as, and in many cir-
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1 cumstances safer than, alternative abortion proce2 dures. 

3 (5) However, the great weight of evidence pre4 sented at the Stenberg trial and other trials chal5 lenging partial-birth abortion bans, as well as at ex6 tensive Congressional hearings, demonstrates that a 

7 partial-birth abortion is never necessary to preserve 

8 the health of a woman, poses significant health risks 

9 to a woman upon whom the procedure is performed, 

10 and is outside of the standard of medical care. 

11 (6) Despite the dearth of evidence in the 

12 Stenberg trial court record supporting the district 

13 court’s findings, the United States Court of Appeals 

14 for the Eighth Circuit and the Supreme Court re15 fused to set aside the district court’s factual findings 

16 because, under the applicable standard of appellate 

17 review, they were not ‘‘clearly erroneous’’. A finding 

18 of fact is clearly erroneous ‘‘when although there is 

19 evidence to support it, the reviewing court on the en20 tire evidence is left with the definite and firm convic21 tion that a mistake has been committed’’. Anderson 

22 v. City of Bessemer City, North Carolina, 470 U.S. 

23 564, 573 (1985). Under this standard, ‘‘if the dis24 trict court’s account of the evidence is plausible in 

25 light of the record viewed in its entirety, the court 
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1 of appeals may not reverse it even though convinced 

2 that had it been sitting as the trier of fact, it would 

3 have weighed the evidence differently’’. Id. at 574. 

4 (7) Thus, in Stenberg, the United States Su5 preme Court was required to accept the very ques6 tionable findings issued by the district court judge—

7 the effect of which was to render null and void the 

8 reasoned factual findings and policy determinations 

9 of the United States Congress and at least 27 State 

10 legislatures. 

11 (8) However, under well-settled Supreme Court 

12 jurisprudence, the United States Congress is not

13 bound to accept the same factual findings that the 

14 Supreme Court was bound to accept in Stenberg 

15 under the ‘‘clearly erroneous’’ standard. Rather, the 

16 United States Congress is entitled to reach its own 

17 factual findings—findings that the Supreme Court 

18 accords great deference—and to enact legislation 

19 based upon these findings so long as it seeks to pur20 sue a legitimate interest that is within the scope of 

21 the Constitution, and draws reasonable inferences 

22 based upon substantial evidence. 

23 (9) In Katzenbach v. Morgan, 384 U.S. 641 

24 (1966), the Supreme Court articulated its highly 

25 deferential review of Congressional factual findings 
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1 when it addressed the constitutionality of section 

2 4(e) of the Voting Rights Act of 1965. Regarding 

3 Congress’ factual determination that section 4(e) 

4 would assist the Puerto Rican community in ‘‘gain5 ing nondiscriminatory treatment in public services,’’ 

6 the Court stated that ‘‘[i]t was for Congress, as the 

7 branch that made this judgment, to assess and 

8 weigh the various conflicting considerations . . . . It 

9 is not for us to review the congressional resolution 

10 of these factors. It is enough that we be able to per11 ceive a basis upon which the Congress might resolve 

12 the conflict as it did. There plainly was such a basis

13 to support section 4(e) in the application in question 

14 in this case.’’. Id. at 653. 

15 (10) Katzenbach’s highly deferential review of 

16 Congress’s factual conclusions was relied upon by 

17 the United States District Court for the District of 

18 Columbia when it upheld the ‘‘bail-out’’ provisions of 

19 the Voting Rights Act of 1965, (42 U.S.C. 1973c), 

20 stating that ‘‘congressional fact finding, to which we 

21 are inclined to pay great deference, strengthens the 

22 inference that, in those jurisdictions covered by the 

23 Act, state actions discriminatory in effect are dis24 criminatory in purpose’’. City of Rome, Georgia v. 
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1 U.S., 472 F. Supp. 221 (D. D. Col. 1979) aff’d City 

2 of Rome, Georgia v. U.S., 446 U.S. 156 (1980). 

3 (11) The Court continued its practice of defer4 ring to congressional factual findings in reviewing 

5 the constitutionality of the must-carry provisions of 

6 the Cable Television Consumer Protection and Com7 petition Act of 1992. See Turner Broadcasting Sys8 tem, Inc. v. Federal Communications Commission, 

9 512 U.S. 622 (1994) (Turner I) and Turner Broad10 casting System, Inc. v. Federal Communications 

11 Commission, 520 U.S. 180 (1997) (Turner II). At 

12 issue in the Turner cases was Congress’ legislative 

13 finding that, absent mandatory carriage rules, the 

14 continued viability of local broadcast television would 

15 be ‘‘seriously jeopardized’’. The Turner I Court rec16 ognized that as an institution, ‘‘Congress is far bet17 ter equipped than the judiciary to ‘amass and evalu18 ate the vast amounts of data’ bearing upon an issue 

19 as complex and dynamic as that presented here’’. 

20 512 U.S. at 665–66. Although the Court recognized 

21 that ‘‘the deference afforded to legislative findings 

22 does ‘not foreclose our independent judgment of the 

23 facts bearing on an issue of constitutional law,’ ’’ its 

24 ‘‘obligation to exercise independent judgment when 

25 First Amendment rights are implicated is not a li-
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1 cense to reweigh the evidence de novo, or to replace 

2 Congress’ factual predictions with our own. Rather, 

3 it is to assure that, in formulating its judgments, 

4 Congress has drawn reasonable inferences based on 

5 substantial evidence.’’ Id. at 666. 

6 (12) Three years later in Turner II, the Court 

7 upheld the ‘‘must-carry’’ provisions based upon Con8 gress’ findings, stating the Court’s ‘‘sole obligation 

9 is ‘to assure that, in formulating its judgments, Con10 gress has drawn reasonable inferences based on sub11 stantial evidence.’ ’’ 520 U.S. at 195. Citing its rul12 ing in Turner I, the Court reiterated that ‘‘[w]e owe 

13 Congress’ findings deference in part because the in14 stitution ‘is far better equipped than the judiciary to 

15 ‘‘amass and evaluate the vast amounts of data’’ 

16 bearing upon’ legislative questions,’’ id. at 195, and 

17 added that it ‘‘owe[d] Congress’ findings an addi18 tional measure of deference out of respect for its au19 thority to exercise the legislative power.’’ Id. at 196. 

20 (13) There exists substantial record evidence 

21 upon which Congress has reached its conclusion that 

22 a ban on partial-birth abortion is not required to 

23 contain a ‘‘health’’ exception, because the facts indi24 cate that a partial-birth abortion is never necessary 

25 to preserve the health of a woman, poses serious 
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1 risks to a woman’s health, and lies outside the 

2 standard of medical care. Congress was informed by 

3 extensive hearings held during the 104th, 105th, 

4 and 107th Congresses and passed a ban on partial5 birth abortion in the 104th, 105th, and 106th Con6 gresses. These findings reflect the very informed 

7 judgment of the Congress that a partial-birth abor8 tion is never necessary to preserve the health of a 

9 woman, poses serious risks to a woman’s health, and 

10 lies outside the standard of medical care, and 

11 should, therefore, be banned. 

12 (14) Pursuant to the testimony received during 

13 extensive legislative hearings during the 104th, 

14 105th, and 107th Congresses, Congress finds and 

15 declares that: 

16 (A) Partial-birth abortion poses serious 

17 risks to the health of a woman undergoing the 

18 procedure. Those risks include, among other 

19 things: an increase in a woman’s risk of suf20 fering from cervical incompetence, a result of 

21 cervical dilation making it difficult or impos22 sible for a woman to successfully carry a subse23 quent pregnancy to term; an increased risk of 

24 uterine rupture, abruption, amniotic fluid embo25 lus, and trauma to the uterus as a result of 
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1 converting the child to a footling breech posi2 tion, a procedure which, according to a leading 

3 obstetrics textbook, ‘‘there are very few, if any, 

4 indications for . . . other than for delivery of 

5 a second twin’’; and a risk of lacerations and 

6 secondary hemorrhaging due to the doctor 

7 blindly forcing a sharp instrument into the base 

8 of the unborn child’s skull while he or she is 

9 lodged in the birth canal, an act which could re10 sult in severe bleeding, brings with it the threat 

11 of shock, and could ultimately result in mater12 nal death.

13 (B) There is no credible medical evidence 

14 that partial-birth abortions are safe or are safer 

15 than other abortion procedures. No controlled 

16 studies of partial-birth abortions have been con17 ducted nor have any comparative studies been 

18 conducted to demonstrate its safety and efficacy 

19 compared to other abortion methods. Further20 more, there have been no articles published in 

21 peer-reviewed journals that establish that par22 tial-birth abortions are superior in any way to 

23 established abortion procedures. Indeed, unlike 

24 other more commonly used abortion procedures, 

25 there are currently no medical schools that pro-
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1 vide instruction on abortions that include the 

2 instruction in partial-birth abortions in their 

3 curriculum. 

4 (C) A prominent medical association has 

5 concluded that partial-birth abortion is ‘‘not an 

6 accepted medical practice,’’ that it has ‘‘never 

7 been subject to even a minimal amount of the 

8 normal medical practice development,’’ that 

9 ‘‘the relative advantages and disadvantages of 

10 the procedure in specific circumstances remain 

11 unknown,’’ and that ‘‘there is no consensus 

12 among obstetricians about its use’’. The asso13 ciation has further noted that partial-birth 

14 abortion is broadly disfavored by both medical 

15 experts and the public, is ‘‘ethically wrong,’’ 

16 and ‘‘is never the only appropriate procedure’’. 

17 (D) Neither the plaintiff in Stenberg v. 

18 Carhart, nor the experts who testified on his 

19 behalf, have identified a single circumstance 

20 during which a partial-birth abortion was nec21 essary to preserve the health of a woman. 

22 (E) The physician credited with developing 

23 the partial-birth abortion procedure has testi24 fied that he has never encountered a situation 

25 where a partial-birth abortion was medically 
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1 necessary to achieve the desired outcome and, 

2 thus, is never medically necessary to preserve 

3 the health of a woman. 

4 (F) A ban on the partial-birth abortion 

5 procedure will therefore advance the health in6 terests of pregnant women seeking to terminate 

7 a pregnancy. 

8 (G) In light of this overwhelming evidence, 

9 Congress and the States have a compelling in10 terest in prohibiting partial-birth abortions. In 

11 addition to promoting maternal health, such a 

12 prohibition will draw a bright line that clearly 

13 distinguishes abortion and infanticide, that pre14 serves the integrity of the medical profession, 

15 and promotes respect for human life. 

16 (H) Based upon Roe v. Wade, 410 U.S. 

17 113 (1973) and Planned Parenthood v. Casey, 

18 505 U.S. 833 (1992), a governmental interest 

19 in protecting the life of a child during the deliv20 ery process arises by virtue of the fact that dur21 ing a partial-birth abortion, labor is induced 

22 and the birth process has begun. This distinc23 tion was recognized in Roe when the Court 

24 noted, without comment, that the Texas partu25 rition statute, which prohibited one from killing 
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1 a child ‘‘in a state of being born and before ac2 tual birth,’’ was not under attack. This interest 

3 becomes compelling as the child emerges from 

4 the maternal body. A child that is completely 

5 born is a full, legal person entitled to constitu6 tional protections afforded a ‘‘person’’ under 

7 the United States Constitution. Partial-birth 

8 abortions involve the killing of a child that is in 

9 the process, in fact mere inches away from, be10 coming a ‘‘person’’. Thus, the government has 

11 a heightened interest in protecting the life of 

12 the partially-born child. 

13 (I) This, too, has not gone unnoticed in 

14 the medical community, where a prominent 

15 medical association has recognized that partial16 birth abortions are ‘‘ethically different from 

17 other destructive abortion techniques because 

18 the fetus, normally twenty weeks or longer in 

19 gestation, is killed outside of the womb’’. Ac20 cording to this medical association, the ‘‘ ‘par21 tial birth’ gives the fetus an autonomy which 

22 separates it from the right of the woman to 

23 choose treatments for her own body’’. 

24 (J) Partial-birth abortion also confuses the 

25 medical, legal, and ethical duties of physicians 
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1 to preserve and promote life, as the physician 

2 acts directly against the physical life of a child, 

3 whom he or she had just delivered, all but the 

4 head, out of the womb, in order to end that life. 

5 Partial-birth abortion thus appropriates the ter6 minology and techniques used by obstetricians 

7 in the delivery of living children—obstetricians 

8 who preserve and protect the life of the mother 

9 and the child—and instead uses those tech10 niques to end the life of the partially-born child. 

11 (K) Thus, by aborting a child in the man12 ner that purposefully seeks to kill the child 

13 after he or she has begun the process of birth, 

14 partial-birth abortion undermines the public’s 

15 perception of the appropriate role of a physician 

16 during the delivery process, and perverts a 

17 process during which life is brought into the 

18 world, in order to destroy a partially-born child. 

19 (L) The gruesome and inhumane nature of 

20 the partial-birth abortion procedure and its dis21 turbing similarity to the killing of a newborn in22 fant promotes a complete disregard for infant 

23 human life that can only be countered by a pro24 hibition of the procedure. 
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1 (M) The vast majority of babies killed dur2 ing partial-birth abortions are alive until the 

3 end of the procedure. It is a medical fact, how4 ever, that unborn infants at this stage can feel 

5 pain when subjected to painful stimuli and that 

6 their perception of this pain is even more in7 tense than that of newborn infants and older 

8 children when subjected to the same stimuli. 

9 Thus, during a partial-birth abortion procedure, 

10 the child will fully experience the pain associ11 ated with piercing his or her skull and sucking 

12 out his or her brain.

13 (N) Implicitly approving such a brutal and 

14 inhumane procedure by choosing not to prohibit 

15 it will further coarsen society to the humanity 

16 of not only newborns, but all vulnerable and in17 nocent human life, making it increasingly dif18 ficult to protect such life. Thus, Congress has 

19 a compelling interest in acting—indeed it must 

20 act—to prohibit this inhumane procedure. 

21 (O) For these reasons, Congress finds that 

22 partial-birth abortion is never medically indi23 cated to preserve the health of the mother; is in 

24 fact unrecognized as a valid abortion procedure 

25 by the mainstream medical community; poses 
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1 additional health risks to the mother; blurs the 

2 line between abortion and infanticide in the kill3 ing of a partially-born child just inches from 

4 birth; and confuses the role of the physician in 

5 childbirth and should, therefore, be banned. 

6 SEC. 3. PROHIBITION ON PARTIAL-BIRTH ABORTIONS. 

7 (a) IN GENERAL.—Title 18, United States Code, is 

8 amended by inserting after chapter 73 the following: 

9 ‘‘CHAPTER 74—PARTIAL-BIRTH 

10 ABORTIONS

‘‘Sec. 

‘‘1531. Partial-birth abortions prohibited.

11 ‘‘§ 1531. Partial-birth abortions prohibited 

12 ‘‘(a) Any physician who, in or affecting interstate or 

13 foreign commerce, knowingly performs a partial-birth 

14 abortion and thereby kills a human fetus shall be fined 

15 under this title or imprisoned not more than 2 years, or 

16 both. This subsection does not apply to a partial-birth 

17 abortion that is necessary to save the life of a mother 

18 whose life is endangered by a physical disorder, physical 

19 illness, or physical injury, including a life-endangering 

20 physical condition caused by or arising from the pregnancy 

21 itself. This subsection takes effect 1 day after the enact22 ment. 

23 ‘‘(b) As used in this section—
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1 ‘‘(1) the term ‘partial-birth abortion’ means an 

2 abortion in which—

3 ‘‘(A) the person performing the abortion 

4 deliberately and intentionally vaginally delivers 

5 a living fetus until, in the case of a head-first 

6 presentation, the entire fetal head is outside the 

7 body of the mother, or, in the case of breech 

8 presentation, any part of the fetal trunk past 

9 the navel is outside the body of the mother for 

10 the purpose of performing an overt act that the 

11 person knows will kill the partially delivered liv12 ing fetus; and 

13 ‘‘(B) performs the overt act, other than 

14 completion of delivery, that kills the partially 

15 delivered living fetus; and 

16 ‘‘(2) the term ‘physician’ means a doctor of medicine 

17 or osteopathy legally authorized to practice medicine and 

18 surgery by the State in which the doctor performs such 

19 activity, or any other individual legally authorized by the 

20 State to perform abortions: Provided, however, That any 

21 individual who is not a physician or not otherwise legally 

22 authorized by the State to perform abortions, but who nev23 ertheless directly performs a partial-birth abortion, shall 

24 be subject to the provisions of this section. 
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1 ‘‘(c)(1) The father, if married to the mother at the 

2 time she receives a partial-birth abortion procedure, and 

3 if the mother has not attained the age of 18 years at the 

4 time of the abortion, the maternal grandparents of the 

5 fetus, may in a civil action obtain appropriate relief, unless 

6 the pregnancy resulted from the plaintiff’s criminal con7 duct or the plaintiff consented to the abortion. 

8 ‘‘(2) Such relief shall include—

9 ‘‘(A) money damages for all injuries, psycho10 logical and physical, occasioned by the violation of 

11 this section; and 

12 ‘‘(B) statutory damages equal to three times 

13 the cost of the partial-birth abortion. 

14 ‘‘(d)(1) A defendant accused of an offense under this 

15 section may seek a hearing before the State Medical Board 

16 on whether the physician’s conduct was necessary to save 

17 the life of the mother whose life was endangered by a 

18 physical disorder, physical illness, or physical injury, in19 cluding a life-endangering physical condition caused by or 

20 arising from the pregnancy itself. 

21 ‘‘(2) The findings on that issue are admissible on that 

22 issue at the trial of the defendant. Upon a motion of the 

23 defendant, the court shall delay the beginning of the trial 

24 for not more than 30 days to permit such a hearing to 

25 take place. 
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1 ‘‘(e) A woman upon whom a partial-birth abortion is 

2 performed may not be prosecuted under this section, for 

3 a conspiracy to violate this section, or for an offense under 

4 section 2, 3, or 4 of this title based on a violation of this 

5 section.’’. 

6 (b) CLERICAL AMENDMENT.—The table of chapters 

7 for part I of title 18, United States Code, is amended by 

8 inserting after the item relating to chapter 73 the fol9 lowing new item:

‘‘74. Partial-birth abortions ........................................................... 1531’’.

Æ