II
Calendar No. 521
107TH CONGRESS
2D SESSION
H. R. 4965
IN THE SENATE OF THE UNITED STATES
JULY 25, 2002
Received and read the first time
JULY 26, 2002
Read the second time and placed on the calendar
AN ACT
To prohibit the procedure commonly known as partial-birth
abortion.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
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SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Partial-Birth Abortion
Ban Act of 2002’’.
SEC. 2. FINDINGS.
The Congress finds and declares the following:
(1) A moral, medical, and ethical consensus ex-
ists that the practice of performing a partial-birth
abortion—an abortion in which a physician delivers
an unborn child’s body until only the head remains
inside the womb, punctures the back of the child’s
skull with a sharp instrument, and sucks the child’s
brains out before completing delivery of the dead in-
fant—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, particu-
larly 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 pro-
cedure during the 104th, 105th, and 106th Con-
gresses.
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(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 Nebras-
ka’s ban on partial-birth abortion procedures, con-
cluding that it placed an ‘‘undue burden’’ on women
seeking abortions because it failed to include an ex-
ception for partial-birth abortions deemed necessary
to preserve the ‘‘health’’ of the mother.
(4) In reaching this conclusion, the Court de-
ferred to the Federal district court’s factual findings
that the partial-birth abortion procedure was statis-
tically and medically as safe as, and in many cir-
cumstances safer than, alternative abortion proce-
dures.
(5) However, the great weight of evidence pre-
sented at the Stenberg trial and other trials chal-
lenging partial-birth abortion bans, as well as at ex-
tensive Congressional hearings, demonstrates that a
partial-birth abortion is never necessary to preserve
the health of a woman, poses significant health risks
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to a woman upon whom the procedure is performed,
and is outside of 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 re-
fused 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 en-
tire evidence is left with the definite and firm convic-
tion 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 dis-
trict 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 Su-
preme Court was required to accept the very ques-
tionable findings issued by the district court judge—
the effect of which was to render null and void the
reasoned factual findings and policy determinations
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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 pur-
sue 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 ‘‘gain-
ing 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
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is not for us to review the congressional resolution
of these factors. It is enough that we be able to per-
ceive 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’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 dis-
criminatory in purpose’’. City of Rome, Georgia v.
U.S., 472 F. Supp. 221 (D. D. Col. 1979) aff’d City
of Rome, Georgia v. U.S., 446 U.S. 156 (1980).
(11) The Court continued its practice of defer-
ring to congressional factual findings in reviewing
the constitutionality of the must-carry provisions of
the Cable Television Consumer Protection and Com-
petition Act of 1992. See Turner Broadcasting Sys-
tem, Inc. v. Federal Communications Commission,
512 U.S. 622 (1994) (Turner I) and Turner Broad-
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casting 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 rec-
ognized that as an institution, ‘‘Congress is far bet-
ter equipped than the judiciary to ‘amass and evalu-
ate 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 li-
cense 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 Con-
gress’ findings, stating the Court’s ‘‘sole obligation
is ‘to assure that, in formulating its judgments, Con-
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gress has drawn reasonable inferences based on sub-
stantial evidence.’ ’’ 520 U.S. at 195. Citing its rul-
ing in Turner I, the Court reiterated that ‘‘[w]e owe
Congress’ findings deference in part because the in-
stitution ‘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 addi-
tional measure of deference out of respect for its au-
thority 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 indi-
cate 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 and 105th
Congresses and passed a ban on partial-birth abor-
tion 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
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the standard of medical care, and should, therefore,
be banned.
(14) Pursuant to the testimony received during
extensive legislative hearings during the 104th and
105th 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 suf-
fering from cervical incompetence, a result of
cervical dilation making it difficult or impos-
sible for a woman to successfully carry a subse-
quent pregnancy to term; an increased risk of
uterine rupture, abruption, amniotic fluid embo-
lus, and trauma to the uterus as a result of
converting the child to a footling breech posi-
tion, 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 re-
sult in severe bleeding, brings with it the threat
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of shock, and could ultimately result in mater-
nal 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 con-
ducted nor have any comparative studies been
conducted to demonstrate its safety and efficacy
compared to other abortion methods. Further-
more, there have been no articles published in
peer-reviewed journals that establish that par-
tial-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 pro-
vide 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
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unknown,’’ and that ‘‘there is no consensus
among obstetricians about its use’’. The asso-
ciation 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 nec-
essary to preserve the health of a woman.
(E) The physician credited with developing
the partial-birth abortion procedure has testi-
fied 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 in-
terests of pregnant women seeking to terminate
a pregnancy.
(G) In light of this overwhelming evidence,
Congress and the States have a compelling in-
terest in prohibiting partial-birth abortions. In
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addition to promoting maternal health, such a
prohibition will draw a bright line that clearly
distinguishes abortion and infanticide, that pre-
serves 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 deliv-
ery process arises by virtue of the fact that dur-
ing a partial-birth abortion, labor is induced
and the birth process has begun. This distinc-
tion was recognized in Roe when the Court
noted, without comment, that the Texas partu-
rition statute, which prohibited one from killing
a child ‘‘in a state of being born and before ac-
tual 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 constitu-
tional 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, be-
coming a ‘‘person’’. Thus, the government has
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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’’. Ac-
cording to this medical association, the ‘‘ ‘par-
tial 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 ter-
minology 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 tech-
niques to end the life of the partially-born child.
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(K) Thus, by aborting a child in the man-
ner 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 dis-
turbing similarity to the killing of a newborn in-
fant promotes a complete disregard for infant
human life that can only be countered by a pro-
hibition of the procedure.
(M) The vast majority of babies killed dur-
ing partial-birth abortions are alive until the
end of the procedure. It is a medical fact, how-
ever, that unborn infants at this stage can feel
pain when subjected to painful stimuli and that
their perception of this pain is even more in-
tense 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 associ-
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ated 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 in-
nocent human life, making it increasingly dif-
ficult 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 indi-
cated 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 kill-
ing 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:
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‘‘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 enact-
ment.
‘‘(b) As used in this section—
‘‘(1) the term ‘partial-birth abortion’ means an
abortion in which—
‘‘(A) the person performing the abortion
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
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the purpose of performing an overt act that the
person knows will kill the partially delivered liv-
ing 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 nev-
ertheless 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 con-
duct or the plaintiff consented to the abortion.
‘‘(2) Such relief shall include—
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‘‘(A) money damages for all injuries, psycho-
logical 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, in-
cluding 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
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inserting after the item relating to chapter 73 the fol-
lowing new item:
‘‘74. Partial-birth abortions ........................................................... 1531’’.
Passed the House of Representatives July 24, 2002.
Attest:
JEFF TRANDAHL,
Clerk.
Calendar No. 521
107TH CONGRESS
2D SESSION
H. R. 4965
AN ACT
To prohibit the procedure commonly known as
partial-birth abortion
JULY 26, 2002
Read the second time and placed on the calendar