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.
(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
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
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
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-