Pub.L. 108-106 Making emergency supplemental appropriations for defense and for the reconstruction of Iraq and Afghanistan for the fiscal year ending September 30, 2004, and for other purposes. <> ...

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[[Page 117 STAT. 1201]]

Public Law 108-105
108th Congress

                                 An Act


 
       To prohibit the procedure commonly known as partial-birth 
               abortion. <<NOTE: Nov. 5, 2003 -  [S. 3]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Partial-Birth 
Abortion Ban Act of 2003.>> 

SECTION 1. <<NOTE: 18 USC 1531 note.>> SHORT TITLE.

    This Act may be cited as the ``Partial-Birth Abortion Ban Act of 
2003''.

SEC. 2. <<NOTE: 18 USC 1531 note.>> 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.

[[Page 117 STAT. 1202]]

            (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

[[Page 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 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,

[[Page 117 STAT. 1204]]

        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 
                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

[[Page 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 

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