November 7, 1995
ELIZABETH FARNSWORTH: The legislation being debated in the Senate would impose criminal penalties on doctors who perform a certain type of a late-term abortion. Last week's House vote in favor of a similar bill was the first time a chamber of Congress voted to criminalize some form of abortion. Now, two different perspectives on the proposed ban. Republican Senator Robert Smith of New Hampshire is the chief sponsor of the legislation. Democratic Senator Barbara Boxer of California is leading the opposition to the bill. Thank you both for being with us. Sen. Smith, briefly, what specifically would this legislation ban?
SEN. ROBERT SMITH: (Capitol Hill) Well, it's going to ban the process or the procedure known as partial birth abortions, which involves the child coming down through the birth canal, with the exception of the head, and at that time, with roughly 75 to 80 percent of the child born, in the hands of the tending abortionist or doctor, he then, the doctor then uses a, a pair of scissors to open up the skull, in which he then inserts a catheter to suck the brains, literally, from the child's head, to crush, decompress the skull, and so that the child can be taken, can be taken completely out. So this is a brutal act that I don't think anyone, pro-choice or pro-life, should justify. And this legislation bans it, period.
ELIZABETH FARNSWORTH: And under the legislation, the penalty would be--
SEN. SMITH: Well, there's no penalty on the woman whatsoever, absolutely no penalty.
ELIZABETH FARNSWORTH: The doctor--the penalty is on the doctor.
SEN. SMITH: The doctor has, has the affirmative defense position. That means there is an opportunity if the mother's life is threatened that he, he may use--he or she may use that procedure. But that is not likely to happen, because most medical experts say that there is no need to perform this procedure under almost any circumstance.
ELIZABETH FARNSWORTH: But the penalty would be two years in jail, no more than two years in jail, and/or a fine, right?
SEN. SMITH: That's correct.
ELIZABETH FARNSWORTH: Okay. Sen. Boxer, what's wrong with this?
SEN. BARBARA BOXER: (Capitol Hill) Well, first of all, there's no such thing as partial birth abortion. We're talking about a very tragic situation where a woman is told very late in a pregnancy that she faces death or severe consequences to her health. And we have women who are here, ready to talk to Senators, in the halls, begging them not to do this, because unlike my colleague says, this sometimes is the only procedure that can, in fact, be used to spare the woman's life. And we have to remember as reasonable people we wish that there was not a need for abortion ever, and certainly we pray that no one is faced with this agonizing choice, but it does happen, and this would be the first time in history that we can tell that the United States Congress would outlaw a specific medical procedure that is meant and used to save a woman's life. And before we do that, many of us are recommending--and I hope it will pass and it is bipartisan--that we send this bill to the Judiciary Committee. We have never had a hearing on it. We think it is very important. We are not doctors. We do not know the ins and outs of this. Let's hear from the doctors. Let's hear from the women. Let's hear from both sides. Then let's take this bill up.
ELIZABETH FARNSWORTH: Sen. Boxer, would you support this bill if there was language in it that explicitly made an abortion procedure like this legal to protect the life or the health of the mother?
SEN. BOXER: Oh, life and health of the mother exception makes this far more acceptable. The House did not do that, and although Sen. Smith says, yes, a doctor can go to a court and use as a defense that he did it to save the mother's life, it still is a criminal act on its face, and he would have to convince a jury. Now, that is not what we should be doing in the United States Congress. Where will this end? What new procedures will now come up if Congress decides it doesn't like a certain procedure to save an old person's life? Are we going to start going down that path? I think it is a slippery slope.
ELIZABETH FARNSWORTH: Sen. Smith, what about that? What's wrong with language in the legislation that would explicitly say this, this abortion procedure would be possible and would be legal to save a woman's- -a mother's life, or her--protect her health?
SEN. SMITH: Well, first of all, through the affirmative defense procedure, which is very carefully outlined in the bill, the doctor has that right, obviously.
ELIZABETH FARNSWORTH: Excuse me for interrupting. What about the criticism that he's already in the dock, so to speak, at the moment that he can use that, he's already in court?
SEN. SMITH: Well, that is not exactly accurate. The point, the point that is not being made here by Sen. Boxer is that some 80 percent by the abortion doctor's own testimony, 80 percent of these cases have nothing to do--they have nothing to do with the life of the mother, they have nothing to do with anything other than elective, the elective option that a woman chooses. That's what's not being said here.
ELIZABETH FARNSWORTH: I'm going to come back to that.
SEN. SMITH: That's the issue here.
ELIZABETH FARNSWORTH: I'm going to come back to that in a second, but just briefly first, what about language in the legislation, would that, would you go for that, if there was explicit language that made it legal in the case of protecting the life of the mother?
SEN. SMITH: We have the language--the language is protected. There is no--we have medical experts all over the place who are saying that there is absolutely no justification for performing this procedure. If you have to do an abortion to protect the life of the mother, there's certainly a more humane way to do it than that. Would you put your dog to sleep that way? It's bizarre. I mean, it's just bizarre.
ELIZABETH FARNSWORTH: Okay. Now on this point that you brought up, you disagree on whether this abortion procedure is performed very often and for what reasons. Could you state for us your understanding of when it's performed and why, and then Sen. Boxer too.
SEN. SMITH: Well, this is what the--you'll notice in the floor debate today this was not discussed. The procedure was never discussed by the other side, because it's, it's too horrifying to discuss. They've got to couch it in some other, some other way. The truth of the matter is that people could be--little children here can be aborted if they have Downs Syndrome, if they have some type of a deformity, you know, and I'd like to know how we define that deformity. Is it a missing hand? Is it a cleft palate? Just what is the reason? See, you can't get into that, because that's where they lose, they lose ground, they lose the integrity of the argument. This is an abortion that's the most brutal kind of an abortion. It is not necessary to save the life of the mother to do it in this manner, and everyone knows it. And that's the only thing we're trying to ban. That's it.
ELIZABETH FARNSWORTH: Sen. Boxer.
SEN. BOXER: Well, let me say what an insult it is to American families, to mothers and fathers, to suggest that they would go through an agonizing and, by the way, difficult late-term abortion because the child had a cleft palate. And I think Sen. Smith knows this just is not so. And he ducked the question as far as would he support it if it said clearly in the legislation, no, you cannot use this, except life or health of the mother. Now, I have the bill right in front of me. And it is very clear here--it says, "It is an affirmative defense to a prosecution or a civil action under the section which must be proved by preponderance of the evidence that a partial birth abortion was performed by a physician who believed it was necessary to save the life of the mother." They don't even talk about health of the mother. The fact of the matter is it is a criminal act on its face. This would be the first time in history Congress ever looked at a medical procedure, not a doctor over here, Sen. Smith, nor is the Senator, not a day in medical school, no real knowledge about what is at stake here, just the fact that he would talk about this as a partial birth abortion; this isn't a birth. This is a late-term abortion, which is undertaken in the most tragic of circumstances.
SEN. SMITH: It's not true.
SEN. BOXER: We have Vicky Wilson here, a registered nurse, a practicing Catholic. She was the parents of two and planning for a third. In the eighth month of pregnancy, an ultrasound showed the baby's brain was growing outside her skull. If she gave birth to that baby, she would have died, or in any event, had the most severe impacts because there would have been massive hemorrhages. This woman is a religious woman. She is putting her statement forward, and she's begging the Senators, please, think of the real-life circumstances here, make an exception for life and health of the mother.
ELIZABETH FARNSWORTH: Sen. Smith.
SEN. SMITH: May I respond to that?
ELIZABETH FARNSWORTH: Yes.
SEN. SMITH: I would just like to ask Sen. Boxer if there were no medical problems, there were no incidents of any medical problems with the baby and it was strictly elective, would you oppose it?
SEN. BOXER: I would vote for this bill if it had an exception for the life and the health of the mother.
SEN. SMITH: And we have that.
SEN. BOXER: That is what Roe V. Wade says. I think it's important to note that--
SEN. SMITH: We have it.
SEN. BOXER: --Roe V. Wade, the landmark Supreme Court decision, said that in the last two trimesters, i.e., in the late terms of an abortion, the states will govern the rules. And every single state in the United States absolutely has rules impacting the performance of late-term abortions. And here we have Senators from the Republican Party who are always saying let the states decide, who voted to cancel federal regulations for nursing homes, saying, let the states do it, suddenly say, we're going to outlaw a procedure. And they do not even support the concept of making an exception for life and health of the mother.
ELIZABETH FARNSWORTH: Excuse me, Sen. Boxer.
SEN. SMITH: May I quickly make one point.
ELIZABETH FARNSWORTH: Yes. And then I have another question for you, Sen. Smith.
SEN. SMITH: First of all, there were many people on the Democrat and Republican side, many Democrats in the House, pro-choice, liberal Democrats who voted against this horrible procedure. That's No. 1. No. 2, real quickly, saying that we've never voted on a medical procedure is wrong. Sen. Boxer knows it, because she supported one particular ban, which was put forth by, by Congresswoman Schroeder, which banned female genitalia mutilation. So there is precedent for having--for having medical practices, medical procedures, being voted on or being introduced as legislation. So it just depends on how you want to debate the issue.
SEN. BOXER: We've never--
ELIZABETH FARNSWORTH: Excuse me, Sen. Boxer.
SEN. BOXER: --banned a medical procedure--
SEN. SMITH: That's not a medical procedure?
SEN. BOXER: --to save the life of the mother.
SEN. SMITH: You didn't say that in your last--
SEN. BOXER: To save a life.
ELIZABETH FARNSWORTH: Sen. Boxer is proposing that this go to the Judiciary Committee. Do you oppose that, Sen. Smith?
SEN. SMITH: Yes, I do, because it's--it's simply a dilatory action that the only reason why Sen. Boxer and others want to move it to the Judiciary Committee is to kill the bill, so that they don't have to vote on this procedure. When the debate was going on the floor of the Senate, all we heard about were things that were just totally away from the issue that this child, this little baby, with moving hands, moving feet, is brought into the birth canal, held by this doctor, and then killed with scissors to the back of the head, with no anesthetic. That's what they don't want to talk about.
SEN. BOXER: Let me talk about another--
ELIZABETH FARNSWORTH: Sen. Boxer--
SEN. SMITH: Surely, we have better things in America to do than that.
ELIZABETH FARNSWORTH: Sen. Boxer, we have only very few seconds.
SEN. BOXER: Okay, in these few seconds. The other child is my daughter, is your daughter, is the Senator's wife. A call comes in the middle of the night to save that child, somebody's baby, who happens now to be a grown-up. You have to use this procedure. Do we want to be in a position where we don't even allow the doctor to use it if it's necessary to save her life? I hope we're honest with ourselves, because if it happened to us, we would say to the doctor, with the grace of God, save "my" child.
ELIZABETH FARNSWORTH: Okay, Sen. Smith, in the remaining five or ten seconds.
SEN. SMITH: Well, of course, that's not the issue. The issue is the brutality of the procedure used. That's what we're talking about here. This is not--this is not the issue, as Sen. Boxer has outlined.
SEN. BOXER: Well, that's how you framed it.
SEN. SMITH: Whether or not you support taking a child's life in this manner, that's the issue.
ELIZABETH FARNSWORTH: All right. Well, thank you both very much.