From: Subject: Date: Sun, 28 Mar 2004 07:25:38 -0500 MIME-Version: 1.0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://thomas.loc.gov/cgi-bin/query/C?r108:./temp/~r108jFq44y X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2800.1165 UNBORN VICTIMS OF VIOLENCE ACT OF 2004 -- (Senate - March 25,=20 2004)

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The PRESIDING OFFICER. Under the previous order, = the hour=20 of 10:30 having arrived, the Senate will proceed to the consideration of = H.R.=20 1997, which the clerk will report.=20

The assistant legislative clerk read as follows:=20

A bill (H.R. 1997) to amend title 18, United States = Code,=20 and the Uniform Code of Military Justice to protect unborn children from = assault=20 and murder, and for other purposes.=20

The PRESIDING OFFICER. The Senator from Ohio.=20

Mr. DeWINE. Madam President, I come to the = floor=20 this morning to begin the debate on the Unborn Victims of Violence Act. = I would=20 like first to thank our 40 cosponsors for their leadership and support = on this=20 issue.=20

Let me also thank specifically Senator Lindsey=20 Graham, who championed this issue on the House side for a number of = years=20 before he joined us here in the U.S. Senate. He has worked tirelessly to = see to=20 it that the most vulnerable members of our society are, in fact, = protected.=20

Let me also thank our lead House sponsors, = Congresswoman=20 MELISSA HART from Pennsylvania, and my friend and colleague from = the=20 State of Ohio, Congressman STEVE CHABOT. They have both been = great=20 champions of this great cause. They worked tirelessly to help get this = important=20 bill passed in the House of Representatives.=20

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Our bill is very simple. I will take just a couple = of=20 minutes to explain it. It is a bill about simple justice. It is a bill = about=20 doing what is right. I was asked yesterday by one of my colleagues, Why = do we=20 need this bill? Why is this bill on the floor?=20

This is what I responded yesterday and this is what = I would=20 say to my colleagues here in the Senate this morning. Imagine a pregnant = woman=20 in a national park or a pregnant woman on an Air Force base and she is = violently=20 assaulted. As a result of that assault, she loses her child; that child = dies.=20 Today, there is no Unborn Victims of Violence Act. Today, unless that = Federal=20 park or Air Force base is located in a State that has a similar law, a = Federal=20 prosecutor would search the Federal statute books in vain to find = anything to=20 charge that assailant for the death of that child, for the death of that = unborn=20 infant, the fetus. The only thing that Federal prosecutor would be able = to=20 charge that defendant with is the assault of the woman. The death of = that child=20 would not be able to be charged as what we would think would be a = separate=20 offense. Justice would not be done for that, what we would think would = be a=20 separate offense.=20

This bill corrects that. This bill recognizes there = are two=20 victims. There is the victim, the mother, who was assaulted; and there = is the=20 victim, the unborn child, who was either injured or killed. It is that = simple.=20

This bill recognizes when someone attacks and harms = a=20 mother and her unborn child that attack does in fact result in two = separate=20 victims: the mother and her child. That is what this bill does.=20

I will have more to say about this bill later. I = will=20 reserve the remainder of my time.=20

The PRESIDING OFFICER. The Senator from California. =

AMENDMENT NO. 2858=20

Mrs. FEINSTEIN. Madam President, I would like to = call up=20 amendment 2858.=20

The PRESIDING OFFICER. The clerk will report.=20

The assistant legislative clerk read as follows:=20

The Senator from California [Mrs. FEINSTEIN] = for=20 herself and Mr. Lautenberg, Mr. Bingaman, Mrs. = Boxer,=20 Mr. Kennedy, and Mr. CORZINE, proposes an amendment = numbered=20 2858.=20

Mrs. FEINSTEIN. I ask unanimous consent the reading = of the=20 amendment be dispensed with.=20

The PRESIDING OFFICER. Without objection, it is so = ordered.=20

The amendment is as follows:=20

(Purpose: Entitled the Motherhood Protection Act)

Strike all after the enacting clause and insert:=20

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Motherhood = Protection=20 Act''.

SEC. 2. PROTECTION OF PREGNANT WOMEN.

(a) IN GENERAL.--Title 18, United States = Code, is=20 amended by inserting after chapter 90 the following:

``CHAPTER 90A--PROTECTION OF PREGNANT WOMEN

``CHAPTER 90A--PROTECTION OF PREGNANT WOMEN

``Sec.=20

``1841. Causing termination of pregnancy or = interruption of=20 the normal course of pregnancy.``=A71841. Causing termination of = pregnancy or=20 interruption of the normal course of pregnancy=20

``(a)(1) Any person who engages in conduct that = violates=20 any of the provisions of law listed in subsection (b) and thereby causes = the=20 termination of a pregnancy or the interruption of the normal course of=20 pregnancy, including termination of the pregnancy other than by live = birth is=20 guilty of a separate offense under this section.=20

``(2)(A) Except as otherwise provided in this = paragraph,=20 the punishment for that separate offense is the same as the punishment = provided=20 for that conduct under Federal law had that injury or death occurred to = the=20 pregnant woman.

``(B) An offense under this section does not = require proof=20 that--

``(i) the person engaging in the conduct had = knowledge or=20 should have had knowledge that the victim of the underlying offense was=20 pregnant; or

``(ii) the defendant intended to cause the = termination or=20 interruption of the normal course of pregnancy.

``(C) If the person engaging in the conduct = thereby=20 intentionally causes or attempts to cause the termination of or the = interruption=20 of the pregnancy, that person shall be punished as provided under = section 1111,=20 1112, or 1113, as applicable, for intentionally terminating or = interrupting the=20 pregnancy or attempting to do so, instead of the penalties that would = otherwise=20 apply under subparagraph (A).

``(D) Notwithstanding any other provision of law, = the=20 death penalty shall not be imposed for an offense under this section.

``(b) The provisions referred to in subsection (a) = are the=20 following:

``(1) Sections 36, 37, 43, 111, 112, 113, 114, = 115, 229,=20 242, 245, 247, 248, 351, 831, 844(d), 844(f), 844(h)(1), 844(i), 924(j), = 930,=20 1111, 1112, 1113, 1114, 1116, 1118, 1119, 1120, 1121, 1153(a), 1201(a), = 1203,=20 1365(a), 1501, 1503, 1505, 1512, 1513, 1751, 1864, 1951, 1952(a)(1)(B),=20 1952(a)(2)(B), 1952(a)(3)(B), 1958, 1959, 1992, 2113, 2114, 2116, 2118, = 2119,=20 2191, 2231, 2241(a), 2245, 2261, 2261A, 2280, 2281, 2332, 2332a, 2332b, = 2340A,=20 and 2441 of this title.

``(2) Section 408(e) of the Controlled Substances = Act of=20 1970 (21 U.S.C. 848(e)).

``(3) Section 202 of the Atomic Energy Act of 1954 = (42=20 U.S.C. 2283).

``(c) Subsection (a) does not permit prosecution--

``(1) for conduct relating to an abortion for = which the=20 consent of the pregnant woman has been obtained or for which such = consent is=20 implied by law in a medical emergency;

``(2) for conduct relating to any medical = treatment of the=20 pregnant woman, or matters related to the pregnancy; or

``(3) of any woman with respect to her = pregnancy.''.

(b) CLERICAL AMENDMENT.--The table of = chapters for=20 part 1 of title 18, United States Code, is amended by inserting after = the item=20 relating to chapter 90 the following:

``90A. Protection of pregnant women

1841''.

SEC. 3. MILITARY JUSTICE SYSTEM.

(a) PROTECTION OF PREGNANT = WOMEN.--Subchapter X of=20 chapter 47 of title 10, United States Code (the Uniform Code of Military = Justice), is amended by inserting after section 919 (article 119) the=20 following:``=A7919a. Art. 119a. Causing termination of pregnancy or = interruption=20 of normal course of pregnancy=20

``(a)(1) Any person subject to this chapter who = engages in=20 conduct that violates any of the provisions of law listed in subsection = (b) and=20 thereby causes the termination of a pregnancy or the interruption of the = normal=20 course of pregnancy, including termination of the pregnancy other than = by live=20 birth, is guilty of a separate offense under this section.=20

``(2)(A) Except as otherwise provided in this = paragraph,=20 the punishment for that separate offense is the same as the punishment = for that=20 conduct under this chapter had that injury or death occurred to the = pregnant=20 woman.

``(B) An offense under this section does not = require proof=20 that--

``(i) the person engaging in the conduct had = knowledge or=20 should have had knowledge that the victim of the underlying offense was=20 pregnant; or

``(ii) the defendant intended to cause the = termination or=20 interruption of the normal course of pregnancy.

``(C) If the person engaging in the conduct = thereby=20 intentionally causes or attempts to cause the termination of or the = interruption=20 of the pregnancy, that persons shall be punished as provided under = section 918,=20 919, or 880 of this title (article 118, 119, or 80), as applicable, for=20 intentionally causing the termination of or interruption of the = pregnancy or=20 attempting to do so, instead of the penalties that would otherwise apply = under=20 subparagraph (A).

``(D) Notwithstanding any other provision of law, = the=20 death penalty shall not be imposed for an offense under this section.

``(b) The provisions referred to in subsection (a) = are=20 sections 918, 919(a), 919(b)(2), 920(a), 922, 924, 926, and 928 of this = title=20 (articles 111, 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128).

``(c) Subsection (a) does not permit prosecution--

``(1) for conduct relating to an abortion for = which the=20 consent of the pregnant woman has been obtained or for which such = consent is=20 implied by law in a medical emergency;

``(2) for conduct relating to any medical = treatment of the=20 pregnant woman or matters relating to her pregnancy; or

``(3) of any woman with respect to her = pregnancy.''.

(b) CLERICAL AMENDMENT.--The table of = sections at=20 the beginning of subchapter X of chapter 47 of title 10, United States = Code (the=20 Uniform Code of Military Justice), is amended by inserting after the = item=20 relating to section 919 the following:

``919a. Causing termination of pregnancy and = termination of=20 normal course of pregnancy.''.

Mrs. FEINSTEIN. Madam President, I agree with = virtually=20 everything the Senator from Ohio has said. Although there are many State = laws=20 which do take into consideration a fetus, it is true that the Federal = laws,=20 which would impact only those on Federal property, are silent. I am in = complete=20 concurrence with everything the Senator has said. I have had the = privilege of=20 working with him, so it is a delight for me to be able to discuss and = debate=20 this issue with him.=20

The substitute amendment I have called up is on = behalf of=20 Senators BINGAMAN, BOXER, CORZINE, KENNEDY and LAUTENBERG. = I would=20 like to make clearer a couple of places in that amendment.=20

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I ask unanimous consent to send a modification to = the desk.=20

Mr. DeWINE. I object.=20

The PRESIDING OFFICER. Objection is heard.=20

Mrs. FEINSTEIN. I hear the objection. I am rather = surprised=20 by the objection. It is generally common courtesy to allow a Senator to = amend=20 his or her amendment. However, I believe our amendment is clear on its = face.=20

I would like to point out that since 2000, in the = Senate,=20 there has been no hearing on this amendment and no opportunity for the = Judiciary=20 Committee to make corrections. This amendment is on the floor as a rule = XIV.=20

I am very disappointed the Senator will not allow = me to=20 make a modification. For the record, let me simply state that I was = proposing a=20 minor change designed to further clarify what I believe to be the clear = intent=20 and application of our amendment. The bottom line is this: Even without = the=20 technical changes, our amendment is clear. We include the same = structure, the=20 same crimes, and the exact same penalties as the DeWine bill.=20

The only real difference between our amendment and = the=20 DeWine bill is that we do not attempt to place into law language = defining life=20 as beginning at conception--beginning with an embryo.=20

Just to clarify for the purpose of giving judges = more=20 legislative history with which to interpret our amendment, let me be = clear about=20 the two provisions at issue.=20

The first modification concerns section (c)(2) of = our=20 amendment which reads ``For medical treatment of the woman or matters = relating=20 to the pregnancy.'' This language simply tracks the DeWine language and = the=20 House bill language. I believe it is quite clear what we meant by this = was to=20 exempt medical treatment of the woman or any other medical treatment = related to=20 the pregnancy.=20

The second criticism or modification was that = section=20 (c)(2) which applies to intentional crimes against the pregnant woman is = awkwardly worded and thus vague. The intent of the section is also = clear. Our=20 amendment and the House and the DeWine bill would punish an individual = who=20 intentionally ends a pregnancy in accordance with the murder, = manslaughter, or=20 intent statutes already on the books. The level of penalty would be = determined=20 by a judge and would be based on the level of intent. For instance, = punishment=20 under the murder statute would require malice. Punishment under the = manslaughter=20 statute would not. But either way the intent is clear.=20

I believe the only real reason to raise these = issues is to=20 try to defeat our amendment without addressing the underlying fact that = our=20 amendment contains the same law enforcement goals as the DeWine and the = House=20 bill, but without injecting a debate over a woman's right to choose into = the=20 equation.=20

This issue is not as simple as it seems at first = glance.=20 Everyone in the Senate wants to accomplish the same goal--punishing = those who,=20 by attacking or killing a pregnant woman, deprive families not only of = the=20 mother but also of the joy to help raise the child yet to be born. = Punishing=20 those who end a pregnancy and thus end the potential life experience, = all of the=20 hopes and dreams embodied by that pregnancy and the child to come, is an = important advance in Federal criminal law.=20

But here is where it gets more complicated. The = House bill=20 before us, the DeWine bill, now takes the position in law that life = begins at=20 conception. This, then, involves this bill directly into a woman's right = to=20 choose--an issue that need not be raised and should not be raised in = this=20 debate.=20

Although the text of the amendment itself = technically=20 provides an exception for abortion, experts on both sides of this issue = agree=20 the language in the bill will clearly place into Federal law a = definition of=20 life that will chip away at the right to choose as outlined in Roe v. = Wade. I=20 hope to make that crystal clear as I go on.=20

The Philadelphia Inquirer in its editorial = yesterday put it=20 succinctly by saying:=20

If passed and signed, as promised by President = Bush, the=20 Federal law would be the first to recognize unborn children at any stage = of=20 development as victims with legal rights separate from those of their = mothers.=20 ..... It's so easy to see how a Federal unborn victims law, coupled with = unborn=20 victims laws in 29 States, will form the basis of a new legal challenge = to Roe=20 v. Wade, the landmark case that gives women the right to terminate = certain=20 pregnancies. If a fetus who dies during a crime is a murder victim, then = isn't=20 abortion murder?=20

That is the Philadelphia Inquirer editorial of = yesterday.=20

That is why I offered this substitute amendment. I = think=20 when I am finished describing the differences between our amendment and = the=20 underlying legislation, it will become crystal clear that these two = measures=20 accomplish the same goal in terms of criminal justice and the same goal = in terms=20 of deterrence.=20

The difference between the two measures--the only=20 difference--is our substitute does not include a new unprecedented = definition of=20 when life begins.=20

The bottom line is this: It is unnecessary to = include a=20 definition of when life begins in this legislation, and including such = language=20 could, and I believe will, make it much more difficult to obtain = convictions in=20 these cases.=20

The substitute amendment I offer today essentially = provides=20 that if a perpetrator of an attack on a woman commits certain violent = Federal=20 crimes against that woman and harms or ends her pregnancy, a prosecutor = can=20 charge the perpetrator with the underlying Federal crime first but can = also=20 charge the perpetrator with harming or ending her pregnancy and = effectively=20 harming or killing another potential life.=20

How is this different from the DeWine bill? It is = not=20 different at all. The DeWine bill provides exactly the same provisions. = A=20 prosecutor can charge two crimes--one for the underlying attack on the = woman and=20 one for the termination of the pregnancy. The penalties in the DeWine = bill are=20 identical to the penalties in our amendment.=20

For instance, the DeWine bill provides that if the = separate=20 offense results in the ending of the pregnancy, the penalty is identical = to the=20 penalty for taking an adult's life. The Feinstein substitute is the = same. The=20 DeWine bill says the maximum penalty for ending a pregnancy is a life = sentence,=20 and the maximum penalty for harming that pregnancy is a 20-year = sentence. The=20 Feinstein substitute is the same.=20

Neither bill allows for the death penalty and = neither bill=20 applies to conduct to which the pregnant woman has consented.=20

The simple truth is this: Whichever bill passes in = the end,=20 a prosecutor will be given exactly the same ability to charge a = defendant. The=20 crimes are the same. The penalties are the same. Everything will be the = same=20 except a few simple words that inject the abortion debate into this = issue by=20 clearly establishing in criminal law for the first time in history that = life=20 begins at the moment of conception. I contend that if this result is=20 incorporated in law, it will be the first step in removing a woman's = right to=20 choice, particularly in the early months of a pregnancy before = viability.=20

As we all know, the question of when life begins is = a=20 profound and a deeply divisive one. So I don't believe we should be = addressing=20 that issue here today--without a hearing since the year 2000, without = expert=20 testimony, and without need to do so. But, more importantly than that, = this=20 language unnecessarily turns a simple law into a controversial one and, = most=20 importantly, this language could make it more difficult for prosecutors = to=20 obtain a conviction for the second defense of harming or ending a = pregnancy. I=20 will describe why later.=20

It is possible that some pro-choice jurors might = refuse to=20 convict simply because the language of the law refers to an unborn = ``child in=20 utero''--that is a quote, ``child in utero,'' that is bill = language--when the=20 victim may have only been 1 week or even 1 day pregnant.=20

An embryo in this bill becomes a person for the = purpose of=20 Federal criminal sanctions for the first time in America's history. That = is the=20 significance of this bill. This substitute allows jurors to look at = evidence and=20 the law and it doesn't force jurors to grapple with the complicated and=20 controversial issue of when life begins.=20

Including language defining the beginning of life = is not in=20 any way necessary to the criminal law but, rather, it is only relevant = to the=20 abortion debate.=20

Let me show you a statement that I believe reveals = the=20 clear intent of this=20

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bill. That statement is made by = Samuel Casey,=20 executive director and CEO of the Christian Legal Society. This is the = intent:=20

In as many areas as we can, we want to put on the = books=20 that the embryo is a person ..... that sets the stage for a jurist to=20 acknowledge that human beings at any stage of development deserve=20 protection--even protection that would trump a woman's interest in = terminating a=20 pregnancy.=20

This will be the first strike against all abortion = in the=20 United States of America. This will draw back the veil and, I believe, = makes=20 crystal clear what this legislation actually is. This is the key to much = of the=20 support for this legislation: Not just adding a new criminal law on the = books,=20 but also defining life as beginning at conception in statute here and = then in=20 the future, wherever else and however else possible. This is a concerted = effort=20 to insert the definition of when life begins into the law wherever = possible.=20

Let me give some examples of quotes that again make = this=20 very clear. The intention of the antichoice community has been clearly = revealed=20 by a Republican strategist by the name of Jeffrey Bell. Here is how he = put it:=20

Parental notification rules don't really prohibit = anything.=20 They don't ban the act of abortion. But a cloning ban--this is saying = that=20 something should be illegal. And if taking [unborn] human life became = illegal,=20 that would be a breakthrough. Since Roe, no one has been able to do = that.=20

So this, Members of the Senate, is clearly the = agenda,=20 freezing the law, any law, in this case criminal law, that life begins = at=20 conception. Then, once declared legally, that law becomes the = stepping-stone to=20 refuse embryonic stem cell research and to ban abortion. Once the law = defines=20 human life as beginning at conception, stem cell research could become = murder,=20 abortion becomes murder, even in the first days of a pregnancy.=20

That is where this is going. Please see it. = Understand it.=20 Know it. Everyone in this body who believes embryonic stem cell research = holds a=20 promise for cures to Parkinson's, for cures to Alzheimer's, for cures to = juvenile diabetes, for perhaps spinal cord rupture repair, will have to = contend=20 with a statute that has said life begins at conception. So embryonic = stem cell=20 research may become murder and abortion in the first trimester becomes = murder.=20 That is where this debate is taking us. That is the reason for this = bill.=20

The supporters of this bill will say they do not = want to=20 undermine Roe, but that is precisely what Nebraska State senator Mike = Foley said=20 when he proposed legislation to allow wrongful death suits involving the = termination of a pregnancy. Let me quote him. Let me pull back the veil = again:=20

We said specifically in our bill that we did not = want to=20 challenge Roe v. Wade, and that would not affect abortion in the legal = sense.=20 But philosophically, sure, these laws are a challenge ..... If a state = can put=20 someone in jail for life because they took the life of an unborn child, = then=20 we're clearly saying there is something very valuable there.=20

Why is he saying that? He is saying that because a = fetus,=20 even at conception, becomes a person, becomes a human being.=20

Professor R. Alta Charo of the University of = Wisconsin=20 further points out how these efforts are aimed at changing the law and = how the=20 Supreme Court might rule in future abortion cases. Charo said recently:=20

If you can get enough of these bricks in place, = draw enough=20 examples from different parts of life and law where embryos are treated = as=20 babies, then how can the Supreme Court say they're not? This is, without = question, conscious strategy.=20

This is a professor of law at the University of = Wisconsin,=20 pulling the veil back further and exposing this exactly for what it is, = a=20 ``conscious strategy'' to say life begins at conception and enshrine it = in this=20 Federal law, and then other laws, and then other laws, and then go to = the=20 Supreme Court and Roe vs. Wade is struck down.=20

In a CNN interview last May, the distinguished = chairman of=20 the Senate Judiciary Committee--and I have had the pleasure of serving = on that=20 committee for 12 years--made the following comment:=20

They say it undermines abortion rights. It does = undermine=20 it. But that's irrelevant. We're concerned here about a woman and her = child=20 ..... The partisan arguments over abortion should not stop at a bill = that=20 protects women and children.=20

If that is true, then the Senator from Utah should = vote for=20 our amendment because our amendment does exactly the same thing, the = same=20 penalties for the same crimes as the House bill.=20

When Justice Harry Blackmun wrote in 1973 the Roe = decision,=20 he said:=20

..... the unborn have never been recognized in law = as=20 persons in the whole sense .....=20

Let me repeat that: ``the unborn have never been = recognized=20 in the law as persons in the whole sense.''=20

What he did by saying that was actually, = inadvertently=20 provide a roadmap for the anti-choice people and those who want to = undermine Roe=20 and eventually to reverse it. This bill, the underlying bill, is = following that=20 roadmap by changing a criminal law in a way which clearly says an embryo = can be=20 an individual as a person for the purposes of criminal prosecution.=20

Clearly, this is a concerted effort to codify in = law the=20 legal recognition life begins at conception. If we allow that to happen = today in=20 this bill or in any bill, we put the right to choose squarely at risk. = Roe v.=20 Wade allowed States to claim a legitimate interest in preventing = abortion=20 postviability. Many states--and we both know that--have laws on the = books with=20 respect to the third trimester and even the second trimester.=20

If the concept of viability, which means when a = fetus can=20 live outside of the womb, gives way to a definition that provides life = begins at=20 conception, we could soon see abortion in this country outlawed = entirely. Our=20 amendment avoids that problem and focuses only on the need to increase = penalties=20 for those who attack pregnant women.=20

There has been a lot of discussion about the tragic = Laci=20 Peterson case in my State of California. I have had the pleasure of = meeting with=20 Laci's mother, Sharon Rocha, a very fine woman and a woman who I can = understand=20 is decimated by what happened to her daughter. Some in the Senate have = suggested=20 that this tragedy is evidence of a loophole in Federal law that needs to = be=20 closed.=20

However, the House bill and the DeWine bill will = have no=20 impact in any way, shape, or form on the Laci Peterson case. The = perpetrator of=20 that crime will be prosecuted and punished under current California law = and the=20 perpetrators of almost all similar crimes through the country will, in = fact, be=20 prosecuted under State laws, not a Federal law, unless the crime takes = place on=20 Federal property.=20

In my State of California, the legislature amended=20 California's existing murder statute in 1970--that=20

is 34 years ago--to read as follows:=20

Murder is the unlawful killing of a human being, or = a=20 fetus, with malice aforethought.=20

Now, if this were the case, if this were written in = Federal=20 law, easy, I would support it in a minute because it draws a = distinction, it=20 permits the ``double charge'' that both Senator DeWine and I = agree is=20 necessary. But the use of the words ``or fetus'' makes a distinction = between a=20 human being and a fetus for purposes of the application of the homicide = statute.=20 That is important. And that is the law under which Laci Peterson's = alleged=20 murderer is going to be prosecuted.=20

If you look at it, you will see it is completely = adequate.=20 The complexity of that case, which continues today, is one that relates = to=20 evidence and proof, not a problem with statutes or penalties. The = California=20 statute is wholly adequate. So the bill we discuss today would have = absolutely=20 no impact on the Laci Peterson case, none.=20

Now, I would like to bring to the Senate's = attention a July=20 10 letter from a Stanford law professor. He goes into the problems of = what this=20 law, if passed, could actually do in the courtroom to actual = prosecutions and to=20 juries. His name is George Fisher. He is a criminal law expert. He is a = former=20 prosecutor. He served as an assistant DA, an assistant attorney general. = He has=20 taught criminal law at Stanford Law School since 1995, and he has = founded=20 Stanford's criminal prosecution unit.=20

He makes three points. Let me quote him:=20

The Bill's apparent purpose of influencing the = course of=20 abortion politics will discourage prosecutions under any future Act. I = do not=20 know what motives gave rise to the Bill's use of the expressions ``child = in=20 utero'' and ``child, who is in utero,'' but I do know that any vaguely = savvy=20 reader will conclude that these terms and the Bill's definition of=20

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them were intended by the = Bill's authors to=20 influence the course of abortion politics.=20

If the authors of the Bill truly seek to protect = unborn=20 life from criminal violence, they will better accomplish this purpose by = avoiding such expressions as ``child in utero.'' Better alternatives = would refer=20 to injury or death to a fetus or damage to or termination of a = pregnancy.=20

Dr. Fisher goes on to say:=20

The Bill's apparent purpose of influencing the = course of=20 abortion politics will motivate prosecutors to exclude those prospective = jurors=20 who otherwise would be most sympathetic to the prosecution's case.=20

I predict that many or most judges will bar = prosecutors and=20 defense counsel from questioning prospective jurors about their views on = abortion or about related matters such as their religion, religious = practices,=20 or political affiliations. Forced to act largely on instinct, = prosecutors may be=20 inclined to exercise peremptory challenges against those prospective = jurors who=20 appear to be most sympathetic to the rights of pregnant women. This = result=20 clearly would frustrate the Bill's stated purpose of protecting unborn = life from=20 criminal violence.=20

He concludes:=20

The Bill's apparent purpose of influencing the = course of=20 abortion politics offends the integrity of the criminal law. To anyone = who cares=20 deeply about the integrity of the criminal law, this Bill's apparent = attempt to=20 insert an abortion broadside into the criminal code is greatly = offensive.=20

Now, that is a former prosecutor, a former = assistant DA,=20 assistant AG, a professor of law at Stanford Law School--one of the = great law=20 schools of our country--and head of the criminal prosecution unit at = Stanford=20 Law School.=20

I ask unanimous consent to have the entire letter = printed=20 in the RECORD following my remarks.=20

The PRESIDING OFFICER (Mr. ENSIGN). Without=20 objection, it is so ordered.=20

(See exhibit 1.)=20

Mrs. FEINSTEIN. Mr. President, the substitute = amendment,=20 which I have offered, has been crafted to avoid these problems.=20

Our amendment, the Motherhood Protection Act, will=20 accomplish the same goal as the Unborn Victims of Violence Act, but will = do so=20 in a way that does not involve us in the debate about abortion or when = life=20 begins. In my view, there is no reason to vote against this substitute = unless=20 the intention is to establish legally that human life, for the purposes = of=20 Federal criminal law, begins at the moment of conception because, ladies = and=20 gentlemen, that is exactly what this bill does.=20

To emphasize the point, let me again turn to the = comments=20 of Samuel Casey, executive director and CEO of the Christian Legal = Society, who=20 clearly states the intention behind the bill in this quote:=20

In as many areas as we can, we want to put on the = books=20 that the embryo is a person. .....That sets the stage for a jurist to=20 acknowledge that human beings at any stage of development deserve=20 protection--even protection that would trump a woman's interest in = terminating a=20 pregnancy.=20

Let there be no doubt about the intent. Anyone who = is=20 pro-choice cannot vote for this bill without the expectation that they = are=20 creating the first legal bridge to destroy Roe v. Wade.=20

Now, there is a time and a place to discuss the = morality=20 and philosophy of when life begins. This is not that time. Now is the = time to=20 change our Federal law to punish criminals who would inflict grievous = injuries=20 or death upon pregnant women on Federal lands. So I urge my colleagues = to=20 support the substitute amendment.=20

Exhibit 1=20

STANFORD LAW SCHOOL,=20

Stanford, CA, July 10, 2003.
Senator DIANNE=20 FEINSTEIN,
U.S. Senate, Senate Hart Office Building, = Washington,=20 DC.=20

DEAR SENATOR FEINSTEIN: I wish to express my = concern=20 about the current formulation of S. 1019, the Unborn Victims of Violence = Act of=20 2003. Although I fully endorse the Bill's ultimate aim of protecting = pregnant=20 women from the physical and psychological trauma of an endangered or = lost=20 pregnancy, I believe that the Bill's current formulation will frustrate = rather=20 than forward this goal.=20

I write both as a former prosecutor and as a law = professor=20 specializing in criminal law and criminal prosecution. At the outset of = my=20 career, I served as an assistant district attorney in Middlesex County, = Mass.,=20 and as an assistant attorney general in the Massachusetts Attorney = General's=20 office. I then went to Boston College Law School, where I administered = and=20 taught in the criminal prosecution clinic. I have been at Stanford since = 1995=20 and a tenured professor of law since 1999; during the next academic = year, I will=20 serve as Academic Associate Dean. In 1996 I founded Stanford's criminal=20 prosecution clinic and have administered and taught in the clinic ever = since. I=20 have also created a course in prosecutorial ethics, which I taught at = Boston=20 College Law School and, as a visitor, at Harvard Law School.=20

My background and interest in criminal prosecution = prompt=20 me to raise three objections to this Bill. All of them focus on the = Bill's use=20 of the expressions ``child in utero'' and ``child, who is in utero,'' = and on its=20 definition of these terms as ``a member of the species homo sapiens, at = any=20 stage of development, who is carried in the womb.''=20

First: The Bill's apparent purpose of influencing = the=20 course of abortion politics will discourage prosecutions under any = future Act.=20

I do not know what motives gave rise to the Bill's = use of=20 the expressions ``child in utero'' and ``child, who is in utero,'' but I = do know=20 that any vaguely savvy reader will conclude that these terms and the = Bill's=20 definition of them were intended by the Bill's authors to influence the = course=20 of abortion politics. It is a fair prediction that when a pro-life = President is=20 in office, prosecutions under this Bill will be more frequent than when = a=20 pro-choice President is in office. That is because the public will = interpret=20 this Bill as suggesting that abortion is a potentially criminal act and = will=20 interpret prosecutions under the Bill as endorsing this sentiment.=20

Second: The Bill's apparent purpose of influencing = the=20 course of abortion politics will motivate prosecutors to exclude those=20 prospective jurors who otherwise would be most sympathetic to the = prosecution's=20 case.=20

If I were prosecuting a case under this Bill, I = would hope=20 to have a jury that includes persons deeply sensitive to the rights and=20 interests of pregnant women. Such jurors would regard an attack on a = pregnant=20 woman as being a twofold crime, comprising both the injury directly = inflicted on=20 the mother and the stark emotional and physical trauma resulting from = injury to=20 or loss of her pregnancy.=20

But such jurors also will be more likely than = others to=20 believe that pregnant women have the right to exercise autonomy over = their=20 bodies and to choose whether to abort a pregnancy. I predict that many = or most=20 judges will bar prosecutors and defense counsel from questioning = prospective=20 jurors about their views on abortion or about related matters such as = their=20 religion, religious practices, or political affiliations. Forced to act = largely=20 on instinct, prosecutors may be inclined to exercise peremptory = challenges=20 against those prospective jurors who appear to be most sympathetic to = the rights=20 of pregnant women. This result clearly would frustrate the Bill's stated = purpose=20 of protecting unborn life from criminal violence.=20

Third: The Bill's apparent purpose of influencing = the=20 course of abortion politics offends the integrity of the criminal law.=20

To anyone who cares deeply about the integrity of = the=20 criminal law, this Bill's apparent attempt to insert an abortion = broadside into=20 the criminal code is greatly offensive. The power to inflict criminal = penalties=20 is, second only to the power to wage war, the highest trust invested in = our=20 institutions of government. Because the power to make and enforce = criminal laws=20 inherently carries enormous potential for abuse, those who exercise that = power=20 must always do so with a spirit free of any ulterior political motive. = The=20 American Bar Association's Standards Relating to the Administration of = Criminal=20 Justice provide that ``[i]n making the decision to prosecute, the = prosecutor=20 should give no weight to the personal or political advantages or = disadvantages=20 which might be involved ..... .'' (Standard 3-3.9(d).) Not all = prosecutors=20 conduct themselves with fidelity to this principle, but we may readily = condemn=20 those who do not. We may likewise condemn other public actors who abuse = the=20 sacred public trust of the criminal sanction for political ends.=20

For these reasons, I object to the current = formulation of=20 the Unborn Victims of Violence Bill. As I am confident that an = alternative=20 version of the Bill can fully accomplish its stated purpose of = protecting unborn=20 life from criminal violence while avoiding each of the difficulties I = have=20 outlined above, I strongly encourage the Senate to modify the Bill in = the ways I=20 have suggested above or in some other manner that avoids the freighted = and=20 frankly politicized terms, ``child in utero'' and ``child, who is in = utero.''=20

My thanks to you for your consideration of my = views.=20

Sincerely,=20

George Fisher,
Professor of Law.=20

Mrs. FEINSTEIN. Mr. President, how much time have I = consumed?=20

The PRESIDING OFFICER. The Senator has 89 minutes = left.=20

Mrs. FEINSTEIN. I have 89 minutes remaining?=20

The PRESIDING OFFICER. Yes.=20

Mrs. FEINSTEIN. I thank the Chair.=20

I know the Senator from New Jersey is on the floor = wishing=20 time.=20

Mr. DeWINE. He can take it now.=20

Mrs. FEINSTEIN. Good. May I ask the Senator how = much time=20 he would like?=20

Mr. LAUTENBERG. I would like to have about 10 = minutes.=20

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Mrs. FEINSTEIN. Mr. President, I yield 10 minutes = to the=20 Senator from New Jersey.=20

The PRESIDING OFFICER. The Senator is recognized = for 10=20 minutes.=20

The Senator from New Jersey.=20

Mr. LAUTENBERG. Mr. President, I thank my colleague = from=20 California and also our distinguished colleague from Ohio.=20

I rise to express my strong opposition to the = underlying=20 bill and support for the amendment by the Senator from California.=20

I have long supported legislation that combats = domestic=20 violence. I was the author of the domestic violence gun ban because = abusers=20 should not have access to weapons, to guns. Whether an abuser is = terrorizing his=20 wife or his children, let's take away their means to inflict further = terror and=20 abuse. So far, my law has prevented nearly 30,000 abusers from obtaining = guns.=20

Because of my long-term commitment to stopping = violence=20 against women and children, I take offense at the fact that the backers = of this=20 bill are exploiting this issue in order to advance another anti-choice = agenda.=20

We see this regularly around this place. I saw it = in a=20 commerce subcommittee meeting that was supposed to discuss science, = space, and=20 technology. The witnesses who were at the table were there to talk about = their=20 opposition to abortion and their experience after they themselves had = abortions.=20 They made their decisions after an action that they took that placed = them in=20 that position.=20

Now they wanted to block everybody else from having = a=20 chance to make their personal choices.=20

We have to understand what underlies this issue. = Yes, it is=20 worthwhile to protect people and those who are not yet born against = violence,=20 but to make it a crime of this magnitude, when there is so much else at = stake in=20 the matter of choice, decided many years ago by the Supreme = Court--supporters of=20 this bill will tell you this legislation protects women, protects = children, and=20 this is a bill about punishing crime. But if you want to know what this = bill is=20 really about, you only need listen to what a leading supporter of this = bill told=20 CNN when asked about the legislation. I quote him:=20

They say it undermines abortion rights. It does = ..... But=20 that's irrelevant.=20

That is the prevailing attitude of those who want = to impose=20 yet another restriction on a woman's choice, on the protection of a = woman's=20 health. This bill is intended, plainly and simply, to undermine Roe v. = Wade. But=20 rather than being direct about the goal, anti-choice advocates want to = use=20 tragedies like violence against women as a red herring to move their = agenda.=20

Over and over, we see this body taking up = legislation that=20 I believe is part of an attempt to establish what I call a = ``male-ogarchy'' in=20 our society. A male-ogarchy is a society in which men are making = decisions for=20 and about women. Anti-choice advocates simply don't trust women and = their=20 doctors to know what is best for their bodies and their lives. We even=20 encountered this male-ogarchy last year when this body told doctors and = their=20 patients that it is Congress, rather than the medical experts, who know = best=20 about their health. And when the so-called partial-birth abortion bill = was=20 signed, there were all men on the stage with the President of the United = States,=20 smiling and gloating as they took away the right of a woman, in = consultation=20 with her doctor and her conscience, to make a decision that, though = painful, is=20 appropriate for her well-being.=20

Do we want to decide here whether or not a woman = has a=20 right to make a decision about her choice for an abortion? Perhaps she = has two,=20 three, four other children at home and her health is in jeopardy. We are = saying:=20 It doesn't matter what you think, Madam. We are going to make the = decision for=20 you.=20

That is why there wasn't one woman standing with = the=20 President at the White House the day that so-called partial-birth = abortion=20 prohibition passed the Senate, when the President signed the bill.=20

President Bush and his supporters in the Senate say = they=20 care about domestic violence and protecting women. But if that is the = case, how,=20 then, do we explain the fact that the President's budget cuts funding = for the=20 Violence Against Women Act programs by $116 million next year? Is that = going to=20 help women? Is that going to make life better for them? No. It is going = to make=20 life worse. Those are living people. Those are people who were here. = Those are=20 people for whom this male group wants to decide, make decisions.=20

If Congress wants to get serious about violence = against=20 women and children, let's do something real about it. Let's fund = programs that=20 provide money to law enforcement to prevent domestic violence and sexual = assault. Let's fund battered women's programs and rape crisis centers = instead of=20

cutting funding for these often lifesaving = services. Let's=20 improve access to shelters, making it easier for abused women and their = children=20 to flee that abuse.=20

If this so-called Unborn Victims of Violence Act = were=20 actually about violent crime, then the domestic violence community would = be in=20 support of it. But they oppose the bill. The National Network to End = Domestic=20 Violence, the National Coalition Against Domestic Violence, and the = Family=20 Violence Prevention Fund, all oppose this legislation.=20

Many backers of this bill also support giving a $1 = trillion=20 tax break to the wealthiest among us, rather than giving it to the = struggling=20 working families who need it to help pay for everyday goods and = services,=20 programs such as Head Start for children who don't have a comfortable = home life=20 that permits them to engage in the process of learning or of expecting = to learn,=20 who often get their only nutritional meal from the program. Three = hundred=20 thousand of those children are denied access to these programs because = we have=20 taken away the funding to give tax breaks to those who have been = fortunate=20 enough to live in this country, to make a lot of money, to succeed.=20

I am one of those. I had a good business career, as = did=20 many here. We don't need this kind of thing. We don't want it. We want = our=20 country to be strong. We want the strength to be built in a harmonious = society=20 and to lend a hand to those who don't have the ability to help = themselves. But=20 now that can't happen. We are focused on giving tax breaks to the = wealthy and=20 making them permanent, as we dig ourselves deeper into debt.=20

Many of my colleagues who support this bill also = reject=20 expending health insurance coverage for poor and lower middle-class = children and=20 their families. Many who support this bill will tell you they want to = simply=20 protect children. I find it ironic that they only want to protect = children=20 before they are born, but they don't want to do what they have to after = they are=20 born. I see it as hypocrisy.=20

I challenge supporters of this bill to get serious = about=20 protecting women and children and pass meaningful legislation that = improves the=20 lives of these women and children, not this undercover move to restrict = choice=20 for women.=20

The PRESIDING OFFICER. Who yields time?=20

Mrs. FEINSTEIN. Mr. President, I reserve the = remainder of=20 my time.=20

The PRESIDING OFFICER. The Senator from Ohio.=20

Mr. DeWINE. Mr. President, I have a great = deal of=20 respect for my colleagues from New Jersey and California. My colleague = from New=20 Jersey knows I care about what happens after children are born. I care = about=20 their health. I believe I have demonstrated that in the Senate. In fact, = he and=20 I have worked on these issues together. I have worked with my colleague = from=20 California on many issues having to do with children. We just happen to = disagree=20 on this issue.=20

I have a great deal of respect for both of them. We = have=20 worked together on a bipartisan basis on a wide range of issues. I would = hope=20 that as we debate this bill, we would focus on the legislation. I say = that with=20 all due respect. I don't understand--again, with all due respect to my=20 colleagues--what debate about the motives of people has to do with what = the=20 facts are.=20

I am going to try to confine my debate to what I = think are=20 the essential facts. I think they are fairly simple. Let me talk for a = few=20 moments about what I believe are the essential facts.=20

I ask my colleagues who are listening to this = debate to=20 remember a couple of things about the Feinstein amendment. I am going to = keep=20 coming back to these central facts about the Feinstein amendment.=20

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No. 1, the Feinstein amendment does not recognize a = second=20 victim. Our bill does. The Feinstein amendment creates a legal fiction. = It is=20 contorted, it twists the law in a sense--maybe a better way of saying it = is not=20 that it twists the law; it doesn't do that, but it twists the reality of = the=20 common sense of people when they look at this. When they see a pregnant = woman=20 who is assaulted and her child dies, they intuitively know there is a = victim=20 besides the mother. They know the mother is a victim, but they also know = there=20 is a second victim.=20

The vast majority of the American people, if you = ask them=20 was there another victim, will say of course there are two victims. Our = bill=20 recognizes the second victim. The Feinstein amendment refuses to = recognize the=20 second victim. Now we can talk about punishment and all kinds of things, = but it=20 refuses to recognize good common sense.=20

This bill in front of us has nothing to do with = abortion.=20 It has absolutely nothing to do with abortion. We have explicitly = exempted=20 abortion in this bill. Yet opponents still try to argue this point.=20

Our statute could be no more clear on this point. = Senator=20 Feinstein uses identical language to exempt abortion or any = related=20 activity in her amendment. This bill simply doesn't affect abortion = rights=20 whatsoever. The language could not be clearer. I invite my colleagues to = pick up=20 the bill and look at the section. It exempts any reference to abortion, = anything=20 a mother would do to her own child, anything a doctor would do is = exempted. It=20 has nothing to do with abortion, not at all. That is not what this is = about.=20

Point No. 1, this bill recognizes a second victim; = the=20 Feinstein amendment does not. If you believe there is a second victim, = you=20 cannot vote for the Feinstein amendment. It denies there is a second = victim.=20

The second point I want to make will come as a = surprise, I=20 think, to the Members of the Senate. It will come as a surprise to you = until you=20 pick up the Feinstein amendment and read it carefully. I invite you to = do that.=20 Pick up the amendment and read it carefully.=20

First, the Feinstein amendment does not punish the = criminal=20 for harming or injuring the baby. Let me read it. It only punishes the = criminal=20 for ``interrupting or terminating a pregnancy.'' That is the language,=20 ``interrupting or terminating a pregnancy.'' But not for injuring. So if = a child=20 is injured, not killed, the pregnancy not terminated, the Feinstein = amendment=20 will not cover it. That, to me, is a problem. That is a fatal fallacy, = fatal=20 problem.=20

Here is the language:=20

Any person who engages in conduct that violates any = of the=20 provisions of law listed in subsection (b) and thereby causes the = termination of=20 a pregnancy or the interruption of the normal course of pregnancy, = including=20 termination of the pregnancy other than by live birth is guilty of a = separate=20 offense under this section.=20

It does not cover the injury of a fetus. That is a = problem.=20

Let's turn to the penalty section. The penalty = section=20

is fatally flawed. The penalty section won't work. = The=20 Justice Department has sent a letter and, in their opinion, the penalty = section=20 provides no penalty, under the Feinstein amendment, for the killing of = the=20 fetus. It is vague; it is unclear at best. It defines additional crimes = as the=20 interruption or termination of a pregnancy. When it describes the = punishment, it=20 refers to injury or death. Whose injury or death are we talking about = here? Is=20 it the unborn child? Whose injury?=20

The Feinstein amendment doesn't recognize that the=20 interruption and termination of the pregnancy means the injury or death = of the=20 fetus because it won't acknowledge the fetus, of course, as a separate = being.=20

The amendment is circular and really without = meaning. Put=20 simply, there is no additional punishment because under this amendment = there is=20 no additional victim. The Feinstein amendment goes out of its way not to = recognize another victim. What is the reference to? Let me read this = section=20 and, again, this is a technical reading, but that is how you have to = read a=20 criminal section. This is how judges have to do it. The bottom line = is--I am=20 going to say it again and again--if you vote for Feinstein, there will = be no=20 penalty at all for the killing of a second victim, the child. There = clearly is=20 none for the injury of that child. Let me read the penalty section, = 2(a), under=20 the Feinstein amendment:=20

Except as otherwise provided in this paragraph, the = punishment for that separate offense is the same as the punishment = provided for=20 that conduct under Federal law had that injury or death occurred to the = pregnant=20 woman.=20

What injury or death are we talking about? To whom? =

The language doesn't acknowledge injury or death to = the=20 fetus. Who is it referencing in the previous paragraph? It clearly is = fatally=20 flawed. It is difficult for me to read this and for people to understand = it. But=20 to get the section out, it clearly doesn't work and is fatally flawed. = So this=20 does not recognize the death, does not recognize any punishment. It = would not=20 provide punishment and it clearly presents a problem.=20

My friend from California has said the DeWine bill = would=20 have no effect on the Laci Peterson case. That is true; it would not.=20 Fortunately, California has a similar law that provides for a second = victim, the=20 punishment for the death of that child. While it is true the DeWine bill = would=20 have no effect on the Laci Peterson case, the fact is if the Feinstein=20 amendment, or a similar amendment to the Feinstein amendment, had been = approved=20 by the California legislature at the time their law was being = considered, there=20 would be no punishment for the death of baby Conner Peterson. There = would have=20 been in California no recognition for that second victim. There would = have been=20 no recognition of the death of that second victim.=20

If the Feinstein amendment would have passed, or a = version=20 of it, in California, if the California legislature would have done what = Senator=20 Feinstein is asking us to do today in this Federal legislation, = they=20 would not have been able to prosecute for the death of Conner Peterson.=20

They would not have been able to recognize that = death as a=20 second victim death. That is the fundamental fact, and that is the = fundamental=20 difference between the DeWine bill and the Feinstein amendment.=20

We have heard a lot of talk about motives and = agendas. I=20 think we should stop doing that, and I think we should look to the = victims and=20 hear from the victims. There are three victims. The families of the = victims were=20 here yesterday. When one talks with the victims, it is clear the victims = believe=20 there are two victims. Let me talk about several cases. They are tragic = cases=20 and are difficult to listen to, but I think it brings home what we are = really=20 talking about.=20

Let me talk about the example of Airman Gregory = Robbins.=20 This is a case about which I have talked many times on the Senate floor, = but I=20 think is worth repeating today because it illustrates the injustice that = exists=20 today in our Federal law.=20

In 1996, Airman Robbins and his family were = stationed in my=20 home State of Ohio at Wright-Patterson Air Force Base in Dayton. At that = time,=20 Mrs. Robbins was more than 8 months pregnant with their daughter they = named=20 Jasmine. On September 12, 1996, in a fit of rage, Airman Robbins wrapped = his=20 fist in a T-shirt and savagely beat his wife by striking her repeatedly = about=20 the head and stomach. Fortunately, Mrs. Robbins survived this violent = assault,=20 but tragically, her uterus ruptured during the attack, expelling the = baby into=20 her abdominal cavity, causing Jasmine's death.=20

Does anyone truly think Jasmine was not a victim? I = think=20 we know she was. Not only was her mom a victim, but she was as well.=20

Let me give another example. In August 1999, = Shiwona Pace=20 of Little Rock, AR, was days away from giving birth. She was = understandably=20 thrilled about her pregnancy. Her boyfriend, Eric Bullock, however, did = not=20 share her joy and enthusiasm. In fact, Eric wanted the baby to die. So = he hired=20 three thugs to beat his girlfriend so badly that she lost the unborn = baby whom=20 she named Heaven. I might add, she lost that baby 1 day shy of her = predicted=20 delivery date. Shiwona testified at a Senate judiciary hearing we held = in=20 Washington on February 23, 2000. This is what she said:=20

I begged and pleaded for the life of my unborn = child, but=20 they showed me no mercy. In fact, one of them told me, ``Your baby is = dying=20 tonight.'' I was choked, hit in the face with a gun, slapped, punched, = and=20 kicked repeatedly in the stomach. One of them even put a gun in my mouth = and=20 threatened to shoot.=20

Do we really believe Shiwona was the only victim = here? Do=20 we really think=20

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we should adopt an amendment = that says she was=20 the only victim? I don't think so. How can we suggest to Shiwona that = her child=20 was not murdered? Should we twist the law so we don't recognize that? I = don't=20 think we should. And Federal law, quite frankly, must recognize this = wrong for=20 what it is. It is a wrong against two separate and distinct victims.=20

Another example: I can think of no better way to = tell the=20 story of Baby Zachariah and his mother Tracy Marciniak than by simply = reading=20 from her testimony before the House Judiciary Subcommittee on the = Constitution=20 which occurred on July 8, 2003. Let me read it:=20

I carried Zachariah in my womb for almost nine full = months.=20 He was killed in my womb, only 5 days from his delivery date. The first = time I=20 ever held him in my arms, he was already dead.=20

There is no way that I can really tell you about = the pain I=20 feel when I visit my son's grave site in Milwaukee, and at other times, = thinking=20 of all that we missed together. But that pain was greater because the = man who=20 killed Zachariah got away with murder.=20

Zachariah's delivery date was to be February 13, = 1992. But=20 on the night of February 8, my own husband brutally attacked me at my = home in=20 Milwaukee. He held me against a couch by my hair. He knew that I very = much=20 wanted my son. He punched me very hard twice in the abdomen. Then he = refused to=20 call for help, and prevented me from calling.=20

After about 15 minutes of my screaming in pain that = I=20 needed help, he finally went to a bar and from there called for help. = Zachariah=20 and I were rushed by ambulance to the hospital, where Zachariah was = delivered by=20 emergency Caesarean section. My son was dead. The physicians said he had = bled to=20 death inside me because of blunt force trauma.=20

My own injuries were life-threatening. I nearly = died. I=20 spent 3 weeks in the hospital. During the time I was struggling to = survive, the=20 legal authorities came and they spoke to my sister. They told her = something that=20 she found incredible. They told her that in the eyes of Wisconsin law, = nobody=20 had died on the night of February 8. Later, this information was passed = on to=20 me. I was told in the eyes of the law, no murder had occurred. I was = devastated.=20

We surviving family members of unborn victims of = violence=20 are not asking for revenge. We are begging for justice--justice like we = were=20 brought up to believe in and trust in. Justice means that the penalty = must fit=20 the crime, but that is only part of it--justice also requires that the = law must=20 recognize the true nature of a crime.=20

The true nature of a crime, Mr. President.=20

I know that some lawmakers and some groups insist = there is=20 no such thing as an unborn victim, and that crimes like this only have a = single=20 victim--but that is callous and that is wrong. Please don't tell me that = my son=20 was not a real victim of a real crime. We were both victims, but only I=20 survived.=20

I will have more to say about this in a few = minutes. At=20 this point, I yield the floor.=20

The PRESIDING OFFICER. The Senator from California. =

Mrs. FEINSTEIN. Mr. President, may I briefly = suggest the=20 absence of a quorum.=20

The PRESIDING OFFICER. The clerk will call the = roll.=20

The legislative clerk proceeded to call the roll.=20

Mrs. FEINSTEIN. Mr. President, I ask unanimous = consent that=20 the order for the quorum call be rescinded.=20

The PRESIDING OFFICER. Without objection, it is so = ordered.=20

Mrs. FEINSTEIN. I thank the Chair.=20

Mr. President, I wish to respond to some of the = concerns=20 and complaints of the distinguished Senator from Ohio about our = substitute=20 amendment. Let me take on his allegation that this substitute does not = provide a=20 punishment for harming a child. In fact, it does. It clearly states that = the=20 interruption of the normal course of the pregnancy relates to injury to = the=20 fetus. So there is a penalty for harm.=20

Secondly, he stated my amendment would not provide = any=20 penalty for ending a pregnancy; that it was a legal fiction in that = sense.=20

I think this is clearly a misunderstanding of the = plain=20 text of our amendment. We explicitly create a separate offense for = interrupting=20 or ending a pregnancy, and we explicitly state the penalty for that = offense is=20 the same as if the crime had resulted in the injury or death of a = mother. That=20 is explicit.=20

So the intent is clear. I think quibbling about = whether the=20 language is perfect, the amendment does exactly what the underlying bill = does. I=20 could have cleared that up with a modification, but the Senator would = not let me=20 send a modification to the desk, which in terms of just sheer = congeniality is=20 rather surprising because that could have been made crystal clear to = everyone.=20

So I firmly believe our amendment does exactly the = same=20 thing as the DeWine amendment, but it does not do something his = amendment does,=20 and that is create life at the point of conception. His use of the words = ``child=20 in utero'' as opposed to the California statute's use of the words ``or = fetus''=20 make a huge difference in the law legally. Once again, I think that is = clear.=20

The bottom line is we believe the intent and the = crafting=20 of this bill is very clear. We do not create a child in utero. We try to = avoid=20 getting to the point where life is defined.=20

We say that if the pregnancy is intentionally = terminated=20 and specific damages are done to the fetus, it is punished either = through=20 manslaughter in a second charge or murder in a second charge. I think = the=20 language is very clear. I think it is nitpicking to say it is not.=20

I can change it, but I am not allowed to change it. = We have=20 the modification, but we are not allowed to send the modification to the = desk. I=20 believe Members can vote on this amendment and know clearly they are = assessing=20 the same penalties for the same crimes as the underlying bill does. The = only=20 difference is we do not decide in our bill when life begins.=20

Let me read a couple of editorials and statements = that have=20 come out in recent days. There is one editorial this morning in the Los = Angeles=20 Times. I would like just quickly to read one paragraph:=20

The Senate is likely to vote today on a bill = intended=20 largely to score points in the endless, wearying abortion debate. The = proposed=20 Unborn Victims of Violence Act defines a child in utero as a member of = the=20 species homo sapiens, at any stage of development, who is carried in the = womb.=20 In other words, the child exists at the moment of conception. The House = passed=20 similar legislation last month. As with nearly every aspect of the = abortion=20 debate, Americans are deeply divided over when human life begins. = However courts=20 in most States generally accord more rights to a fetus considered viable = outside=20 the womb. DeWine's bill, S. 1019, offers a sweeping declaration that = ignores=20 prevailing scientific views and the national legal consensus. True, his = bill=20 specifically bars prosecution for abortion, but its effect, as DeWine = intends,=20 would be to give one side a new legal bullet in the broader abortion = wars.=20

That is clear. I will go on. The Los Angeles Times = is not=20 the only editorial page that believes that. I indicated earlier this is = true of=20 an editorial in the Philadelphia Inquirer:=20

It is so easy to see how a federal unborn victims = law,=20 coupled with unborn victims' laws in 29 States, will form the basis of a = new=20 legal challenge to Roe v. Wade, a landmark case that gives women the = right to=20 terminate certain pregnancies. If a fetus who dies during a crime is a = murder=20 victim, why, then, isn't abortion murder?=20

From the Buffalo News:=20

Passage by House Republicans of a bill that treats = an=20 attack on a pregnant woman as separate crimes against her and her unborn = child=20 is at heart an attempt to erode abortion rights. It's a disingenuous and = misguided bill and the Senate should make sure it goes no further.=20

That is the Buffalo News.=20

The New York Times, April 25. This is 2001.=20

Packaged as a crime fighting measure unrelated to = abortion,=20 the bill is actually aimed at fulfilling a long-time goal of the = right-to-life=20 movement. The goal is to enshrine in law the concept of fetal rights = equal to=20 but separate and distinct from the rights of pregnant women.=20

Another editorial of the New York Times:=20

The bill would add to the Federal Criminal Code a = separate=20 new offense to punish individuals who injure or cause death to a child = who is in=20 utero.=20

The Washington Post, October 2, 1999,=20

What makes this bill a bad idea is the very aspect = of it=20 that makes it attractive to its supporters, that it treats the fetus as = a person=20 separate from the mother though that same mother has a constitutional = right to=20 terminate her pregnancy. This is useful rhetorically for the pro-life = world, but=20 it is analytically incoherent.=20

The Blethen, ME, newspaper:=20

First considered in 1999, the bill purports to = create new=20 Federal crimes for the intentional harm or death of a fetus or unborn = child.=20 But, no matter how much supporters deny it, the bill's real intent is to = undermine women's reproductive choices. If the bill is passed and signed = into=20 law, it would weaken=20

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the prudent and pragmatic = decision handed down=20 in Roe v. Wade.=20

In my remarks, I have tried to show that this is a=20 concerted effort. It need not be so. You can attach the same penalties = for the=20 same crimes, as our substitute does, without getting into the debate of = where=20 life begins. This bill chooses to get into the debate of where life = begins and=20 it defines life beginning at conception. It does so in a Federal = criminal=20 statute. It is one step in the building blocks of statutes that will = constitute=20 the ability to demolish Roe v. Wade.=20

I think every Member of this body who is pro-choice = should=20 vote against the underlying bill and for this amendment because in this=20 amendment, without creating the separate person at conception, we = establish the=20 penalties for interruption or termination of a pregnancy. Those = penalties are=20 the same--same for murder, same for manslaughter, same for attempted = murder,=20 same for attempted manslaughter.=20

Again, I point out that in California what the = State did 34=20 years ago was essentially amend the murder statute. By amending the = definition=20 in the Penal Code section 187, they provided a new definition of murder = which=20 said:=20

Murder is the unlawful killing of a human being, or = a fetus=20 with malice aforethought.=20

That is the bill under which the Laci Peterson case = will be=20 brought to court. It is a different idea because it clearly says that it = is a=20 fetus.=20

Additionally, there is information from those who = wish to=20 continue this pursuit to make a fetus a human life, to make an embryo a = human=20 life, that this is a concerted strategy aimed at weakening Roe v. Wade.=20

What we have tried to do is mimic the House bill = with=20 respect to the penalties but connect it to the termination of a = pregnancy and=20 thereby avoid the distinction of exactly when life begins for the = purposes of=20 statute law, in this case criminal statute law, and therefore avoid the = problem.=20

I have indicated, from legal scholars, where they = believe=20 this will undermine prosecutions in this situation because they will = encourage=20 peremptory challenges of individuals who may have strong beliefs in = choice=20

and, therefore, not one likely to recognize that an = embryo,=20 or a day pregnancy, or a week pregnancy, or a month pregnancy is, in = fact, a=20 living being subject to criminal sanctions if their rights are violated. =

It is a complicated issue. But it is a significant = issue.=20 It is an important issue.=20

The more I look at it and see the strategy of the=20 anti-choice movement, the more I see that if you can establish a = beachhead of=20 rights in Federal criminal law here, and another statute there, and in a = third=20 statute somewhere else, you then begin the march to the Supreme Court in = an=20 attack on Roe. Roe sets up a trimester system giving the woman total = rights in=20 the first trimester, and then the State the right in the second and = third=20 trimester to intervene in certain cases, which has been the case in many = State=20 laws that have been passed. You now give the Supreme Court the ability = to begin=20 to say: ``It is in law that the embryo has certain rights'' and, = therefore,=20 forms the bulwark of the attack on Roe.=20

You also do something else insidious. I think you = very much=20 intervene in stem cell research. Stem cell research, and a good deal of = the most=20 auspicious of that research, deals with embryonic stem cells. If you = have a law=20 that says an embryo or a zygote is, in fact, a human life, then it is = murder if=20 you use that embryo for stem cell research, just as it becomes murder if = that=20 embryo is harmed or rejected in the course of an attack on a woman. We = avoid all=20 of that.=20

We simply say termination of a pregnancy, and = termination=20 of a pregnancy in the course of a criminal attack creates a second = charge, and=20 that second charge carries with it the same penalty as the original = charge=20 against the woman herself would carry.=20

That is the clear intent.=20

I regret that the Senator would not allow me to = modify my=20 amendment. I can never in 12 years remember any Senator being refused = the right=20 to modify an amendment, but perhaps we are playing by new rules these = days. I=20 know what goes around comes around in this body. I regret that.=20

But I believe on its face our substitute amendment = is=20 clear, it is definitive, it will stand the test of time, and it will = prevent=20 what we hope to prevent, which is the first major law which decides when = life=20 begins.=20

I yield the floor and reserve the remainder of my = time.=20

The PRESIDING OFFICER (Ms. MURKOWSKI). The = Senator=20 from Ohio.=20

Mr. DeWINE. Madam President, once again, I = want to=20 bring this debate back to its essence. I am afraid so much of the debate = from=20 the other side has been about motives--by quoting, with all due respect, = the=20 L.A. Times about peripheral issues.=20

Our intent, if you want to go by intent, is very = simple.=20 Our intent is to bring about justice for the victims of crime. Our = intent is to=20 bring about justice for the mother and for the child--for the unborn = child as=20 well as the mother. It is to conform with what the vast majority of the = American=20 people believe; that is, when a pregnant woman is assaulted and she = either loses=20 that child or that child is injured, there are, in fact, two victims. It = is as=20 simple as that.=20

On the abortion issue, let us be done with this = once and=20 for all. This bill has nothing to do with abortion. The language could = not be=20 simpler.=20

Let me read to the Members of the Senate and invite = anybody=20 to read it.=20

Nothing in this section shall be construed to = permit the=20 prosecution of any person with conduct relating to abortion for which = consent of=20 the pregnant woman or a person authorized by law to act on her behalf = has been=20 obtained or for which such consent is implied by law.=20

Two, of any person for medical treatment of the = pregnant=20 woman or her unborn child, or of any woman with respect to her unborn = child.=20

It is very clear. My colleague argues that this = language is=20 going to somehow roll back abortion rights. That is a debate for another = day. It=20 is not a debate for today. That language in this bill is very clear.=20

If this language was a threat to abortion rights, = then the=20 language in 29 other States would have been a threat. We have 29 States = that=20 recognize fetal homicide law. The language in 16 of those States is = virtually=20 identical to the language in this bill.=20

If the language in this bill was a problem for = abortion=20 rights, then it would have been a problem with these other States.=20

Also, there are some States that have had this = language on=20 the books for 30 years, and it has not been a problem for abortion = rights.=20

That is just a bogus issue. Let us stop talking = about it,=20 and let us talk about what the issues are.=20

Let me get back to the two points that I made = before. I=20 want everyone to understand the Feinstein amendment. One is not in = debate, and=20 one my colleague and I do debate. One I think is not in debate at all; = that is,=20 the Feinstein amendment does not recognize a second victim. It goes = against good=20 common sense.=20

Ask someone back in your home State, if a pregnant = woman is=20 assaulted and she loses her child, how many victims are there? There are = two. If=20 you ask the average person in your State--whether your State is Ohio,=20 California, wherever it is--the average person on the street is going to = say:=20 Senator, there are two victims.=20

That is all we are saying with this bill. We are = trying to=20 close a loophole so that if a pregnant woman who is hiking in a national = park or=20 is out walking in a national park or a pregnant woman on an Air Force = Base--we=20 are not making these stories up. This happens. Pregnant women are = attacked all=20 the time. I saw it as a county prosecutor. You ask any county = prosecutor--yes,=20 any police officer, anybody who is a victims rights advocate--how often = pregnant=20 women are attacked, a pregnant woman who is in a national park, a = pregnant woman=20 who is on Federal property and is attacked. What we are simply saying is = that it=20 is wrong if a national park or Federal property is in a State that does = not have=20 a similar law to this. It is wrong for that Federal prosecutor searching = in vain=20 the Federal statutes to find a law for which he can charge that person = with the=20 death of a fetus, a child--whatever word you want to use. It is wrong. = That=20 happens today. We are closing that loophole.=20

When this law passes, that won't happen anymore. A = Federal=20 prosecutor will be able to say, when law enforcement people come in and = they=20 have that case where a woman has been violently attacked, she has been = injured=20 but the=20

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child has been killed, they = will be able to=20 charge for death of that child. That is the right thing to do. They will = be able=20 to file two charges, recognize two victims, and recognize that reality. = That is=20 what this does.=20

Let me state the second thing about the Feinstein=20 amendment. Look at the amendment.=20

We have to go to the penalty section. This is the = Feinstein=20 amendment.=20

Remember, this is a criminal law. I go back to my = days as a=20 prosecutor: You have to construe a law strictly. When it is a criminal = law, you=20 construe it in favor of the defendant. You give every benefit of the = doubt to=20 the defendant. If this is vague, there is a problem for the prosecutor. = We have=20 a problem with this one. A serious problem.=20

We have a letter from the Justice Department that = says=20 there is no penalty under the Feinstein amendment. Let's look at this = carefully=20 and see why: ``Except as otherwise provided in this paragraph, the = punishment=20 for that separate offense is the same as that punishment provided for = that=20 conduct under Federal law had that injury or death occurred to the = pregnant=20 woman.''=20

What injury or death? The problem under the = Feinstein=20 amendment is it does not recognize the baby or fetus. Who are we talking = about?=20 Read this section above. It talks about ``termination of a pregnancy or = the=20 interruption of the normal course of pregnancy.'' It does not recognize = two=20 assaults, two injuries, two people. There is nothing for it to reference = to.=20 With all due respect, it is not drafted right. If we pass the Feinstein=20 amendment, with all due respect, not only are you not recognizing a = separate=20 victim--which we all agree on--but, worse than that, there is no penalty = for=20 killing the unborn; there is no penalty for injury.=20

I have already pointed out, and we looked at the = language,=20 why there is no penalty at all for injury. That is clear when we look at = this:=20 ``causes the termination of a pregnancy or the interruption of the = normal course=20 of pregnancy, including termination of the pregnancy other than by live = birth,''=20 et cetera.=20

Clearly, that is no reference to the injury. What = word here=20 has to do with injury? Nothing. Clearly, this has nothing to do with = injury. Any=20 child who is injured, not killed, would not be covered. And in the = paragraph=20 below, there is no penalty at all.=20

If we get by that, which we cannot, but even if you = get by=20 all of that, you have the problem of the lesser included offense. We = cannot get=20 by that. But take one more problem, assuming you could get by that. = There is=20 another reason the Feinstein amendment fails to create a separate = punishable=20 offense to terminating pregnancy. All it does is recognize attacks on an = unborn=20 child under the label of ``interruption or termination of pregnancy,'' = then=20 tacks that label on as an element to any one of the 68 Federal crimes = specified.=20 The result is a new series of offenses identical to the previous 68, = except for=20 the addition of that one element.=20

For example, now a criminal could face a Federal = charge of=20 assault with the result of termination of pregnancy as well as the = original=20 charge of assault. This is important. But because he could be charged = with both=20 does not mean he could be convicted and punished for both. Instead, he = would be=20 protected by a legal principle known to lawyers as lesser included = offenses.=20 That principle protects a defendant from being convicted in and punished = for a=20 whole series of crimes that are all a subset of a lesser crime.=20

We know, for example, the crime of manslaughter and = murder.=20 We know one defendant cannot be convicted of both charges for the death = of only=20 one victim. If someone is guilty of murder, then he or she must have = been guilty=20 of all the components of murder, including the components that=20

made him guilty of manslaughter, but that person, = of=20 course, is not convicted of both. You cannot be convicted of both = manslaughter=20 and murder. If a man is convicted of a felony for stealing $10,000, he = is not=20 also found guilty of the misdemeanor of having stolen $500.=20

Of course, we can convict one criminal of the = murder and=20 manslaughter of two separate people because the laws of these crimes = differ on=20 one critical point: They have different victims. That is the difference = between=20 our bill and Senator Feinstein's amendment. Ours does not have = that=20 problem because we recognize two victims. Her amendment does not. = Therefore, it=20 is fatally flawed under this principle. Therein lies another problem.=20

The bottom line is the Feinstein amendment is = fatally=20 flawed. It has no penalty section, as well as not recognizing there is a = separate and distinct victim.=20

The Justice Department analyzed and came to the = same=20 conclusion. Again, it is a vague amendment. They come at it a little=20 differently, but here is what they say in a letter of March 24:=20

Additionally, by omitting any reference to the = unborn child=20 but retaining language contained in H.R. 1997 as introduced, the = substitute=20 appears to create an ambiguity that likely leaves an offense, could one = be=20 found, without a corresponding penalty. The substitute provides that = punishment=20 for an offense prescribed by the legislation is the same as the = punishment=20 provided under Federal law had the ``injury or deaths occurred,'' to the = pregnant woman.=20

In H.R. 1997, the object of the ``injury or death'' = was the=20 unborn child. However, in the substitute the injury or death provision = has no=20 object because the only victim under the substitute is the woman = herself.=20 Because there are currently no penalties in federal law for the offenses = of=20 ``termination of a pregnancy,'' or ``the interruption of the normal = course of=20 pregnancy,'' there would be no penalty even assuming that a successful=20 prosecution could be brought.=20

They have analyzed it a little differently than I = did, but=20 they come to the identical conclusion for the same reason. Again, it = goes back=20 to this sentence in their letter, ``However, in the substitute, the = injury or=20 death provision has no object because the only victim under the = substitute is=20 the woman herself.''=20

That is the problem. That is what we have.=20

Members who come to the Senate and vote on this = Feinstein=20 amendment, which is the key vote, need to understand three things: One, = abortion=20 has nothing to do with this debate. We have covered that in the language = of the=20 bill. But more important is the precedent in the States has already been = set.=20 States have bills like this. They have not interrupted people's rights = under the=20 Supreme Court in regard to Roe v. Wade and all the other court = decisions. It has=20 not interrupted rights having to do with abortion. It has nothing to do = with=20 abortion. That is No. 1.=20

No. 2, the Feinstein amendment fails to recognize = what=20 everybody in this country knows: When a woman is attacked, there are two = victims.=20

And No. 3, the thing to remember is the Feinstein = amendment=20 carries no penalty. So we will be saying if the Feinstein amendment is = passed,=20 we are turning our backs on these victims. We are turning our backs on = the=20 unborn, these kids who are, in fact, injured or killed.=20

I yield the floor.=20

Mr. TALENT addressed the Chair.=20

The PRESIDING OFFICER. Who yields time?=20

Mr. DeWINE. Madam President, I yield to my = colleague.=20

Mr. TALENT. Two or three minutes?=20

Mr. DeWINE. Yes.=20

The PRESIDING OFFICER. The Senator from Missouri.=20

Mr. TALENT. Madam President, I very much appreciate = the=20 Senator yielding and also the courtesy of the Senator from South = Carolina who, I=20 know, was expecting to go next. For that reason, I am going to be very = brief.=20

I want to say a few words about what I understand = us to be=20 doing today and the importance of it. As I understand it, what we are = doing=20 today is conforming Federal law to the common understanding of people = around the=20 country, and certainly in the heartland where Missouri is and, indeed, = the=20 practice of most of the States.=20

If a man takes a woman across State lines--let's = say she is=20 his girlfriend, and she has gotten pregnant, and he does not like that = fact--and=20 he assaults her, hits her in the stomach or something, with the = intention of=20 getting rid of the baby, and his act of violence has the intended effect = and the=20 baby dies, what we are saying is he has claimed=20

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two victims. He has hurt mom, = or maybe done=20 worse to her, and he has killed the baby, which is what his intention = was to do.=20

I think all of us recognize the seriousness of that = kind of=20 offense and acknowledge that an offense like that against a pregnant = woman, and=20 directed at the baby, is more serious because of the status of pregnancy = and=20 because of the existence of that child than it would otherwise be.=20

So far I think we are agreed. My friend, the = Senator from=20 California, wants to call that second offense the ``interruption'' of a=20 pregnancy rather than the claiming of the life of a child.=20

I appeal to the Senate, and to the country, through = the=20 Chair, and ask what our understanding is, what our instinctual reaction = is to=20 that kind of a crime.=20

When a woman loses a child in that kind of = instance, she=20 has not lost a pregnancy, she has lost a child.=20

Earlier in our marriage, my wife had several = miscarriages.=20 She did not think of it as losing a pregnancy. She lost children. That = is why=20 people have memorial services sometimes--often--in cases like that. That = is why=20 they go through a grieving process. That is why they may get counseling. =

I do not see why, with the greatest respect to the=20 substitute amendment and to the Senator from California, why we cannot = conform=20 Federal law to that common understanding. I think we should.=20

I understand the sensitivity on the issue of = abortion. I=20 really do. I think the Senator from Ohio and the Senator from South = Carolina=20 have tried to structure this bill to avoid those sensitivities. It is = hard to=20 do.=20

But just because--for overriding reasons of public = policy=20 that some here adhere to very strongly--we cannot recognize the status = of this=20 child when mom, for reasons that she thinks are justified, believes she = must end=20 the pregnancy, it seems to me, it does not mean we cannot accord the = child the=20 dignity of the status of a human being when the child has been the = victim of a=20 vicious act of violence against both mom and the child.=20

I thank my friend again for allowing me to = intervene for a=20 moment. I yield the floor.=20

Mr. DeWINE. Madam President, I yield to = the=20 Senator from South Carolina.=20

The PRESIDING OFFICER. The Senator from South = Carolina.=20

Mr. GRAHAM of South Carolina. Madam President, I = thank the=20 Senator for yielding. I may take a few minutes, I say to the Senator = from=20 Kansas, to explain my relationship to this bill and why I am here today. =

No. 1, I want to thank the leadership for allowing = the bill=20 to come to the floor. Senator Frist and Senator = McConnell and=20 our leadership team has worked hard with Senator Daschle to get = an=20 agreement so we could come to the floor and debate what I think is an = important=20 issue, and to allow Senator Feinstein to have her say about how = we=20 should craft this bill.=20

In July 1999, this bill was first introduced in the = House.=20 I was the author of the bill. Before I came to Congress, I spent some = time in=20 the Air Force. Senator DeWine has taken the cause up in the = Senate=20 since it was first introduced. I really appreciate all that Mike has = done. He=20 has been very sympathetic to what we are trying to do. He was leading = the charge=20 in the Senate as this bill was being debated and voted on in the House.=20

But prior to getting into politics, from 1982 to = 1988, I=20 served as a prosecutor and a defense attorney in the U.S. Air Force = domestically=20 and overseas. During that experience, I realized at the Federal level = there was=20 a gap in law.=20

We had a case involving a pregnant woman who was = beaten up,=20 and her child was lost, and she was almost killed. I looked into the = idea of=20 charging the offender with the damage done to the unborn child, and = under the=20 Uniform Code of Military Justice there was no way to do that. So I was = sensitive=20 to it from a prosecutor's point of view early on in my legal career.=20

When I got to Congress, there was an effort in some = States=20 to create unborn victims statutes, and I associated myself with that = effort=20 federally. A lot of pro-life people came over and were very supportive = of what=20 we are doing. That is true. Pro-life people generally like the idea of=20 protecting unborn children whenever they can.=20

Pro-choice people are very sensitive to the fact = that a=20 woman should decide what to do with her body in an intimate situation = like a=20 pregnancy. I understand that debate clearly.=20

I am a pro-life person, so I have biased there. But = having=20 said that, there are pro-life people who hate this bill. It surprised = me, but it=20 is true, because in the bill, we wrote it in a way that abortion is not = covered=20 at all. As a matter of fact, we preserve, under the current law--under = this=20 bill--the right to have a legal abortion, and you cannot prosecute the = mother=20 under any circumstances.=20

There are cases out there where mothers are being=20 prosecuted who abuse drugs and alcohol and do damage to their children. = What I=20 wanted to do was to focus on what I thought we all could agree on, to a = large=20 extent. The law in abortion and the politics of abortion really do not = play well=20 here because we are talking about criminal activity of a third party. I = do not=20 know why you would want to give a criminal any more breaks than you had = to if=20 they go around beating on pregnant women.=20

And people say: Well, don't they have to know if = the=20

woman is pregnant? No. Why? The law is really = common sense.=20 If you attack a woman of childbearing years, you do so at your own = peril. If you=20 push somebody, you do not know if they have a severe medical condition. = You are=20 liable for the consequences of your actions.=20

There are plenty of cases that say, if you attack a = woman=20 of childbearing years, you do not have to have actual knowledge. You are = responsible for the consequences of your illegal act.=20

In a poll, when people were asked, if a violent, = physical=20 attack on a pregnant woman leads to the death of her unborn child, do = you think=20 prosecutors should be able to charge the attacker with murder for = killing the=20 fetus, 79 percent said yes; 69 percent of pro-choice people, in that = poll, said=20 yes.=20

Why would a pro-choice person support this = legislation? It=20 passed three times in the House. The first time we had it up for a vote = was=20 September 30, 1999, I believe. Madam President, 254 folks voted for the = bill in=20 the House, as I recall. I assure everyone listening to my voice today, = there are=20 not 254 pro-life people in the House. Madam President, 52 Democrats have = voted=20 for this bill.=20

The parties tend to split on the issue of abortion, = with=20 the Democratic Party being more pro-choice and the Republican Party = being more=20 pro-life. But we had Democratic support, and we had pro-choice people = supporting=20 this idea that when it comes to criminal activity, we are going to = define the=20 unborn in terms that make it hard on the criminal--not hard on the = mother.=20

You can never prosecute a woman for anything she = does to=20 her child, no matter how much you would like to, under this bill. I did = not want=20 to get into that debate. You can never ever prosecute anybody for = receiving=20 medical treatment related to their pregnancy or lawful abortion.=20

For over 30 years, in the State of California, two = things=20 have coexisted: the Roe v. Wade rights of a woman and a statute that = will allow=20 you to do what is happening in California today--prosecute a person for = doing=20 damage to the mother and the unborn child, such as the Laci Peterson = case.=20

This has been a long journey. This July will be the = fifth=20 anniversary of the time that I introduced this bill. Back in 1999, I = remember=20 saying on the floor of the House there will be a case where a pregnant = woman is=20 brutalized and she loses her child and it will be front-page news.=20

The reason I said that then is, having been a = prosecutor=20 and a defense attorney, I understand the following: There are a lot of = good=20 people in this world, but there are some mean people, too. This happens = more=20 than you would ever want to believe. The No. 1 cause of death among = pregnant=20 women in the District of Columbia is murder. As much as we would like to = believe=20 otherwise, pregnant women have things come their way because of their = pregnancy=20 that shocks the conscience.=20

In Arkansas, there are three people sitting on = death row=20 today because they were hired by the boyfriend, who didn't want to pay = child=20 support, to kidnap his girlfriend, who wanted to=20

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have the child, took her off to = a remote area=20 and beat her within an inch of her life with the express purpose of = killing the=20 child. And when she was on the floor, she begged for two things: Her own = life=20 and her baby's life. Those people under Arkansas law were charged with = two=20 crimes, making them eligible for the death penalty. They deserve to be.=20

Under this bill, you cannot get the death penalty. = The=20 reason I chose not to include the death penalty is, I did not want to = get into=20 the death penalty debate because people of goodwill and good reasoning = may=20 disagree with the State imposing that punishment. The Senator from = California=20 cares as much about pregnant women as anybody here. This is not about = who cares=20 about women and who is trying to do this or that. Her amendment may not = be=20 written the way she would like. I would oppose it, if it was changed.=20

It happens in America more times than you would = ever=20 believe that pregnant women are the victim of violent assault and their = children=20 get killed or severely injured.=20

That concept can and does exist with the idea that = a woman,=20 early on in the pregnancy, can choose whether to carry that child. These = are two=20 concepts the law recognizes that exist side by side.=20

Why do 84 percent of the people believe a criminal = should=20 be prosecuted twice, not once? Because it really does violate common = decency. If=20 a woman chooses to have a baby and she loses her baby because of a = violent act,=20 most of us, a large percentage of us, want to whack the person who did = it as=20 hard as we can. And we don't want to get into the debate about abortion. = We want=20 to make sure the prosecutor has the tools to bring about the most severe = and=20 just verdict possible.=20

This bill excludes abortion. It excludes the death = penalty=20 for political reasons and legal reasons. Pro-life people have criticized = me=20 because in this bill, in their opinion, I am legalizing abortion. This = bill=20 doesn't legalize abortion. This bill doesn't ban abortion. This bill = says: If=20 you are a criminal and you attack a pregnant woman and you hurt her kid, = you=20 will get the full force of the law.=20

What is going on in California? In 1999, when I = said there=20 will be a woman out there who suffers brutally and loses her child and = we will=20 all know about it because it will be front page news, I never dreamed it = would=20 happen so quickly. I never dreamed it would be so vicious. The = authorities=20 investigating the Laci Peterson crime have two pieces of evidence to = offer the=20 jury: The decomposed body of the mother and the decomposed unborn child = late in=20 the pregnancy. It is important the jury know about both. It is important = the=20 criminal be held accountable for both. We=20

will debate abortion another day.=20

Sixteen States define life under the same legal = terms I=20 chose when we wrote this bill. That is as to the criminal world, if the=20 pregnancy comes to an end and the unborn child's right to develop comes = to an=20 end because of third-party criminal activity, we are going to hold you = legally=20 responsible at the earliest onset of pregnancy. The Roe v. Wade standard = makes=20 no sense. Why give a criminal a benefit of the legitimate debate of = abortion?=20

Thirteen States define it in stages. California, I = think by=20 law, defines the unborn victim statute at the sixth week of pregnancy. = Some=20 States, one or two, have the term ``viability.'' There is a sliding = scale. But=20 the dominant way to define this in State law is the way we have chosen = to define=20 it in this bill. This chart illustrates how the States break out.=20

There is another situation I would ask you to think = about.=20 Let's say there is a woman on death row. She is pregnant for whatever = reason.=20 How many people would let the execution go forward knowing the woman is=20 pregnant? Think about that. What good would it do to allow the execution = to go=20 forward if you knew the woman was pregnant? Would you wait?=20

Here is what I suggest to you, if any State or the = Federal=20 Government decided to impose the death penalty on a woman who was = pregnant=20 during any stage of the pregnancy, there would be a riot in the = street--among=20 pro-choice people, too, because what good would it do at any stage of = the=20 pregnancy to have the State kill the kid? You are not enhancing Roe v. = Wade. You=20 are not advancing the abortion debate. You are doing something you don't = need to=20 do.=20

The definition that was used in the Innocent Child=20 Protection Act of 2000, which I was involved in drafting, is the same = definition=20 that is in this bill about the unborn child. It passed 417 to nothing. = To me,=20 that makes perfect sense. Four hundred seventeen pro-life people do not = exist in=20 the House of Representatives. But when faced with the question, should = the State=20 wait if a woman is pregnant, even at the earliest stages of pregnancy, = 417=20 people said yes.=20

The reason I mention this to you is, when it comes = time to=20 prosecute people who unlawfully attack a woman at the earliest stage of=20 pregnancy, why should they get a pass? What good have you done? It does = not=20 change the abortion debate. Roe v. Wade rights still exist. All you have = done is=20 allow someone to interrupt another person's life, take something of = value, and=20 they get a pass because you are mixing concepts that don't need to be = mixed.=20 That is why over 50 pro-choice people voted for this bill in the House.=20

That is why if we ever get to final passage, we are = going=20 to have a bipartisan coming together of pro-life and pro-choice people = to say=20 one thing loud and clear: If you attack a woman of childbearing years = where=20 Federal law applies, you do so at your peril, and you are going to = suffer the=20 full consequences of your action. And the full consequences of that = action could=20 be the loss of the child and the loss of the mother or a combination = thereof.=20

Why not sentence enhancement? I think there is a = reason=20 under the law that no State has gone down this road. Sentence = enhancement would=20 say the following: You get a stiffer penalty if the woman is pregnant, = but you=20 don't talk about the consequences in terms of the victim's life. That is = an=20 artificial distinction that I think denies justice.=20

This was a statement by Kent Willis, executive = director of=20 ACLU, and I disagree with this statement:=20

That baby was not a murder victim.=20

He was talking about the Laci Peterson case, the = son=20 Connor. I think Connor was a murder victim. The point I guess I am = trying to=20 make is that when people talk about what happens to them, the law, = wherever it=20 can, should address the full range of what really happened to them.=20

There is another case you don't know about because = it=20 didn't get nearly the publicity, but it is just as real. It is a good = example of=20 why we need this statute.=20

Michael Lenz and his wife were expecting their = first child.=20 She worked in the Federal Building in Oklahoma City. She was in the = midstages of=20 her pregnancy. She went to work early the day of the bombing to show an=20 ultrasound to her colleagues of their baby. That was going on at the = moment the=20 bomb goes off. She was killed. Michael Lenz III was killed. They had = already=20 named their little baby boy.=20

The father came before my committee when I was in = the House=20 to testify for this bill. He said: I am no expert on abortion, but here = is what=20 happened to my family. My wife was killed, and at the same moment I lost = my son,=20 Michael Lenz III.=20

The reason they lost their son is not because of = Roe v.=20 Wade rights; it was because of a third party crazy man, a criminal, who=20 destroyed many lives that day. When you look at the victims of the = Oklahoma City=20 bombing case, when it came time in Federal court, you don't find a place = for=20 Michael Lenz III. If this bill had been law, there would have been 22 = people,=20 not 21 people, that would have been before the court. I cannot say it = any better=20 than that.=20

In terms of Michael Lenz and all the other victims = who=20 testified in support of this legislation, sentence enhancement doesn't = speak to=20 what happened to them. From a prosecutor's point of view, it makes all = the=20 difference in the world to have two charges facing the accused versus = one. It=20 gives you more leverage than you could ever dream of. Ladies and = gentlemen, in=20 cases like this, it is the right thing to do.=20

I yield the floor.=20

The PRESIDING OFFICER. The Senator from California = is=20 recognized.=20

Mrs. FEINSTEIN. Madam President, I yield as much = time as=20 she requires to the Senator from California, Mrs. Boxer. She = was here a=20 moment ago.=20

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Mr. DeWINE. Madam President, I inquire of = the=20 Chair, how much time does each side have remaining?=20

The PRESIDING OFFICER. The Senator from Ohio has 58 = minutes. The Senator from California has 62 minutes.=20

Mr. DeWINE. Sixty-two?=20

The PRESIDING OFFICER. Right.=20

Mr. DeWINE. Thank you. Madam President, I = yield to=20 the Senator from Pennsylvania 5 minutes.=20

Mr. SANTORUM. Madam President, I thank the Senator = from=20 Ohio. If Senator Feinstein's speaker arrives, I will be happy = to=20 abbreviate my remarks to accommodate the other side of the aisle.=20

I wanted to congratulate Senator DeWine = and=20 Senator Graham, who have really worked hard not just on this=20 legislation, but getting this legislation to a point where we can have = an=20 up-or-down vote, have a vote on the amendments, and let the Senate work = its=20 will. That is one of the things we have not seen done in recent weeks. = We have=20 had an opportunity here on a very important issue to have the Senate's = will be=20 done. I also congratulate Senator Frist and Senator = McConnell=20 and the Democratic leaders for allowing us to debate this issue. This is = an=20 important debate.=20

I think Senator Graham, who I had the = privilege of=20 listening to for a few moments, summarized it very well. The issue is, = how many=20 victims are there? Do we recognize the loss of a child in the womb, a = child who=20 is anticipated, is wanted, and whose life is very real to the mother and = father=20 and the family? When that life is taken away by a third party, do we = recognize=20 that child's existence in the law?=20

I don't think anyone would doubt that when a woman = who has=20 a child in the womb is attacked and injury comes to that child, another = person=20 is affected. If the child dies, that child is affected. There is = something that=20 goes on to another human being. The issue here is whether we are going = to=20 recognize that in the law. I agree with the Senator from South Carolina = that it=20 has nothing to do with abortion. It is specifically excluded from this=20 legislation. So why do all of the abortion rights activists have a = problem with=20 this legislation?=20

It comes down to the very issue, do we recognize = the=20 humanity of a child in womb? How far would we go to protect this right = to an=20 abortion? Do we go so far as to even deny the existence of a child who = is not=20 subject to abortion? How far do we go to protect this right, the supreme = right=20 above all, the right to an abortion, a right that can have no = restriction on it?=20 In fact, it cannot even have a restriction that is not at all applicable = to it.=20 So, in other words, we cannot even talk about this, or some way, through = some=20 logic, attack the issue. We have to deny under every circumstance that = the child=20 in the womb is a human life. That is what this is about.=20

This is all about denying the humanity of the = child. We=20 just cannot contemplate that in our laws. We cannot have any admission = anywhere=20 in law that says what is inside the woman's womb is a child--when, of = course, we=20 all know that is exactly what it is. But we cannot express that legally. = If we=20 do, somehow or another, this right to abortion may be threatened down = the road.=20 Who cares about what harm we may bring? Who cares about what harm we may = bring=20 to a mother whose child is injured or what harm we may bring to the = family who=20 may lose or have an injury to a child in womb? Who cares that we cannot = bring=20 somebody who has done violence to a child in the womb to justice? All of = those=20 things are worth ignoring to protect this right that is not even at = stake today.=20

This issue, as I have said many times, is a cancer. = I=20 thought at first it was a cancer that ate away at us in how we view the=20 relationship between the mother and the child, but it is worse. It is a = cancer=20 that reaches in and infects even areas that have nothing to do with = abortion.=20

We need to let common sense reign in the Senate = today. The=20 common sense is, this is a child who is loved and wanted by the mother. = This is=20 a child who, in many cases, has been given a name, such as Conner = Peterson, and=20 this is a child who deserves the dignity of recognition by our society.=20

The PRESIDING OFFICER. The Senator has used 5 = minutes.=20

Mr. SANTORUM. Madam President, I yield the floor.=20

The PRESIDING OFFICER. Who yields time?=20

Mr. DeWINE. I yield to the Senator from = Utah.=20

The PRESIDING OFFICER. The Senator from Utah.=20

Mr. HATCH. Madam President, I appreciate my = colleague from=20 California permitting me to go before her.=20

I rise today to urge my colleagues to vote in favor = of the=20 Unborn Victims of Violence Act. The importance of this issue has been = made=20 tragically clear by the grisly murders of Laci Peterson and her unborn = son=20 Conner. I met with her mother again yesterday and was very impressed = with her=20 and how she is handling this situation.=20

This bill will ensure Federal law appropriately = protects=20 unborn children from assault and murder. It has passed the House of=20 Representatives by a strong bipartisan vote of 254 to 163. I believe the = Senate=20 should give similar overwhelming approval.=20

Before I begin the substance of my remarks, I = commend=20 Senators DeWine and Lindsey Graham for their = longstanding and=20 essential leadership on this most important issue and for drafting the=20 legislation that is before us today. This issue has already been = addressed in=20 many States across the country. In fact, in my home State of Utah, if a = criminal=20 assaults or kills a woman who is pregnant and thereby causes death or = injury to=20 the unborn child, the criminal faces the possibility of being prosecuted = for=20 having taken or injured that unborn life. Twenty-eight additional States = have=20 similar laws on the books. Sixteen of those States recognize the unborn = child as=20 a victim throughout the entire period of prenatal development. This is = only=20 proper and, it seems to me, only just.=20

However, there is a gap in the law under existing = Federal=20 criminal statutes. Current Federal law provides for no additional = criminal=20 penalty when a criminal assaults or kills a woman who is pregnant and = thereby=20 causes death or injury to that unborn child. It is time Congress = eliminates this=20 unjustified gap in the law.=20

This bill bridges this existing gap, and it does so = in a=20 way that protects the rights of the States.=20

It creates a separate Federal offense to kill or = injure an=20 unborn child during the commission of certain already defined Federal = crimes=20 committed against the unborn child's mother.=20

Importantly, because this bill only applies to = Federal=20 crimes, it does not usurp jurisdiction over State law. If someone = commits a=20 crime that violates State law, but does not violate any Federal law, = then State=20 law will prevail, regardless of whether that State has laws that protect = unborn=20 victims of violence.=20

I cannot imagine why anyone would oppose this bill. =

Some have mistakenly characterized this bill as=20 anti-abortion. It is not, and I am not saying that because I am = pro-life.=20

Let me take this opportunity to clarify a remark I = made on=20 May 7 of last year. I am quoted as saying the bill undermines abortion = rights,=20 but that this effect is irrelevant. The point I was trying to make, and = I guess=20 I did not make it well and it has been quoted out of context many times, = is=20 there is no conflict between the bill language and Roe v. Wade. Some are = prepared to bring the abortion issue into anything, any time, for any = reason,=20 even when it does not fit, such as in this case.=20

I do not believe this bill in any way undermines = abortion=20 rights. It certainly does not.=20

The bill explicitly says the Federal Government = cannot=20 prosecute a pregnant woman for having an abortion. In fact, the bill = goes even=20 further. The bill does not permit prosecution against any woman with = respect to=20 her unborn child regardless of whether the mother acted legally or = illegally. If=20 a woman chooses not to have her baby, the bill says she can have an = abortion=20 without Federal prosecution. That is how far the authors of this bill = have gone.=20 But importantly, for those women who have chosen to keep their baby, = this bill=20 says no coldblooded murderer can take that choice away from her by = killing her=20 baby and going unpunished.=20

Those who oppose this bill are, in effect, saying = the=20 murderer, not the mother, has the choice to take the baby away from his = or her=20 mother=20

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against the mother's will and = against the=20 individual's will. Since the murderer will not be punished for this = terrible=20 offense, it exonerates his or her actions. That is simply not right.=20

I understand my dear friend Senator = Feinstein says=20 this bill somehow threatens stem cell research. It does no such thing. I = have=20 been a supporter of embryonic stem cell research, and everyone in this = body=20 knows it and I guess most scientists throughout the world know that. I = have been=20 proud to stand shoulder to shoulder with Senator Feinstein, = Senator=20 Specter, Senator Kennedy, and Senator Harkin = on stem=20 cell research. I believe we are right on that issue. But this bill in no = way=20 impedes stem cell research. This bill is about stopping and punishing = heinous=20 crimes.=20

Why would I support Laci and Conner's law if it = jeopardized=20 that research? The words ``stem cell research'' are nowhere in the bill. = This is=20 a criminal law, not an abortion law.=20

As I have said on many occasions, it is my view = life begins=20 in a mother's womb. What this bill does is penalize those who act to = viciously=20 end that life in the womb or any life in the womb.=20

Senator Feinstein, the distinguished = Senator from=20 California, suggested this bill somehow may result in assigning legal = status to=20 the term ``embryo.'' But I cannot find the term ``embryo'' anywhere in = the bill.=20 Nor for that matter can I find the term ``embryo'' in the amendment put = forth by=20 the distinguished Senator from California, Mrs. Feinstein.=20

In short, this bill does not affect abortion, = embryos, or,=20 for that matter, stem cell research. There is no legislative intent here = to=20 prosecute researchers working on stem cell research--none whatsoever.=20

I have the utmost respect for my dear friend from=20 California, and she knows that. We have worked together on many issues = during=20 her 12 years on the Judiciary Committee. I admire her and appreciate = working=20 with her on so many of these issues. I admire her judicious way in = fighting for=20 the issues in which she believes, even when we disagree. If her bill = truly=20 considered the same crime, I would give strong consideration to = supporting it.=20 But it does not. It tries to do it, but it does not.=20

The phrase ``interrupt a pregnancy'' is overly = vague and=20 will probably be struck down by the courts on that ground. Because of = this=20 vagueness, the courts may well interpret the Feinstein amendment as = providing no=20 additional penalty for a crime committed against a fetus.=20

Some will try to claim this weakens domestic = violence laws=20 by averting attention to the unborn. That is simply not true. I am a = strong=20 supporter of domestic violence laws and, along with Senator = Biden, was=20 the main writer of those bills. I believe domestic violence is an evil = plague=20 that needs to be stopped.=20

My commitment to this issue has been longstanding. = As many=20 of my colleagues are aware, I was an original cosponsor of the Violence = Against=20 Women Act over a decade ago, and I have tirelessly fought in countless = venues to=20 protect the rights of women. This bill furthers that cause.=20

For many years, I have worked hard on the issue of = domestic=20 violence and violence against women, and when I stand here today before = the=20 entire Senate and offer my support for a bill, I certainly make sure = that bill=20 does not diminish in any way our capacity to curb domestic violence and = protect=20 women.=20

The bill before us strengthens the rights of women = and=20 provides those who fight against domestic violence with another tool in = their=20 arsenal to go after abusers. This bill focuses attention on both a = pregnant=20 woman and her child. Before the Government could prosecute someone for = hurting=20 the unborn child, it would first need to prove the pregnant woman was = hurt. In=20 other words, the Government needs to prove 1 of 68 enumerated predicate = Federal=20 crimes against the mother before it could obtain a conviction under this = provision of this bill.=20

Moreover, this provision empowers abused women = because it=20 gives the Government a greater arsenal of prosecutorial tools to put the = abusive=20 spouse behind bars for a longer period of time. Many today will talk = about the=20 Peterson case. Suffice it to say that the public reaction to that case=20 underscores the widespread support for the changes that we are making = with H.R.=20 1997.=20

A news poll taken last April consisting of an = almost even=20 split of pro-life and pro-choice individuals indicated that 84 = percent--let me=20 repeat that, 84 percent--believed that Scott Peterson, who is currently = on trial=20 for the murder of his wife, should be charged with two counts of = homicide for=20 murdering his wife and unborn son.=20

California law permits criminals to be charged with = murder=20 for killing an unborn child when that child has developed past the = embryonic=20 stage. The tragic murder of an innocent unborn child is so shocking and = so=20 disturbing that regardless of any stance on abortion, the vast majority = of all=20 Americans strongly believe an unborn life taken in murder should result = in=20 murder charges brought against the perpetrator.=20

It is only fair and just to ask for our Federal = judicial=20 system to incorporate this strong desire of the vast majority of the = American=20 people on this issue.=20

I urge my colleagues to vote for H.R. 1997. I urge = my=20 colleagues to vote against amendments to H.R. 1997. Do it for Laci and = Conner=20 Peterson and for thousands of others in similar situations who have been = abused.=20 Do it for all women who have chosen to have their baby and are having = that=20 choice taken away from them by a cold-blooded murderer. Most of all, do = it=20 because it is the right thing to do.=20

I yield the floor.=20

The PRESIDING OFFICER (Mr. TALENT). The = Senator from=20 California.=20

Mrs. BOXER. Mr. President, I thank the Senator from = Utah=20 because he promised me he would keep within the 15 minutes so that I = could get=20 the floor at this time, and I appreciate his cooperation.=20

I also thank my colleague, the senior Senator from=20 California, Mrs. Feinstein, for her great leadership on this = issue. I=20 also have to express a little bit of dismay that she was not able to = modify her=20 amendment. It kind of gives one a clue that the people on the other side = have a=20 different agenda when they say they are not going to allow a colleague = they=20 respect and admire to send a modification to the desk.=20

So I thought I would want to place that on the = record=20 because we remember. These things we will remember because it is not = right to=20 not allow a colleague to modify an amendment that she has written. So = the next=20 time the other side wants to do it, we will have to think a bit. It is = just sad.=20 It is not the way the Senate should work.=20

Senator Feinstein has yielded me 10 = minutes of her=20 time, so if the Chair would tell me when I have used 9 minutes, I would=20 appreciate it.=20

The PRESIDING OFFICER. The Chair will so notify the = Senator.=20

Mrs. BOXER. I am very much in favor of enhanced = penalties=20 for those offenders, those criminals, who harm pregnant women. I think = Senator=20 Feinstein's substitute amendment is one that does exactly that. = What I=20 do not support are the efforts of some Members of this body who clearly = are the=20 leaders of the anti-choice movement in the=20

Senate. We have heard from them seriatim. They have = just=20 come right down and spoken. I do not support what they are trying to do, = which=20 is to undermine pro-choice laws, particularly Roe v. Wade.=20

Now, one can dress up a bill to make it look like = anything=20 one wants, but the so-called Unborn Victims of Violence Act, although = they try=20 to dress it up as a criminal statute designed to deter violence, I think = has=20 tremendous weakness in the way it is written and in the way it would = prosecute a=20 violent criminal who harms a pregnant woman. It is another effort to = undermine=20 Roe v. Wade, which as we know, has given women in this country the right = to=20 choose, and it is a very important right of privacy.=20

How do I know this is the supporters' motivation? = It is=20 easy for me because if they wanted to create a law that says we believe = that a=20 pregnant woman should be protected and we want to punish someone who = harms a=20 pregnant woman, it is a pretty easy thing to just support Senator=20 Feinstein's amendment. It is clean; it is clear; she doubles = the=20 penalties just as they do in their bill. She avoids the issue, however, = of a=20 woman's right to choose, which this is not about. There is nothing about = that in=20 this bill.=20

The substitute that Senator Feinstein has = offered=20 to us, which is like=20

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H.R. 1997, creates a separate = offense when=20 someone harms a pregnancy or terminates a pregnancy while in the = commission of a=20 violent Federal crime. That is very important to do because these crimes = are=20 heinous and all the more heinous if a woman is pregnant. As the author = of the=20 Violence Against Women Act in the House and working with Senator = Biden=20 for 10 years to get it through the Senate and the House and get it = signed into=20 law, Senator Feinstein's bill is in tune with that point that = we will=20 not stand by and allow violence against women. Particularly if a woman = is=20 pregnant, it makes the crime more vicious and it doubles the penalty for = such a=20 crime. It creates the same separate penalty for this separate crime, a = maximum=20 of 20 years for harm and a maximum of life in the event a pregnancy is=20 terminated. It does not require proof that the offender had knowledge of = the=20 woman's pregnancy.=20

The sole difference between the substitute that = Senator=20 Feinstein is offering and the Unborn Victims of Violence Act is = that=20 they want to bring in the issue of a woman's right to choose, and they = want to=20 make this bill about a woman's right to choose.=20

What on Earth does this have to do with a woman's = right to=20 choose? Nothing, not a thing. Senator Feinstein's substitute = focuses on=20 the pregnant woman. That is the issue, the pregnant woman. So one = wonders why=20 the other side cannot accept it. The answer is simple. Again, they are = trying to=20 make this about abortion, not about convicting a criminal.=20

I want to correct something. When I referenced the = House=20 bill, I meant to reference the Zoe Lofgren bill--and I am not sure of = that=20 number--not the House bill that is identical to Senator = DeWine's bill.=20 ZOE LOFGREN in the House had a similar bill to Senator=20 Feinstein's bill. That bill got a lot of support but not enough = support.=20

Again, it is very simple why people over there who = are=20 anti-choice did not support the Lofgren bill, and they do not support = the=20 Feinstein bill, because they want to make this about abortion and they = want to=20 undermine Roe v. Wade and a woman's right to choose.=20

I am a little bit shocked because the experts who = have=20 written to us have told us that the bill that the anti-choice Senators = are=20 supporting would make it harder to convict a criminal.=20

For example, Peter Rubin, visiting associate = professor at=20 Georgetown Law Center, when he testified before the House Judiciary = Committee,=20 said:=20

The phrase ``child in utero'' is ambiguous and = would=20 actually aid an offender in avoiding prosecution.=20

Imagine. It seems to me the other side is so = anxious to=20 undermine Roe and to confuse the subject and to make this bill about = abortion,=20 they are willing to pass an ambiguous bill which would actually aid the=20 offender, the criminal, and would actually allow some heinous criminal = to go=20 free.=20

I ask unanimous consent that Peter Rubin's letter = be=20 printed in the RECORD.=20

There being no objection, the material was ordered = to be=20 printed in the RECORD, as follows:=20

GEORGETOWN UNIVERSITY=20

LAW CENTER,=20

Washington, DC, July 21, 1999.
Re H.R. = 2436, The=20 Proposed ``Unborn Victims of Violence Act of 1999''--written testimony = of Peter=20 J. Rubin, Visiting Associate Professor of Law, Georgetown University Law = Center,=20 before the Subcommittee on the Constitution of the House Committee on = the=20 Judiciary.=20

I have been asked by this subcommittee to review = and=20 comment upon H.R. 2436, which would create a separate federal criminal = offense=20 where criminal conduct prohibited under a list of over sixty federal = statutes,=20 in the words of the proposed law ``causes the death of, or bodily injury = .....=20 to a child, who is in utero.'' I am honored to have the opportunity to = convey my=20 views to the subcommittee.=20

Where an act of violence against a pregnant woman = results=20 in a miscarriage, that act of violence has wrought a distinct and unique = harm in=20 addition to the harm it would have done had the woman not been pregnant. = Similarly, injury to a baby that may result from unlawful violence = perpetrated=20 upon its mother when it was a fetus in utero is something from which = government=20 may properly seek to protect the woman and the child.=20

Consequently, although many states adhere to the=20 traditional rule that the criminal law reaches only conduct against a = person=20 already born alive, some states have enacted laws that penalize conduct = that may=20 kill or, in some cases, injure, a fetus in utero. One example is North=20 Carolina's state statute which provides that ``A person who in the = commission of=20 a felony causes injury to a woman, knowing the woman to be pregnant, = which=20 injury results in a miscarriage or stillbirth by the woman is guilty of = a felony=20 that is one class higher than the felony committed.'' (N.C. Gen. State.=20 =A714-18.2.)=20

If the members of Congress conclude that causing = injury in=20 this way during the commission of a federal crime warrants additional=20 punishment, it, too, could adopt such a provision. Indeed, it seems as = though=20 this is one area on which both sides of the debate about abortion might = be able=20 to find common ground in supporting a properly worded statute that might = give=20 additional protection to women and their families from this unique class = of=20 injury.=20

As currently drafted, however, the proposed statute = differs=20 from some state laws on this issue in two critical respects. First is = its use of=20 the phrase ``child, who is in utero'' to describe the fetus. This is not = the=20 ordinary way statutes refer to fetuses in utero. Indeed, the proposed = law=20 appears to be unique in its use of this formulation. The use of this = language=20 will likely subject H.R. 2436 to legal challenge, and will likely render = the=20 proposed law ineffective in preventing and punishing acts that harm or = kill=20 fetuses being carried by pregnant women.=20

Second is the bill's treatment of the fetus solely = as a=20 separate victim of certain federal crimes. This approach is different = from that=20 taken by some states that have enacted criminal laws addressing fetal = injury or=20 death in that it fails to focus at all on the woman who is the victim of = the=20 violence that may injure or kill the fetus. It would be far easier to = reach=20 common ground with an approach that takes account of the place of the = pregnant=20 woman when acts of violence against her lead to fetal injury or death. = Indeed,=20 the approach taken by the current statute may lead to some unintended = results,=20 and is not consistent with the treatment of the fetus in the American = legal=20 tradition.=20

To begin with, the proposed law refers to ``a = child, who is=20 in utero at the time the conduct takes place.'' Because it uses these = words, the=20 proposed law would likely result more in useless litigation about the = statute's=20 meaning than in the prevention and punishment of conduct that results in = fetal=20 injury or death. Its use of the phrase ``child, who is in utero'' may = give a=20 defendant an argument that the statute is ambiguous, and that he lacked = the=20 notice of what acts are criminal that is required by the Due Process = Clause of=20 the Fifth Amendment. Does it mean the statute applies only to the injury = or=20 death of a ``child,'' that is one who is subsequently born, but who was = injured=20 in utero? Does it refer to a fetus past the point of viability? Does it = refer to=20 a single-cell fertilized ova that has not yet implanted in the uterine = wall? The=20 statute does not tell us.=20

Even if the law is not held inapplicable because of = unconstitutional vagueness, the Supreme Court has articulated a doctrine = known=20 as the doctrine of ``lenity.'' Rooted in part in separation of powers = concerns,=20 this doctrine means that an ambiguous federal criminal statute must be = construed=20 in the way most favorable to the defendant, lest an individual be = criminally=20 punished for conduct that Congress did not intend to criminalize. At = best, the=20 phrase ``child, who is in utero'' is ambiguous here, and a defendant is = likely=20 to be able to avoid prosecution for whatever conduct it is that the = drafters of=20 this law intend to criminalize.=20

In addition, this statute operates in a very = unusual=20 manner. It does not just increase the penalty for unlawful violence = against a=20 pregnant woman that results in the death of or injury to a fetus, nor = does it=20 criminalize injuring or killing a fetus if one has the requisite mental = state=20 and is aware of the woman's pregnancy. Rather it includes fetuses within = the=20 universe of persons who may be protected from injury or death resulting = from=20 violations of other federal criminal laws.=20

Many state laws address fetal injury and death only = in=20 certain circumstances, and, reflecting the unique nature of the = developing=20 fetus, many provide some penalty that is different from the penalty that = would=20 have applied had the defendant killed or injured a person who was = already born.=20 They tend also to take account of the fetus's stage of development. = State=20 feticide laws often do not treat even the intentional killing of a fetus = through=20 violence perpetrated upon the pregnant woman as murder equivalent to the = murder=20 of a person who has been born. Some, like North Carolina, enhance the = penalty=20 for the underlying criminal conduct. Others treat even intentional = feticide only=20 as manslaughter. Thus, in Mississippi, for example, the law provides = that ``The=20 wilful killing of an unborn quick child, by an injury to the mother of = such=20 child, which would be murder if it resulted in the death of the mother, = shall be=20 manslaughter.'' (Miss. Code. Ann. =A797-3-37.)=20

The proposed law by contrast says that whenever = causing=20 death or injury to a person in violation of a listed law would subject = an=20 individual to a particular punishment, he shall be subject to the same=20 punishment if he causes death or injury to a fetus. This is true = regardless of=20 the stage of fetal development. Whatever its rhetorical force, the = proposed law=20 would lead to some unusual, and probably unintended, results. To give = just one=20 example, under the Freedom of Access to Clinic Entrances Act (``FACE''), = 18=20 U.S.C. =A7248,=20

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one of the statues listed in = H.R. 2436, if an=20 individual who is engaged in obstructing access to an abortion clinic = knocks a=20 pregnant woman to the ground during a demonstration, he is liable to=20 imprisonment for up to one year. If he causes her ``bodily injury'' when = he=20 knocks her down, he would be subject under FACE to a ten-year term of=20 imprisonment. Under the proposed law, however, if she miscarried as a = result of=20 being knocked down, he would be subject to life imprisonment, the same = as if his=20 action had caused the death of the woman herself.=20

In addition to being far more practical, it would = be fare=20 easier to reach common ground on this issue with adoption of a statute = similar=20 to those state statutes, providing for enhanced punishments that I have=20 described. For in addition to the practical consequences, the use of a = statutory=20 framework, that seeks to achieve its result through treating all fetuses = at all=20 stages of development as persons distinct from the women who carry them=20 unnecessarily places federal statutory law on the path toward turning = the=20 pregnant women into the adversary rather than the protector of this = fetus she=20 carries. For although this law contains exceptions for abortion, for = medical=20 treatment of the woman or the fetus and for the woman's own = conduct--exceptions=20 that are both wise and constitutionally required--if the fetus were = truly a=20 ``person,'' there would be no principled reason to include such = exceptions. Yet=20 of course a law that did not contain them would be shocking to most = Americans=20 and both obviously and facially unconstitutional.=20

Finally, then, in failing to take account of the = women, the=20 proposed statute also sets federal law apart from the American legal and = constitutional tradition with respect to the treatment of the fetus. As = the=20 Supreme Court has, described, ``the unborn have never been recognized in = the law=20 as persons in the whole sense.'' At common law, the destruction of a = fetus in=20 utero was not recognized as homicide unless the victim was born alive. = And, of=20 course, the Supreme Court has held that fetuses are not persons within = the=20 meaning of the Fourteenth Amendment. This is a position with which even = as=20 staunch an opponent of Roe v. Wade as Justice Antonin Scalia agrees.=20

In addition, therefore, to the practical and = political=20 considerations that counsel in favor of an alternative approach, the = proposed=20 law would also unnecessarily set federal statutory law on a conceptual = collision=20 course with the Supreme Court's abortion decisions. Whatever one may = think of=20 those decisions, an unnecessary conflict about them would not contribute = to the=20 important work of healing where possible the country's division over = abortion.=20

Mrs. BOXER. Then you have Jon Jennings who in 1999 = was the=20 Acting Assistant Attorney General. He submitted a letter to = Representative=20 Henry Hyde on behalf of the Justice Department. He also wrote = the law=20 would be hard to prosecute because of the difficulty in gathering = evidence.=20

I ask unanimous consent to have Jon Jennings' = letter=20 printed in the Record.=20

There being no objection, the material was ordered = to be=20 printed in the RECORD, as follows:=20

U.S. DEPARTMENT OF JUSTICE,=20

OFFICE OF LEGISLATIVE AFFAIRS,=20

Washington, DC, September 9, 1999.
Hon. = HENRY=20 HYDE,
Chairman, Committee on the Judiciary, U.S. House of=20 Representatives, Washington, DC.=20

DEAR MR. CHAIRMAN: This letter presents the = views of=20 the Department of Justice on H.R. 2436, the ``Unborn Victims of Violence = Act of=20 1999.''=20

Section 2 of H.R. 2436 would make it a separate = federal=20 offense to cause ``death or bodily injury'' to ``a child in utero'' in = the=20 course of committing any one of 68 enumerated federal crimes. The = punishment for=20 the new crime under H.R. 2436 is the same as if the harm had been = inflicted upon=20 the ``unborn child's mother,'' except that the death penalty is not = permitted.=20 Section 3 of H.R. 2436 would make substantively identical amendments to = the=20 Uniform Code of Military Justice.=20

The Justice Department strongly objects to H.R. = 2436 as a=20 matter of public policy and also believes that in specific = circumstances,=20 illustrated below, the bill may raise a constitutional concern. The=20 Administration has made the fight against domestic violence and other = violence=20 against women a top priority. The Violence Against Women Act (VAWA), = which=20 passed with the bipartisan support of Congress in 1994, has been a = critical=20 turning point in our national effort to address domestic violence and = sexual=20 assault. VAWA, for the first time, created federal domestic violence = offenses=20 with strong penalties to hold violent offenders accountable. While most = domestic=20 violence crimes are appropriately prosecuted at the state and local = level, the=20 Department of Justice has brought 179 VAWA and VAWA-related federal = indictments=20 to date, and this number continues to grow. In addition, the Department = of=20 Justice alone has awarded well over $700 million through VAWA grant = programs=20 since 1994, directing critical resources to communities' efforts to = respond to=20 domestic violence and sexual assault. These funds have made a difference = in=20 women's lives, and in how communities respond to violence against women. = Indeed,=20 these funds have helped save the lives of many victims of domestic = violence.=20

If the Committee wants to make a difference in the = lives of=20 women victims of violence, it should reauthorize the Violence Against = Women Act.=20 We hope that Congress will work with us on this common goal. H.R. 2436, = however,=20 is not an adequate response to violence against women. Our three main = objections=20 to H.R. 2436 are described below.=20

First, H.R. 2436 provides that the punishment for a = violation shall be the same as the punishment that would have been = imposed had=20 the pregnant woman herself suffered the injury inflicted upon her fetus. = The=20 Department agrees that some additional punishment may be warranted for = injury to=20 pregnant women. H.R. 2436, however, would trigger a substantial increase = in=20 sentence as compared with the sentence that could otherwise be imposed = for=20 injury to a woman who is not pregnant.=20

Second, H.R. 2436 expressly provides that the = defendant=20 need not know or have reason to know that the victim is pregnant. The = bill thus=20 makes a potentially dramatic increase in penalty turn on an element for = which=20 liability is strict. As a consequence, for example, if a police officer = uses a=20 slight amount of excessive force to subdue a female suspect--without = knowing or=20 having any reason to believe that she was pregnant--and she later = miscarries,=20 the officer could be subject to mandatory life imprisonment without = possibility=20 of parole, even though the maximum sentence for such use of force on a=20 non-pregnant woman would be 10 years. This approach is an unwarranted = departure=20 from the ordinary rule that punishment should correspond to culpability, = as=20 evinced by the defendant's mental state.=20

Third, H.R. 2436's identification of a fetus as a = separate=20 and distinct victim of crime is unprecedented as a matter of federal = statute.=20 Such an approach is unnecessary for legislation that would augment = punishment of=20 violence against pregnant women. Additionally, such an approach is = unwise to the=20 extent that it may be perceived as gratuitously plunging the federal = government=20 into one of the most--if not the most--difficult and complex issues of = religious=20 and scientific consideration and into the midst of a variety of State = approaches=20 to handling these issues.=20

Our policy concerns with H.R. 2436 are exacerbated = by the=20 likelihood that the bill will yield little practical benefit. Because = the=20 criminal conduct that would be addressed by H.R. 2436 is already the = subject of=20 federal law (since any assault on an ``unborn child'' cannot occur = without an=20 assault on the pregnant woman), H.R. 2436 would not provide for the = prosecution=20 of any additional criminals. At the same time, prosecutors proceeding = under H.R.=20 2436 would be likely to encounter difficulty collecting evidence to = support=20 their prosecutions. For instance, the prosecutor would have to establish = that=20 the defendant's conduct ``cause[d]'' the injury--given the inherent risk = of=20 miscarriage and birth defects that occur absent any human intervention,=20 causation may be very difficult to establish.=20

Finally and critically, the drafters of H.R. 2436 = are=20 careful to recognize that abortion-related conduct is constitutionally=20 protected. The bill accordingly prohibits prosecution for conduct = relating to a=20 consensual abortion or an abortion where consent ``is implied by law in = a=20 medical emergency.'' Without this exception, the bill would be plainly=20 unconstitutional. Including the exception does not, however, remove all = doubt=20 about the bill's constitutionality. The bill's exception for = abortion-related=20 conduct does not, on its face, encompass situations in which consent to = an=20 abortion may be implied by law (if, for example, the pregnant woman is=20 incapacitated) even though there is no medical emergency. In this = situation, the=20 bill may unduly infringe on constitutionally protected conduct.=20

For these reasons, we strongly oppose H.R. 2436. = The=20 Administration, however, would work with Congress to develop alternative = legislation that would strengthen punishment for intentional violence = against=20 women whom the perpetrator knows or should know is pregnant, strengthen = the=20 criminal provisions of VAWA, and reauthorize the grant programs = established by=20 this historic legislation.=20

Thank you for this opportunity to present our = views. The=20 Office of Management and Budget has advised us that from the standpoint = of the=20 Administration, there is no objection to submission of this letter. = Please do=20 not hesitate to call upon us if we may be of further assistance.=20

Sincerely,=20

JON P. JENNINGS,
Acting Assistant = Attorney=20 General.=20

Mrs. BOXER. Then there is a recent letter of George = Fisher,=20 a tenured professor at Stanford, former prosecutor and expert on the = criminal=20 justice system. He, too, believes it makes things worse in terms of = convicting a=20 criminal.=20

The PRESIDING OFFICER. The Senator has now used 9 = minutes=20 of time.=20

Mrs. BOXER. I ask unanimous consent for 2 more = minutes from=20 my colleague.=20

The PRESIDING OFFICER. Does the Senator from = California=20 yield an additional 2 minutes?=20

Mrs. FEINSTEIN. I yield as much time as she may = require.=20

Mrs. BOXER. I thank my colleague.=20

I ask unanimous consent the letter from George = Fisher be=20 printed in the RECORD.=20

There being no objection, the material was ordered = to be=20 printed in the RECORD, as follows:=20

STANFORD LAW SCHOOL,=20

Stanford, CA, July 10, 2003.
Senator DIANNE=20 FEINSTEIN,
U.S. Senate, Senate Hart Office Building, = Washington,=20 DC.=20

DEAR SENATOR FEINSTEIN, I wish to express my = concern=20 about the current formulation of S. 1019, the Unborn Victims of Violence = Act of=20 2003. Although I fully endorse the Bill's ultimate aim of protecting = pregnant=20 women from the physical and psychological trauma of an endangered or = lost=20 pregnancy, I believe that the Bill's current formulation will frustrate = rather=20 than forward this goal.=20

I write both as a former persecutor and as a law = professor=20 specializing in criminal law and criminal prosecution. At the outset of = my=20 career, I served as an assistant district attorney in Middlesex County, = Mass.,=20 and as an assistant attorney general in the Massachusetts Attorney = General's=20 office. I then went to Boston College Law School, where I administered = and=20 taught in the criminal prosecution clinic. I have been at Stanford since = 1995=20 and a tenured professor of law since 1999; during the next academic = year, I will=20 serve as Academic Associate Dean. In 1996 I founded Stanford's criminal=20 prosecution clinic and have administered and taught in the clinic ever = sine. I=20 have also created a course in prosecutorial ethics, which I taught at = Boston=20 College Law School and, as a visitor, at Harvard Law School.=20

First: The Bill's apparent purpose of influencing = the=20 course of abortion politics will discourage prosecutions under any = future Act.=20

Third: The Bill's apparent purpose of influencing = the=20 course of abortion politics offends the integrity of the criminal law.=20

To anyone who cares deeply about the integrity of = the=20 criminal law, this Bill's apparent attempt to insert an abortion = broadside into=20 the criminal code is greatly offensive. The power to inflict criminal = penalties=20 is, second only to the power to wage war, the highest trust invested in = our=20 institutions of government. Because the power to make and enforce = criminal laws=20 inherently carries enormous potential for abuse, those who exercise that = power=20 must always do so with a spirit free of any ulterior political motive. = The=20 American Bar Association's Standards Relating to the Administration of = Criminal=20 Justice provide that ``[i]n making the decision to prosecute, the = prosecutor=20 should give no weight to the personal or political advantages or = disadvantages=20 which might be involved.......'' (Standard 3-3.9(d).) Not all = prosecutors=20 conduct themselves with fidelity to this principle, but we may readily = condemn=20 those who do not. We may likewise condemn other public actors who abuse = the=20 sacred public trust of the criminal sanction for political ends.=20

My thanks to you for your consideration of my = views.=20

Sincerely,=20

George Fisher,
Professor of Law.=20

Mrs. BOXER. Mr. President, according to the = experts,=20 creating a separate offense for a child in utero would make it less = likely that=20 someone who harms or terminates a pregnancy would be convicted of a = separate=20 offense. So I find it stunning that, rather than back Senator=20 Feinstein's substitute, which is very clear--you harm a = pregnant woman,=20 you are going to do double the time, you are going to get double the = punishment,=20 and it avoids all question of Roe v. Wade--it shocks me my colleagues on = the=20 other side would rather have a weaker bill, soft on the criminal, soft = on crime,=20 in order to undermine Roe v. Wade. It is an injection of a political = agenda into=20 the criminal justice system which I think harms the integrity of the = system.=20

Again, I am at a loss for words. That is hard for = me to=20 believe. But if you look at domestic violence groups, they will tell you = how=20 they feel about it. They say they don't support the legislation. They = feel it=20 would actually be harmful to battered women.=20

Again, as someone who coauthored the Violence = Against Women=20 Act with Senator Biden, here we have a piece of legislation = that is=20 going to be harmful to battered women. Yet the other side will not = support=20 Senator Feinstein's amendment, which absolutely avoids this = problem.=20

Juley Fulcher, public policy director of the = National=20 Coalition Against Domestic Violence, who testified before the House = subcommittee=20 in July 2003, said in her written statement:=20

The bill is not designed to protect women and does = not help=20 victims of domestic violence. Instead, the focus often will be shifted = to the=20 impact of the crime on the unborn embryo or fetus, once again diverting = the=20 attention of the legal system away from domestic violence or other forms = of=20 violence against women.=20

I commend to my colleagues the July 8, 2003 = testimony of=20 Juley Fulcher before the Subcommittee on the Constitution of the House = Committee=20 on the Judiciary.=20

We also have a letter from Lynn Rosenthal, the = executive=20 director of the National Network to End Domestic Violence, and the = letter of=20 Esta Soler, president of the Family Violence Prevention Fund. I ask = unanimous=20 consent to have them printed in the RECORD.=20

There being no objection, the material was ordered = to be=20 printed in the RECORD, as follows:=20

NATIONAL NETWORK TO END=20

DOMESTIC VIOLENCE,=20

Washington, DC, February 18, 2004.=20

DEAR MEMBER OF CONGRESS: The National = Network to End=20 Domestic Violence (NNEDV), a social change organization representing = state=20 domestic violence coalitions, is dedicated to creating a social, = political and=20 economic environment where violence against women no longer exists. We = are=20 writing because we know that you will soon be considering the Unborn = Victims of=20 Violence Act (UVVA). We know that this is a difficult and emotional = issue, and=20 that you are carefully considering your position.=20

After very careful consideration and study on our = part, we=20 have concluded that the UVVA is not the appropriate remedy for = addressing=20 violence against pregnant women. We certainly share the concerns of the = sponsors=20 of the legislation about tragic crimes such as the murder of Laci = Peterson and=20 other pregnant women. We know that Congress is seeking tools and = remedies to=20 address such violence, and appreciate your ongoing support for the = Violence=20 Against Women Act. Our concerns about the UVVA are mainly focused on its = potential impact on the safety and status of women who are victims of = domestic=20 violence.=20

Our first concern is that the legislation could = potentially=20 remove the focus on the women as the victim of violence. It would be = possible=20 under the UVVA that a violent crime specifically targeted at a woman = could be=20 prosecuted with the fetus presented as the primary victim. Yet, it is = the=20 violent act against the woman that is at the root of the devastating = injuries to=20 the women and the pregnancy. In our view, legislation and policy should = be=20 focused on recognizing violence against women as the serious crime it = is, and=20 need not rely on loss of a pregnancy to vigorously prosecute these = crimes.=20

[Page: S3141]

Our second concern is that while the UVVA on its = face seems=20 to protect women from prosecution of the violence causes her to lose the = pregnancy, it may lead to a slippery slope that erodes women's rights = and holds=20 them responsible for this loss. This slippery slope has already formed = in South=20 Carolina and California, two states with unborn victims legislation. For = example, in Whitner v. State, the court found that South Carolina's = child=20 endangerment statute could be used to punish a pregnant woman who = engaged in any=20 behavior that might endanger her fetus.=20

Legislation regarding violence against women must = be=20 carefully considered in order to prevent unintended effects from hurting = the=20 very women it is supposed to help. Battered women cannot control the = violence=20 against them, and should not face the possibility of prosecution simply = because=20 they are victims of domestic violence. The landmark case of Nicholson v. = Williams, decided in the Eastern District of New York, represents an = enormous=20 step in clarifying this position. The federal district court in = Nicholson found=20 that mothers' due process rights had been violated when their children = were=20 taken away from them merely because they were victims of abuse. That = decision=20 correctly puts the emphasis on the abused woman, and stands for the = proposition=20 that an abused woman should not be punished, or prosecuted, for = occurrences=20 beyond her control.=20

Because of our work with battered women, we do know = that=20 violence often occurs during pregnancy, and that pregnant women may be = both=20 physically and psychologically more vulnerable to such abuse. We believe = that by=20 supporting sentencing enhancements, Congress can advance both its goals = of=20 protecting victims of domestic violence and providing a legal sanction = for loss=20 of pregnancy as a result of battering. Sentencing enhancements = appropriately=20 punish the additional injuries that such acts cause without causing the=20 unnecessary complications, and potentially dangerous consequences, for = the women=20 we serve.=20

There are also a number of other steps Congress can = take to=20 more effectively address the problem of violence against women. First, = Congress=20 can fully fund the Violence against Women Act. Unfortunately, the 2004 = budget=20 includes $16.1 million in cuts to the STOP grant program, which provides = funding=20 to states, tribes and territories to enhance the law enforcement = response to=20 domestic violence and sexual assault, improve prosecution and support = victim=20 services. These cuts will have a detrimental impact on communities all = across=20 the country that are struggling to maintain core interventions for = victims. In=20 addition, the Battered Women's Shelter and Services funding was also cut = in=20 2004, and remains at $48 million below the authorized level. Funds to = battered=20 women's programs and rape crisis centers have also received cuts at the = local=20 and state level over the past several years. These losses are = devastating to=20 providers facing bruised and bleeding women every day. Congress can work = to=20 address the problem of violence against women by fully funding these = life-saving=20 services.=20

Thank you for considering our perspective on the = UVVA.=20 While the bill is noble in its intentions, we are concerned that it may = not=20 fulfill its purpose of creating a legal atmosphere in which women feel = protected=20 from violence. Please feel free to call me if you need any additional=20 information. We appreciate for your commitment to ending violence = against women,=20 and look forward to continuing to work with you to address this most = urgent=20 social problem.=20

Sincerely,=20

Lynn Rosenthal,
Executive Director.=20

--

END ABUSE,=20

Washington, DC, March 23, 2004.
Hon. JERROLD = NADLER,
2334 RHOB,
Washington, DC.=20

DEAR REPRESENTATIVE NADLER: On behalf of the = Family=20 Violence Prevention Fund, I am writing to express concern about the = Unborn=20 Victims of Violence Act, H.R. 1997, passed by the House Judiciary = Committee on=20 January 21. We are deeply disappointed that some are promoting this bill = as a=20 way to end domestic violence, when better and more direct measures to = stop=20 family violence languish in Congress year after year. Members of = Congress who=20 want to stop abuse will put their energy into passing the prevention and = intervention measures that offer great promise to stop violence before = it=20 starts.=20

The murder of Laci Peterson was an unspeakable = tragedy, but=20 many laws designed as quick fixes have caused great harm. For example, = mandatory=20 domestic violence health reporting laws deter women from seeking the = medical=20 help they need. We need to stop back and consider what actually works. = Our goal=20 must be to stop violence against all women, regardless of whether they = are=20 pregnant.=20

If Congress is serious about stopping domestic = violence=20 against pregnant women and helping women and children who are victims, = Members=20 will quickly pass the Domestic Violence Screening, Treatment and = Prevention Act,=20 H.R. 1267. This essential bill would train health care providers to = routinely=20 screen female patients for a lifetime history of abuse and give women = access to=20 critical domestic violence services when abuse is identified. Introduced = in the=20 House in March of 2003 by Representatives Lois Capps (D-CA) and Steven=20 LaTourette (R-OH), this bill has the potential to prevent tragedies by = helping=20 victims before violence escalates.=20

We also urge Congress to fully fund all Violence = Against=20 Women Act programs and support legislation that would actually prevent = domestic=20 violence before it begins. Domestic violence prevention legislation = should=20 include services for children who are exposed to abuse, programs that = support=20 young families at risk of violence, and efforts to each young men and = boys how=20 to develop healthy, non-violent relationships. Such legislation would do = much=20 more to stem the tide of domestic violence than the Unborn Victims of = Violence=20 Act.=20

Finally, we wish to thank you for your continued = leadership=20 and support on this issue. As an advocate in Congress and as one of our = Founding=20 Fathers, you truly make a difference in the movement to end violence = against=20 women and children. If we can be of assistance, please do not hesitate = to=20 contact Kiersten Steward in our Washington, D.C. office at 202-682-1212. =

Sincerely,
Esta Soler,=20

President, Family Violence =
Prevention=20 Fund.=20

Mrs. BOXER. Here we have it. I am going to finish = with=20 this. We have a bill before us Senator Feinstein has improved = greatly.=20 We have a bill before us that, instead of concentrating on punishing the = violent=20 criminal, concentrates instead on trying to set the stage to reverse Roe = v.=20 Wade, which the vast majority of people in this country think is a good = law that=20 balances the rights of the woman and the rights of the fetus. Yet they = are so=20 interested in doing this that they have a bill that is going to make it=20 difficult to convict the criminal who commits the heinous crime against = the=20 pregnant woman. It shows you how far the other side will go.=20

When we reach out our hand, as we have done many = times with=20 them, they will not take our hand. They push it away, because they are = much more=20 interested in the political agenda of taking away a woman's right to = choose.=20

My heart goes out to Laci Peterson's family and to = all the=20 other families that have experienced the tragedy of losing a loved one = to a=20 violent crime and, on top of that, losing the joy I and Senator=20 Feinstein have of having grandchildren.=20

But we need to pass laws here that will make = matters=20 better, not make matters worse. We need to pass laws here that are = clean, that=20 will make the law clear and not murky. I think Senator = Feinstein's=20 substitute--she wrote it with the Laci Peterson family in her heart. She = wants=20 to make sure criminals who would attack a pregnant woman are brought to = justice=20 and we don't get diverted to some other issues.=20

I am proud to stand with my colleague on this one. = I know=20 how hard this is. I know how hard she has worked. I will support her = substitute=20 very proudly, knowing it is the right thing to do, to crack down against = these=20 heinous crimes and to protect pregnant women.=20

I thank her very much, and I yield the floor and = reserve=20 the remainder of Senator Feinstein's time.=20

The PRESIDING OFFICER. Who yields time? The Senator = from=20 Kansas is recognized.=20

Mr. BROWNBACK. Mr. President, on behalf of the = Senator from=20 Ohio, I yield myself such time as I might consume on his side.=20

The PRESIDING OFFICER. Without objection, it is so = ordered.=20 The Senator is recognized.=20

Mr. BROWNBACK. Mr. President, I inquire first how = much time=20 is remaining for the Senator from Ohio.=20

The PRESIDING OFFICER. There are 41 minutes = remaining on=20 the Senator's side.=20

Mr. BROWNBACK. Thank you, Mr. President.=20

I thank my colleagues for being here to participate = in a=20 difficult debate. I have a difficult set of stories I want to tell. If = any of=20 the individuals here in this body, or watching, are interested in = talking to the=20 individuals involved, they are actually outside in the lobby. I invite = anybody=20 to come out. There are grandparents, mothers of victims--there are the = women who=20 themselves were assaulted and lost a child. They are here. For those = individuals=20 here would care to visit with them, they would love to have a chance to = tell=20 their story.=20

The question is simple: do we have one victim or = two=20 involved in violent crimes such as these? That is the simple question. I = will=20 present a series of case studies to my colleagues and then I will ask my = question again--colleagues, do we have here one victim, or two?=20

[Page: S3142]

We start with the story of Christina and Ashley = Nicole=20 Alberts. We have a chart which presents a heartbreaking picture. I think = it=20 needs to be shown to better tell the story. This is a gut-wrenching = picture of=20 Christina and Ashley Nicole Alberts (you can see them there in the = coffin). It=20 is a difficult picture. This body needs to know what the Unborn Victims = of=20 Violence Act is about--the victim.=20

I ask my colleagues to bear in mind that the Unborn = Victims=20 of Violence Act states there are two victims--there are two victims in = this=20 picture. The amendment we are considering right now, the Feinstein = amendment,=20 says there is only one victim--one victim in this picture. I simply ask = my=20 colleagues to make that determination. Is there one victim or are there = two in=20 this picture? Here is the story.=20

In December 1998, Christina was nearly 9 months = pregnant.=20

Ashley was looking forward to life with her = soon-to-be-born=20 daughter whom she could definitely feel moving, alive and well, and = growing in=20 her womb. When she found out she was going to have a girl, she decided = to name=20 her Ashley Nicole.=20

However, this earthly life--which all of us living = and=20 breathing here today enjoy--tragically came to a screeching halt for = Christina=20 and Nicole on December 12, 1998. On that day, some thugs were going = around=20 robbing homes for money. The thugs entered the house where Christina = was.=20 Christina recognized one of them, and because she recognized one of = them, it=20 cost her and her baby Ashley Nicole their lives.=20

Christina was beaten. Can you imagine someone = beating a=20 woman in the ninth month of her pregnancy? Yet they did. I think of my = own=20 family and my own wife if she were in that type of situation.=20

Christina was then forced to kneel, and she was=20 executed--shot in the head. Once the trigger had been pulled, releasing = the=20 bullet that abruptly ended her life, one might think at least the = physical pain=20 from the crime was over for Ashley Nicole. It was not. When her mother's = heart=20 stopped, her inutero child does not die instantly. Instead, the inutero = baby=20 dies slower. When the mother's heart stops beating, the baby begins to = suffocate=20 for lack of oxygen. The baby can feel. The baby is in pain. At 4 = minutes, the=20 baby begins to suffer severe neurological damage. The process gets = worse. Ashley=20 Nicole would have finally died 15 minutes after her mother Christina had = been=20 shot and killed.=20

Look at this photo again of Christina and Ashley in = the=20 coffin. Is there one victim? Or are there two? Who will say there is = only one=20 victim in this coffin? Yet this substitute amendment we are considering = will say=20 there is only one victim.=20

What about the family? What about Ashley Nicole's=20 grandparents? What happened to them after the murders? Christina and = Ashley=20 Nicole lived in Kanawah County, West Virginia.=20

Her grandmother is here today.=20

In addition to the horrific news of their daughter = and=20 granddaughter's murder, they were further traumatized to learn the West = Virginia=20 murder statute does not allow the prosecution of an individual for the = murder of=20 an unborn child.=20

Do you know what happened in the murder trial for = Christina=20 and Ashley's killer? Christina's pregnancy could not even be discussed = in court.=20 Any recent photos of Christina shown during the trial could only show = facial=20 shots. Why? Because the court said any pictures of Christina in which it = would=20 have been obvious she was pregnant would have been prejudiced.=20

I ask my friends from West Virginia to support = their=20 constituents, the Alberts, by opposing the Feinstein substitute and = voting for=20 passage of unamended Unborn Victims of Violence Act.=20

I have another story to tell--Heather Fliegelman = Sargent.=20

In this picture with her mother, as you can see,=20 20-year-old Heather was well into her pregnancy. Heather was 8 months = pregnant=20 with her son Jonah.=20

I also point out that her mother and the = grandmother of=20 Jonah are here with us today in the lobby, if people should care to = visit with=20 her.=20

Sadly, both the lives of Heather and Jonah were = taken in=20 January 2003, over a year ago. Heather was found dead with multiple stab = wounds=20 in her home in Bangor, ME. Her husband Roscoe Sargent was tried on = one--only=20 one--count of murder.=20

The Bangor Daily News reported on January 10, 2003: = ``That=20 Heather Sargent was pregnant did not affect the charges brought against = her=20 husband ..... No matter how advanced the pregnancy, Maine's homicide law = does=20 not apply to unborn fetuses.''=20

But listen to this. Another news story on that same = day,=20 January 2, 2003, tells us that ``Police also reportedly found several = dead cats=20 at home. Whoever=20

killed the cats faces charges under the State's = animal=20 welfare act, while no charges will stem from the death of the unborn = baby.''=20

Is it even remotely rational to charge someone with = the=20 death of these cats and yet not charge them with the death of a viable=20 8-month-old baby?=20

As we move to the next chart in the same case, I = want to=20 pause for a moment and urge caution for any parents who may be watching = with=20 young children present. They may not want to view this. It is a serious = matter,=20 and these are real life stories that people need to hear. But, = nonetheless, they=20 are difficult.=20

I would simply ask as we move to the next chart, = are we=20 looking at one victim or two? On the left in the chart is Heather before = she was=20 stabbed to death, and on the right is Jonah who also died in the attack. =

The grandmother of Jonah is here with us today.=20

I hope Senators will hear the pleas of their=20 constituents--the family of Heather and Jonah who are here in the Senate = today=20 watching, as I noted. Please, in their behalf, on behalf of Heather and = Jonah,=20 oppose this substitute that says there is only one victim.=20

The Feinstein substitute would increase penalties = for=20 Federal crimes in which a pregnant woman is a victim, but it would also = write=20 into Federal law the doctrine that such a crime has only a single = victim. If we=20 pass this Feinstein amendment, and a mother survives such an attack, she = will be=20 told, ``We can prosecute your attacker for assault but not for = murder--the law=20 says nobody died.''=20

This cannot and should not be. On behalf of Heather = and=20 Jonah, I urge my colleagues to oppose the Feinstein substitute and = support the=20 underlying bill un-amended.=20

I have another story to tell. This picture shows = the late=20 Ashley Lyons of Kentucky. Ashley was killed when she was 21 weeks = pregnant with=20 her son Landon, in January of this year--just 3 months ago.=20

Her parents and Landon's grandparents are here = today. They=20 are in the lobby, if anybody would care to meet with them. I have met = personally=20 with them. They are very passionate about this case and about what took = place.=20 If Ashley and her son Landon were with us today, they would be planning = for=20 Landon's birth in just a little over a month. I have a staff member who = is=20 expecting a child in a little over a month, so this really hits home.=20

Rather than telling the story of Ashley and Landon = myself,I=20 would like to read their story as it was written by the mother and = grandmother,=20 Mrs. Carol Lyons. As I noted, Mrs. Carol Lyons is with us here today, = along with=20 her husband Buford. It was their efforts that helped get an unborn = victims law=20 passed in Kentucky--too late for their daughter and grandson, but not = too late=20 for other victims.=20

I will read you this story which actually quotes = Ashley, as=20 written by her mother, the grandmother of Landon. It was written = February 25,=20 2004.=20

I note parenthetically that if this crime had = happened on a=20 military base where only Federal law applies, there would be only one=20 victim--not two--unlike California law, which acknowledges two victims = of=20 violence.=20

Ashley's mother writes:=20

On January 7, I was seeing my grandson, Landon, for = the=20 first time. Landon was moving around in an ultrasound image on the TV = screen in=20 our home in Stomping Ground, Kentucky. We could clearly see Landon's = little=20 heart beating. We could see his little face. Just a few hours later, = Ashley and=20 Landon were both dead. They were found murdered--shot to death in a = local park.=20

Later, I found a journal that Ashley had been = writing to=20 her baby. Right at the beginning, when she was only two months pregnant, = she=20 wrote how she had rejected advice to get an abortion.=20

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Clearly Ashley made a choice to have a child. She = wrote in=20 her journal: ``I couldn't do that. I already loved you.''=20

Ashley also wrote: ``You are the child I have = always=20 dreamed about. I know that it will be a long time before I meet you, but = I can't=20 wait to hold you for the first time. I love you more everyday. Always, = Mommy.''=20

Yes, the killer took two lives--each with a long, = bright=20 future ahead. It is heartless and cruel to say that the law must pretend = this is=20 not so, in order to preserve ``choice'' on abortion. Ashley had made her = choice--and she chose life.=20

This, again, is her mother Carol speaking.=20

Our case has been widely reported in Kentucky. In = response,=20 both houses of the legislature passed a strong fetal homicide bill, and = on=20 January 20th, Governor Ernie Fletcher signed it into law.=20

I pray that Congress, too, will soon pass the = Unborn=20 Victims of Violence Act, which will allow a criminal to be charged for = any harm=20 he does to an unborn child during commission of a Federal or military = crime.=20

Of course, laws are not retroactive, so no laws = enacted now=20 will allow full justice to be done on Landon's behalf.=20

But they will ensure in the future no mother, = grandmother,=20 or other family member will ever again be told that the law is blind to = the loss=20 of a child who is unborn but already living and loved.=20

I ask my colleagues to listen again to Ashley's = words to=20 her child Landon--both victims, both were murdered:=20

You are the child I have always dreamed about. I = know it=20 will be a long time before I meet you, but I can't wait to hold you for = the=20 first time. I love you more every day. Always, Mommy.=20

I ask my colleagues, is there one victim, or are = there two?=20 Is it one victim or two when Ashley and Landon were murdered?=20

I have another case--unfortunately, there are too = many of=20 these cases--that demonstrates why this law needs to be dealt with. Here = is a=20 picture of Tracy Marciniak holding her son Zachariah 12 years ago. This = is a=20 case from Wisconsin.=20

We all have precious baby photos. I have five = children, and=20 I love each of them and have precious photos. This should be a happy = baby photo,=20 but if you look closely, you will see it is not. You can see it by the = look on=20 Tracy's case, by the coffin behind her, and by the funeral flowers. = Tracy's son=20 Zachariah is dead and she, Tracy, survived, and is here today. If people = would=20 like to visit with her, she is in the lobby.=20

In 1992, in Wisconsin, Tracy was terribly beaten. = She lived=20 and her son Zachariah died. I have spoken with Tracy, and I have heard = how the=20 loss of Zachariah hurts her to this very day. Regrettably, justice was = not=20 served. Was Tracy and Zachariah's assailant charged with the murder of=20 Zachariah? No. In Wisconsin, law enforcement authorities told Tracy's = family=20 they could only charge the attacker with assault; in the eyes of the = law, no one=20 died.=20

What is more, Tracy's attacker says he would not = have=20 attacked her if he could have been charged with murder. Let me state = that again:=20 If Tracy's attacker had known he could have been charged with murder, he = would=20 not have attacked her.=20

I would like to read a portion of Tracy's July 8, = 2003,=20 testimony in front of the House Judiciary subcommittee, where she has = spoken=20 about this case before. This is Tracy Marciniak's statement:=20

I respectfully ask that the members of the = subcommittee=20 examine the photograph that you see before you. In this photo, I am = holding the=20 body of my son, Zachariah Nathaniel.=20

Often, when people see the photo for the first = time, it=20 takes a moment for them to realize that Zachariah is not peacefully = sleeping.=20 Zachariah was dead in this photograph. This photo was taken at = Zachariah's=20 funeral.=20

I carried Zachariah in my womb for almost nine full = months.=20 He was killed in my womb only five days from his delivery date. The = first time I=20 ever held him in my arms, he was already dead. This photo shows the = second time=20 I held him--it was the last time.=20

There is no way I could really tell you about the = pain I=20 feel when I visit my son's grave site in Milwaukee, and at other times, = thinking=20 of all we missed together. But that pain was greater because the man who = killed=20 Zachariah got away with murder.=20

I know that some lawmakers in some groups insist = there is=20 no such thing as an unborn victim, and that crimes like this have only a = single=20 victim--but that is callous and it is wrong. Please don't tell me that = my son=20 was not a real victim of a real crime. We were both victims, but only I=20 survived.=20

Zachariah's delivery date was to be February 13, = 1992. But=20 on the night of February 8, my own husband brutally attacked me in my = home in=20 Milwaukee. He held me against a couch by my hair. He knew that I very = much=20 wanted my son. He punched me very hard, twice, in the abdomen. Then he = refused=20 to call for help, and prevented me from calling.=20

After about 15 minutes of my screaming in pain that = I=20 needed help, he finally went to a bar and from there called for help. I = and=20 Zachariah were rushed by ambulance to the hospital, where Zachariah was=20 delivered by emergency Caesarean section. My son was dead. The = physicians said=20 he had bled to death inside me because of blunt-force trauma.=20

My own injuries were life-threatening. I nearly = died. I=20 spent three weeks in the hospital. During the time I was struggling to = survive,=20 the legal authorities came and they spoke to my sister. They told her = something=20 that she found incredible. They told her that in the eyes of Wisconsin = law,=20 nobody had died on the night of February 8.=20

Later this information was passed on to me. I was = told that=20 in the eyes of the law, no murder had occurred. I was devastated.=20

My life already seemed destroyed by the loss of my = son. But=20 there was so much additional pain because the law was blind to what had = really=20 happened. The law, which I had been raised to believe was based on = justice, was=20 telling me that Zachariah had not really been murdered.=20

Before his trial, my attacker said on a TV program = that he=20 would never have hit me if he had thought he could be charged with = killing an=20 unborn baby.=20

My family and I looked for somebody who would help = us=20 reform the law so that no such injustice would occur in our state in the = future.=20 We found only one group that was willing to help, Wisconsin Right to = Life. They=20 never asked me my opinion on abortion or on any other issue. They simply = worked=20 with me, and other surviving family members of unborn victims, to reform = the=20 law.=20

It took years. Again and again I told my story to = state=20 lawmakers and pleaded with them, as I now plead with you, to correct = this=20 injustice in our criminal justice system.=20

Finally, on June 16, 1998, Governor Tommy Thompson = signed=20 the fetal homicide law. This means it will never again be necessary for = state=20 authorities in Wisconsin to tell a grieving mother, who has lost her = baby, that=20 nobody really died. Under this law, an unborn child is recognized as a = legal=20 crime victim, just like any other member of the human race.=20

Of course, the state still has to prove anything = beyond a=20 reasonable doubt to a jury, which is as it should be. But when this bill = was=20 under consideration in the legislature, it was actually shown to some of = the=20 former jury members in our case, and they said if that had been the law = at the=20 time I was attacked, they would have had no problem convicting my = attacker under=20 it.=20

Next, I present a statement from Ms. Shiwona Pace = of=20 Arkansas. Ms. Pace suffered a horrible tragedy. She was severely beaten = by=20 several attackers, and as a direct result, her baby, whom she had named = Heaven,=20 died. Fortunately, Arkansas passed an unborn victims of violence law = prior to=20 the crime committed by Ms. Pace's assailants. Under the Feinstein = amendment, Ms.=20 Pace's assailants would not have even committed a crime, other than = assault.=20 Please listen to her plea to legislators.=20

My name is Shiwona Pace. On August 26, 1999, I was = a=20 23-year-old college student in Little Rock. I was the mother of two--my=20 five-year-old son, and an unborn baby girl named Heaven Lashay.=20

August 26 was one day before my predicted full-term = delivery date. But that night, three men brutally murdered my unborn = baby=20 daughter. I curled up face down on the floor, crying, begging for them = to stop=20 beating me. But they did not stop. One shouted, ``F*** you! Your baby is = dying=20 tonight!''=20

They choked me, punched me, hit me in the face with = a gun.=20 They kicked me again and again in the abdomen. After about thirty = minutes, they=20 left me sobbing there on the floor. At the hospital, they found that = Heaven had=20 died in my womb. She was a perfect baby, almost seven pounds.=20

The assailants were arrested. They had been hired = by Erik=20 Bullock, my former boyfriend. He paid them $400 to kill little Heaven = Lashay.=20

Only a month before, a new state law took effect = that=20 recognized unborn children as crime victims. If that law had not been = enacted,=20 Erik Bullock would have been prosecuted only for the assault on me, but = not for=20 the death of my baby.=20

But thanks to the state law, Bullock was also = convicted for=20 his role in killing my baby. The men who attacked me are also being = prosecuted=20 for what they did to Heaven.=20

I tell my story now for one reason: If this same = attack=20 occurred today within a federal jurisdiction, the men who killed my baby = would=20 be prosecuted only for assault. That is why I urge members of Congress = to=20 support the Unborn Victims of Violence Act, which would recognize unborn = children as victims under 68 federal laws dealing with crimes of = violence.=20

I was dismayed to learn that some members of = Congress=20 oppose this bill, and insist on adoption of a radically different = [version] that=20 says that such crimes only have one victim--the pregnant women.=20

This is not the same as what would happen under the = Feinstein amendment. They are=20

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wrong. On the night of August = 26, 1999, there=20 were two victims. I lived--but my daughter died. I lost a child, and my = son lost=20 the baby sister he had always wanted--but little Heaven lost her life.=20

It seems to me that any congressman who votes for = the=20 ``one-victim'' amendment is really saying that nobody died that night. = And that=20 is a lie.=20

Then we have the well-known case of Laci and Conner = Peterson in California that has been spoken of previously. This is a = statement=20 from Sharon Rocha, Laci Peterson's mother, and Conner Peterson's = grandmother.=20 She has spoken out often on this issue. This is a California case that = is well=20 known and has probably done as much to bring this up today on this floor = as=20 anything else we have examined.=20

This is from Sharon Rocha's statement. I will read = a=20 portion of it:=20

As you know, Laci and Conner were cruelly murdered. = In this=20 difficult time, my family is grateful that under California law the = murders of=20 Laci and Conner can both be prosecuted. But for the families of many = other=20 murder victims across the country, there can be no such comfort. Federal = law=20 does not recognize that these crimes have two victims.=20

So California law does recognize it.=20

When I became aware that Congresswoman Melissa Hart = was=20 working on a bill to correct this problem, I contacted her to express my = support. I asked her to name it ``Laci and Conner's Law'' in memory of = my=20 daughter and grandson. I am grateful to Congresswoman Hart, the = House=20 leadership, and the many congressmen, both Republicans and Democrats, = who have=20 agreed to support this common-sense legislation. I thank President Bush = for his=20 willingness to sign it into law.=20

The House of Representatives has shown their = support for=20 this law by approving it twice thus far, but the Senate has consistently = failed=20 to act. I call on every Senator to vote for this bill, so that the law = will do=20 justice for families of murder victims--families like mine. It is time = for the=20 Senate to stand up for innocent victims like Conner.=20

These are real stories. They are tough stories. But = they=20 speak to the situation in this country today. This type of crime happens = all too=20 frequently. Unfortunately, there are more cases that we could mention.=20

I wanted to put a real face on this issue for my=20 colleagues, and to ask them this simple question when they vote on the = Feinstein=20 substitute: How many victims are there? Is it one victim, or are there = two? That=20 is the real decision in regard to this amendment.=20

I urge a vote against the Feinstein amendment.=20

I yield the floor and reserve the remainder of my = time.=20

The PRESIDING OFFICER. The Senator from Kansas = yields the=20 floor.=20

Who yields time?=20

The Senator from California is recognized.=20

Mrs. FEINSTEIN. Mr. President, it is = extraordinarily=20 difficult to respond to the litany of atrocities the Senator from Kansas = has=20 just enumerated. I cannot help but wonder: What kind of animal can do = this to a=20 woman who is 7 or 8 or 9 months pregnant? I cannot help but wonder how = our=20 society produces men who would do this kind of thing to a woman. I = cannot help,=20 as a mother and a grandmother, to share with those for whom this is a = life scar=20 that will never, never heal.=20

And I understand it. I understand the need to want = to=20 punish, and understand the need to want to say this child--who is so = close to=20 birth, who would be capable of life outside of the womb at that = moment--is a=20 victim because, in fact, that child is a victim. I appreciate that and I = understand it.=20

One of the reasons at the beginning of my remarks I = said=20 this bill is so controversial is because definitions have different = meanings in=20 law. The controversial part in the underlying bill is the definition of = ``child=20 in utero'' and ``child, who is in utero'' because the bill language is: = ``means=20 a member of the species homo sapiens,'' in other words, a person, ``at = any stage=20 of development''--``any stage of development,'' not when the fetus is = what they=20 call ``quick,'' which means it is capable of movement; not when it is = viable,=20 which means it is capable of life outside the womb; but at ``any stage = of=20 development.''=20

This is what causes the problem in the law once you = set it=20 in the law. That is what is so distressing about this bill. Because = every Member=20 of this Senate wants to vote yes. Every Member of this Senate wants to = say:=20 Throw the book at that animal. Who could be so callous? Who could be = without any=20 morality? Who could be so cruel? Who could practice such a heinous = crime? Who=20 could punch a 9-month pregnant woman in the stomach to the extent that = it causes=20 the killing of her unborn child?=20

So I am there. I am there entirely. I am there = completely.=20 But, again, it is complicated because the definition we are working from = gives=20 rights at the point of conception. It does not differentiate. It does = not say=20 the 8-month-old baby or the 7-month-old baby, who is capable of life = today, is=20 what we are talking about. It says the recently fertilized egg is what = we are=20 talking about. That is the difference.=20

It is so hard, because you stand here and you = listen and=20 your heart goes out, and you think of these beautiful women and their = beautiful=20 children, and some animal comes at them, and in some cases kills them = both, in=20 some cases kills one, and in some cases kills the other. Sure, throw the = book at=20 him.=20

I will go a step further. I would give them a death = penalty=20 because they have taken two lives, and I do believe a child at that = period of=20 gestation is a life.=20

The problem is the bill language, which begins this = at the=20 point of conception.=20

Now, every single case presented on this Senate = floor this=20 morning is of a child who is viable outside of the womb. But the bill = covers=20 children that are not children; that are a day old in the womb, that are = at=20 conception. That is the problem we have with this bill. Because once you = give an=20 embryo, at the point of conception, all of the legal rights of a human = being,=20 and you have said that embryo, then, if it is lost to humankind, is = murdered,=20 you have created the legal case to go against Roe v. Wade in Federal law = for the=20 first time in history.=20

Now, California and the Laci Peterson case was = mentioned a=20 great deal. The prosecution of Scott Peterson will be conducted under = California=20 law, which has amended the definition of the penal code section = 187--which is=20 first degree murder--to refer to a fetus. But then other parts of law in = California only imposes criminal liability starting at 7 to 8 weeks of=20 gestation. So where the California law effectively covers exactly the = situation=20 that the Senator from Kansas is mentioning--all of those situations--it = takes=20 into consideration the period prior to 7 to 8 weeks of gestation.=20

And, in fact, many other State laws do as well.=20

The problem is this is a much more comprehensive = definition=20 that doesn't make any of the distinctions that are made by many of the = States=20 with respect to these criminal statutes. Many of them cover when the = fetus has=20 quickened, which means the fetus or the child is capable of movement, = and many=20 of them cover after viability.=20

This creates the situation where the embryo has the = rights=20 of a person. That is the problem for many of us.=20

The Senator from Ohio--and I think he knows I = respect him;=20 we have worked on so many things--says don't bring in the abortion = debate. But I=20 can't help but bring in the abortion debate because the proponents--not = the=20 Senator from Ohio, but other proponents--have said ``this is part of our = strategy--this is what we want to achieve.''=20

Then you get somebody like me and Senator = Boxer=20 and other cosponsors who want to protect a woman's right to control her = own=20 reproductive system, particularly in those early months, who read this = bill and=20 see the definition and say: ``There is the ball game--here we lose big = time.''=20

It is like you say to me, ``gotcha,'' because I = want to=20 punish that guy who beat that woman to death, who killed her unborn = child,=20 because I know that child is capable of life. You know that child is = capable of=20 life. But to give that right to a fertilized egg or an embryo is a = different=20 thing. Your bill gives that right to a fertilized egg or an embryo or a = zygote.=20

Then, when I go out and I look at what people have = said=20 about the bill, I see these statements, such as the statement of Mr.=20 Casey:=20

In as many areas as we can, we want to put on the = books=20 that the embryo is a person.=20

This bill puts on the books that an embryo is a = person, a=20 member of the species Homo sapiens, in bill language. This bill = establishes=20 exactly what the right-to-life movement wants to establish, that an = embryo is a=20 person. That=20

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sets the stage for a jurist to = acknowledge that=20 human beings at any stage of development deserve protection. Once you = have the=20 embryo being a human being, then that human being at any stage of = development=20 deserves protection--meaning deserves rights under the law, which this=20 establishes because it makes that embryo a victim--even protection that = would=20 trump a woman's interest in terminating a pregnancy. Think of that, that = would=20 trump a woman's interest in terminating a pregnancy.=20

Now, I am one who believes there should not be = abortion if=20 the baby is viable. I agree with Roe because it provides the woman = choice in the=20 first 3 months of a pregnancy where there is not viability. I lived and = grew up=20 at a time when abortion was illegal in California. I saw a good friend = commit=20 suicide because she was pregnant and in college. I saw women pass the = plate so=20 someone could go to Tijuana for an illegal abortion. You would say that = is not=20 relevant to this debate--``don't discuss it; don't bring it up in the=20 Senate--just think about the mothers and the babies who were killed.''=20

I want to do that, too. And I think about the = mothers and=20 the babies. I want to throw the book at those guys. And the death = penalty, too.=20 I don't have a problem with that because I believe by your actions, you = can=20 vitiate your own right to live. That has been true for me since 1971, as = well.=20 That has been my consistent position.=20

But once in a statute you create a fertilized egg = as a=20 human being with specific rights, the march to eliminate Roe v. Wade is = on its=20 way in statute. That is what is happening with this bill. That is what I = object=20 to. There is no reference to viability.=20

I have the list of what all the States do. They all = do=20 different things. Many of them recognize it. For example, seven States = impose=20 criminal liability starting when a fetus is quick, in other words, = capable of=20 movement: Florida, Georgia, Mississippi, Nevada, Oklahoma, Rhode Island, = Washington. Seven States impose criminal liability starting at the point = of=20 viability: Florida, Indiana, Massachusetts, Missouri, Oklahoma, South = Carolina,=20 Tennessee. So there are many differences. Different States do different = things,=20 even when they have this law.=20

But what this does, what this underlying bill does, = is say=20 from the moment of conception there is a baby and that baby is a human = being and=20 that baby has rights.=20

That is a problem in the criminal law. As the = Stanford law=20 professor pointed out, if a case comes before the court where, let's = say, a=20 woman was assaulted and she was 3 days pregnant, and the forensics could = establish that she was 3 days pregnant, and you are voir-diring people = for a=20 jury and you are telling them that there is a second victim, and it is a = fertilized egg that is 3 days old and there is a 20-year charge pending = or life=20 imprisonment pending for that 3- or 5-day-old fertilized egg, then this = is what=20 the law professor meant when he said: ``You are going to get the very = people who=20 are the most interested in protecting the woman being reluctant to go on = that=20 jury.''=20

Not every case under this law is going to be=20 post-viability, going to be like the cases that the Senator from Kansas = brought=20 forward, where I would say: ``Give the guy the death penalty.'' I = wouldn't have=20 a problem with that. They did terrible things, the acts of an animal. = But that=20 is not what this law says. That is the difference.=20

What we have tried to do is say: If you end a = pregnancy, if=20 you harm a pregnancy, the same penalties would apply that apply in the = House=20 bill and Senator DeWine's bill.=20

I wish this could have gone to the Judiciary. I = wish it=20 wasn't rule XIV. I wish I had an opportunity in committee, in markup, to = make=20 these points.=20

Let me go over once again, so that everybody is = crystal=20 clear on the point of the creation of a separate offense, where a = defendant=20 violates any of the enumerated Federal crimes, our bills are identical. = On the=20 provision that the separate offense is punished the same as the = violation of the=20 enumerated Federal crimes, our bill is identical. On the provision that = if the=20 separate offense harms or ends the pregnancy, the punishment is the same = as a=20 violation would be for the underlying crime: murder, manslaughter, or = assault,=20 as appropriate. Our bills are identical.=20

With respect to the provision of penalty for death = of a=20 fetus is a maximum life sentence, our bills are identical. With respect = to the=20 provision of penalty for harm to the fetus is a maximum 20-year = sentence, our=20 bills are identical. And both bills do not impose the death penalty. = Where our=20 bills are different--and this is important--is the definition of when = life=20 begins.=20

The underlying bill defines life as beginning at=20 conception.=20

(Mr. ALEXANDER assumed the Chair.)=20

Mrs. FEINSTEIN. Mr. President, we do not address = when life=20 begins. I just read Justice Blackmun's opinion in Roe v. Wade. It is=20 interesting, because he goes back to the Stoics, the Catholic Church, to = the=20 Middle Ages, and discusses the difference of opinion of when life = begins, the=20 difference of opinions in science. Then he reaches his conclusion that = because=20 these differences are so vast, the law generally does not directly = enjoin that=20 point of when life begins.=20

That is the problem we have here. That is the = dilemma the=20 Senate faces. This bill is on a fast track. This bill has passed the = House. This=20 bill has been subject to a Rule XIV, without a hearing, from the year = 2000. You=20 have heard the most poignant, disturbing, heartrending stories on this = floor. I=20 respond to them like everybody else does. But I also know if you give a=20 fertilized egg rights in the Federal law, it is going to have = repercussions=20 downline. If you declare in this bill you can prove a 1-day-old = fertilized egg=20 was a victim and therefore murdered, how do you turn around and say in = another=20 law you can proceed with embryonic stem cell research? You have the same = 1-day-old fertilized egg. If it is murder here, is it not murder there? = What are=20 the repercussions of doing that? They are enormous.=20

The other side doesn't talk about this. They talk = about=20 women who are 7 or 8 or 9 months pregnant. They talk about the most = heinous and=20 brutal assaults. But the bill does much more. The bill says a 1-day-old=20 fertilized egg is a member of the species Homo sapiens. Translation: It = is a=20 person. Translation: It is a human being.=20

That is the problem, and this Senate, before it = passes out=20 this bill, should understand it and should understand there is an = alternative,=20 and the alternative aims to impose the same penalties, but doesn't = create that=20 victim fertilized egg, 1 day old--by nobody's stretch a human = being--possible of=20 becoming a human being, but not a human being. I have live cells, but = they are=20 not capable of producing life.=20

But once the child, the fetus in the womb, is = capable of=20 living, that is a different story. I am the first one to admit that is a = different story. But everything in this bill, the underlying bill, goes = back to=20 the basic definition of what is being done here, and that is that = personhood,=20 life, is being given to a 1-day-old fertilized egg.=20

Now I have one child biologically, I have three=20 stepdaughters, and I have five grandchildren. I have seen close = friends--I know=20 the glory of motherhood. I know the catastrophe that takes place when = you lose a=20 child. I have had miscarriages, so I understand that. But then there is = the=20 march to turn back the clock to when I was in college and abortion was = illegal.=20 Then after college, when I went out into the world, I actually sentenced = women=20 convicted of abortion in the State of California in the State prison. I = saw the=20 terrible morbidity and the terrible things they did illegally in = back-alley=20 abortions. At that point, I said this is so terrible. Then Roe v. Wade = passed in=20 1973, and a woman could control her own reproductive system, = particularly in=20 that first trimester. I thought to myself, we should never go back to = the way it=20 was.=20

My concern about the underlying bill is it is the = first=20 bridge to take us back to the way it was because of the definition that = is in=20 this bill, which gives human rights to a 1-day-old fertilized egg in = utero. That=20 is the problem for me. That is the problem for a lot of us in the = Senate.=20 Whether it will be enough, I don't know.=20

I tried to perfect the bill. Remember, this was a = rule XIV.=20 We didn't have a chance to mark it up. I tried to perfect it. = Unfortunately, I=20 was not granted the usual privilege of being able to send a modified = amendment=20 to the=20

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desk. But the intent is=20

clear. I have made it crystal clear in my remarks. = We will=20 have the same penalties for the same crimes as the underlying bill. We = will=20 avoid one thing, and that is determining when life, for the purpose of = law,=20 actually begins.=20

I yield the floor. How much time do I have = remaining?=20

The PRESIDING OFFICER. The Senator has 23 minutes = 40=20 seconds.=20

Mrs. FEINSTEIN. Mr. President, I reserve the = remainder of=20 my time.=20

The PRESIDING OFFICER. The Senator from Ohio.=20

Mr. DeWINE. In a moment, I will yield to = my=20 colleague from South Carolina.=20

Mr. President, before I yield to my colleague, I = want to=20 respond very briefly to my colleague and friend from California in = regard,=20 again, to the question of abortion. My colleague is concerned--I = understand her=20 sincerity because she has expressed it many times on the Senate floor. I = don't=20 doubt that sincerity at all--that somehow this bill sets a precedent = regarding=20 abortion.=20

First of all, we all know statutes cannot overcome = the=20 Supreme Court decisions, constitutional law. We should not be concerned = about=20 what the statute will do. We particularly should not be concerned when = we know=20 many of the States have statutes very similar to what we propose to = enact today.=20 In fact, several of the States have had these statutes in place for up = to 30=20 years. They have not in any way changed or infringed on abortion rights. = Whatever one might think of abortion rights, these have not affected = them and=20 this bill will not affect them. To make sure of that, we put provisions = in this=20 statute, which I have read on the floor today, which make it crystal = clear they=20 will not in any way affect that. So we have precedent.=20

We have the fact that statutes cannot interfere = with=20 constitutional law, plus we have precedent of many years of experience = of State=20 laws not interfering with abortion rights. So there is just no reason = for=20 anybody, when they come to the floor to vote on this, to think this is = in any=20 way going to affect abortion rights at all.=20

My friend has talked about the fact that we follow = what I=20 believe 16 States have done when we begin to protect the unborn. Some = States=20 define it differently. My colleague has cited what California and some = States=20 do. They are defined differently. But we follow in this statute what = some others=20 States have done.=20

In our proposed statute, we use this language, and = I would=20 say it is not what my colleague, with all respect, has said. This is = what the=20 language is:=20

..... who is carried in the womb.=20

``Who is carried in the womb,'' that is the = language, the=20 precise term that is used, ``carried in the womb.''=20

As a practical matter, since this is a criminal = statute, we=20 all know that to prosecute under this statute, a prosecutor would have = to prove=20 beyond a reasonable doubt, to prosecute under this law, that there was = this=20 unborn child. They would have to prove the existence of the child. And = then they=20 would have to prove there was death or injury to the child beyond a = reasonable=20 doubt. They have to prove the existence, first of all, beyond a = reasonable=20 doubt, and then they have to prove the death or injury beyond a = reasonable=20 doubt.=20

It is not, with all due respect, a question of at = the=20 moment of conception that this protection, as a practical matter, would = kick in.=20 First, it has to be carried in the womb; second, you would have to be = able to=20 prove the existence and then prove there was injury or prove there was = death.=20 That is the practical application of the statute we propose to pass.=20

I yield to my friend and colleague from South = Carolina.=20

Mr. GRAHAM of South Carolina. Mr. President, how = much time=20 remains?=20

The PRESIDING OFFICER. Eleven minutes.=20

Mr. GRAHAM of South Carolina. Will the Chair notify = me when=20 I have used 4 minutes?=20

The PRESIDING OFFICER. Yes.=20

Mr. GRAHAM of South Carolina. Mr. President, I wish = to=20 speak to how the bill was drafted and why.=20

Senator DeWine articulated it well. You = have to=20 prove the pregnancy, and we defined the pregnancy like 16 other States. = That is=20 the dominant way of defining the child for the purpose of this statute. = Thirteen=20 States have a different view of it. In California, I think the law is at = 6=20 weeks. If you can prove the child is beyond 6 weeks--not viable but = beyond 6=20 weeks--the law kicks in.=20

In 1999, when we first drafted this = statute--Senator=20 DeWine was carrying it in the Senate, I carried it in the = House, and we=20 are finally coming together to have a vote--it never made sense to me, = if you=20 believe this is not about abortion--because it is not; we wrote it so it = is=20 not--why would you give a criminal a break who destroyed a family's life = in two=20 ways, not one?=20

You are not going to prosecute medical researchers = under=20 this statute. You have to hurt the mother. This is not about medical = research.=20 It is not about abortion. It is about criminals who attack pregnant = women.=20

Why would you give the criminal a break at 3 weeks? = You=20 could prove the baby has been around for 3 weeks. The criminal just = totally gets=20 away with it.=20

The Feinstein amendment--as much as I like Senator=20 Feinstein, and she is truly one of my favorites--nobody goes = this way=20 because this is not the way you would want to=20

go if you are prosecuting criminals. You do not = want to=20 ignore the reality of what happened to this family and to these victims. = This is=20 not about abortion. If it was abortion law, you would not have any = prosecutions=20 except until the late terms of the abortion. Why would you let a = criminal do=20 that? This is not about a mother's right to choose. Under the statute, = you=20 cannot prosecute the woman at any time. You cannot do anything about = abortion=20 rights because the statute protects lawful abortions.=20

For 30-something years in California, they had the = ability=20 to prosecute criminals who attacked pregnant women and have Roe v. Wade = rights.=20 Look in the phonebook anyplace in California and you will find people = who will=20 provide a lawful abortion. Look at the criminal law and you will find a = statute=20 that allows people to be put in jail who attack a pregnant woman and do = damage=20 to her unborn child at the 6-week period.=20

My point is, when criminals attack pregnant women, = don't=20 play this game of the abortion debate. Don't bring it over here. The = reason we=20 voted 417 to 0 in the House was to prevent an execution of a pregnant = woman at=20 the earliest stages of pregnancy. It does no good to kill the chance of = that=20 child to grow to render justice to the mother.=20

With a vote of 417 to 0, the House adopted the same = definition as this statute because the purpose of that statute was to = prevent=20 the State from executing a woman who we know to be pregnant at the early = stages=20 of a pregnancy. The reason being, it does no good. It does not advance = Roe v.=20 Wade. It just does something you do not need to do to render justice. = You do=20 need the ability to bring two prosecutions at the earliest stages of = pregnancy=20 to render justice for those who choose to violently assault pregnant = women. No=20 medical researcher is going to be harmed. We will have the stem cell = debate. The=20 Roe v. Wade rights that exist today are not going to be eroded. They = have=20 existed in conjunction with these statutes for years and years, and that = debate=20 will go on for years and years. But here is what is likely to happen.=20

The PRESIDING OFFICER. The Senator has used 4 = minutes.=20

Mr. GRAHAM of South Carolina. There will be, = unfortunately,=20 human nature being what it is, another assault against a pregnant woman = where=20 Federal jurisdiction would exist if we have this statute. It is going to = happen=20 because people are mean, people are cruel, and they need to be dealt = with when=20 they are mean and cruel.=20

The Senate enhancement option has been rejected by=20 everybody who looked at this because it does not render justice. It = creates a=20 legal fiction that is not necessary and destroys the whole purpose of = this=20 statute.=20

I mentioned the Arkansas case. Three teenagers were = prosecuted for beating up a pregnant woman for the purpose of making = sure one of=20 them did not have to pay child support. They are not on death row. I = misspoke.=20 One of them received 40 years, one received life imprisonment. It was a = capital=20 statute, but it was not a death penalty case. I was wrong. I apologize.=20

The PRESIDING OFFICER. The Senator used 5 minutes.=20

Mr. GRAHAM of South Carolina. Five more seconds.=20

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The Laci Peterson case is a death penalty case = because=20 there are two victims.=20

All we are saying is Federal law should address = reality.=20 When Michael Lenz lost his wife in the Oklahoma City bombing incident, = he also=20 lost his son, Michael Lenz III. All I am asking for is that justice be = rendered=20 in cases such as that. When somebody chooses to destroy a family--the = mother and=20 the unborn child--let them pay a severe price, and let's debate abortion = another=20 day, another time, and not interject it into a statute where it should = not be=20 interjected.=20

I yield the floor.=20

The PRESIDING OFFICER. The Senator from California. =

Mrs. FEINSTEIN. Mr. President, could you give us = the time=20 remaining on both sides, please?=20

The PRESIDING OFFICER. Yes. The Senator from = California has=20 23 minutes remaining. The other side has 5 minutes remaining.=20

Mrs. FEINSTEIN. I thank the Chair. Mr. President, = this is a=20 difficult discussion because I am very fond of both the Senators with = whom I am=20 debating. However, I certainly do not agree with the statement the = Senator from=20 Ohio just made with respect to the definition that is in the bill.=20

I will read the definition that is in the bill. The = term=20 ``a child who is in utero'' means:=20

A member of the species Homo sapiens at any stage = of=20 development who is carried in the womb.=20

The one thing neither Senator DeWine nor I = know is=20 how fast the egg gets to the womb, but I think it is pretty fast.=20

I just had a note passed to me by someone more = erudite than=20 I. I think we can all put this in our lexicon.=20

It takes about 7 days for a fertilized egg to get = to the=20 womb, but there is also the belief the underlying bill applies at the = moment of=20 conception. Let us say the egg gets to the womb in 7 days. The problem = those of=20 us on this side of the aisle have with the bill is it gives the status = of a=20 human being to that egg as soon as it is in the womb, and that creates = for the=20 first time in Federal criminal law a scenario whereby if that egg is = hurt,=20 criminal assault charges, criminal manslaughter charges, criminal murder = charges=20 can be brought because that egg, at any stage of development--they do = not use=20 trimesters, they do not use any way of deciding the development--at any = stage of=20 development, that egg in utero is a member of the species Homo sapiens, = and that=20 is where this, for criminal purposes, becomes so difficult.=20

That is why the letter from the professor from = Stanford,=20 who runs the criminal prosecution unit at Stanford Law School, becomes = so=20 relevant, because let's say I am in a jury pool and a woman has been = beaten up=20 and she was 7 days pregnant--at that moment it is a fertilized egg--and = she lost=20 the fertilized egg, and I was told the penalty would be an additional 10 = years=20 in prison because she lost that egg. Well, I would have to make a = decision as to=20 whether I want to be on that jury. So what the professor says is this = can=20 actually work contrary to our intent, particularly in these early cases. =

He also said he suspects it is dependent on the=20 administration as to whether early cases will be brought to a court or = not, but=20 the point is we cannot make that decision. We cannot say this is only = going to=20 be used when a mother is 7 months, 8 months, or 9 months, pregnant. In = the=20 horrific circumstances described by the Senator from Kansas, which got = all of=20 our hearts beating faster, we cannot assume that all cases will be of = that type.=20 The legislation clearly says for the purposes of definition the child is = defined=20 from the point it is in the womb at any stage of development as a child, = as a=20 person, with rights. That is the dilemma and that is why we have tried = to craft=20 a bill that does not do that, that says if someone harms or ends a = pregnancy,=20 they are subject to the same penalties.=20

This body is going to have to decide--and it is a = very hard=20 question. I think this is one of the most controversial bills we have = had. This=20 is probably why this bill has been around for 5 years now. I think it = had a=20 hearing in Judiciary in 2000. It has not had a hearing since. It has = been rule=20 XIVed to the floor.=20

Again, I wanted to make some small changes--I was = not=20 permitted to do so--by modifying my amendment. I believe, and my chief = counsel=20 believes, this bill provides the same penalties. The one difference is = the=20 definition is different. We use harm or end pregnancy, rather than that = the=20 unborn child becomes a child--well, that a child in utero and child who = is in=20 utero means a member of the species Homo sapiens, at any stage of = development,=20 who is carried in the womb. That is the problem and=20

that is where for those of us who want to protect a = woman's=20 right to choose and who read the statements that are put out by the far = right,=20 we take them at their word that this is where they are going.=20

I did not make this up. This is a rather well-known = statement. It clearly says, ``In as many areas as we can, we went to put = on the=20 books,''--this statute on the books--``that the embryo is a person ..... = ''=20

For me, I am also very interested in being able to = see that=20 there are prudent regulations and Federal controls that will allow = embryonic=20 stem cell research. Well, if it is murder of a 7-day-old fertilized egg, = then it=20 is murder if it is used in stem cell research as well. That is where I = think=20 this is going.=20

There are also statements by people who want to ban = embryonic stem cell research that also say this is the strategy. So I = say, why=20 get into it at all? Why not just say, if someone ends or terminates a = pregnancy,=20 the same penalties will apply. That is what we have tried to do. That is = the=20 intent of what we are doing.=20

I think the votes are very close. At this point, I = will=20 yield the floor, but I reserve the remainder of my time.=20

Mr. DeWINE. Mr. President, how much time = is=20 remaining?=20

The PRESIDING OFFICER. Five minutes.=20

Mr. DeWINE. And the Senator from = California?=20

The PRESIDING OFFICER. Fifteen minutes.=20

Mr. DeWINE. I suggest the absence of a = quorum,=20 with the time to run equally on both sides.=20

Mrs. FEINSTEIN. Equally divided.=20

The PRESIDING OFFICER. Without objection, it is so = ordered.=20 The clerk will call the roll.=20

The assistant legislative clerk proceeded to call = the roll.=20

Mr. DeWINE. Mr. President, I ask unanimous = consent=20 that the order for the quorum call be rescinded.=20

The PRESIDING OFFICER. Without objection, it is so = ordered.=20

Mr. DeWINE. We are getting close to the = end of=20 this debate. I think there are just a few points about this amendment I = would=20 again like to stress. One is this whole debate today has nothing at all = to do=20 with abortion. I talked about that. I will not belabor the point. We = have made=20 that clear in the language we have written. It is set down in the = precedent of=20 States that have passed similar legislation. It has not had anything to = do with=20 abortion.=20

If Members of the Senate truly believe what the = vast=20 majority of the American people believe, and that is there are two = victims, then=20 they have to turn down the well-intended Feinstein amendment. The = Feinstein=20 amendment tries to provide for enhanced penalties. I believe it is = clear, from=20 what I have spelled out a few moments ago, she has failed to do that, = that there=20 are no enhanced penalties. Even if there were, it is a contortion of the = law and=20 logic to deny the fact that when a pregnant woman is violently attacked = and she=20 loses her child, for the law to say we refuse to recognize there is a = second=20 victim, and=20

that is what the Feinstein amendment, = unfortunately, says.=20 The Feinstein amendment denies the fact there is a second victim.=20

We have heard on the Senate floor today, time and = time=20 again, these horrible stories that Senator Feinstein and I--our = hearts=20 go out to these victims. Everyone's heart does. But how can we say to = these=20 families that these children who were lost, sometimes the grandchildren = who were=20 lost, were really not, in the eyes of the law, victims?=20

In the eyes of everyone else in society they are = victims.=20 Shouldn't the law also recognize them as victims? That is what we are = saying=20 with our bill. Unfortunately, the Feinstein amendment denies them that.=20

I reserve the remainder of my time.=20

Mr. KYL. Mr. President, I am pleased that the = Senate is=20 debating this sensible measure, and I certainly hope that the outcome = will be=20 the rejection=20

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of the two amendments and = passage of the=20 underlying bill. Such an outcome will lead immediately to the enactment = of the=20 Unborn Victims of Violence Act, as the legislation has already passed = the House=20 and the President has stated that he will sign it.=20

The Unborn Victims of Violence Act would recognize = an=20 unborn child as a victim when he or she is killed or injured during the=20 commission of a Federal or military crime. The gist of this debate is = the=20 question of whether there are one victim or two in such instances. = Polling=20 suggests that upwards of 80 percent of the American people believe that = there=20 are two victims, a view no doubt reinforced by the well-known case of = Laci and=20 Connor Peterson. It has been noted that when definitive evidence of foul = play in=20 that case came to light, two bodies washed up on the shore, not one. The = Unborn=20 Victims of Violence Act would codify that common sense observation in = Federal=20 law.=20

Opponents of the bill contend that the bill's ``two = victims'' premise is ``unprecedented,'' but 29 State laws--including the = law in=20 California, where Laci and Connor Peterson were killed--relfect that = exact=20 understanding of what merits punishment when a violent crime is = committed=20 against a woman and her unborn child. It is the ``one victim'' idea the=20 Feinstein amendment would inscribe in law that would depart form the=20 understanding embedded in the State laws addressing this question.=20

Finally, I sincerely hope that my = colleagues--whatever=20 their views on the question of one victim versus two victims--will = firmly reject=20 the amendment offered by the senior Senator from Washington State. I am = very=20 proud of my record of support for victims of domestic violence, and I = believe=20 that some of the ideas contained in the Murray amendment merit our=20 consideration.=20

But passing the amendment we are presented with = today would=20 be a serious mistake. First, I must note that the Murray amendment was = obviously=20 drafted in haste because it contains serious technical flaws--not the = least of=20 which is a provision that would--as I understand it--give an abusive = family=20 member the same rights as a victim!=20

The Murray amendment would create an unpaid leave = provision=20 that is distinct from the provisions contained in the Family Medical = Leave Act,=20 FMLA, and State laws. This new leave provision would apply to employers = with as=20 few as 15 employees--compared to 50 for FMLA. FMLA applies to workers = who have=20 been employed for at least a year, but the proposed Murray leave program = has no=20 minimum requirements for length of service. Moreover, under this = amendment,=20 domestic violence leave could be taken without advance notice, and = without=20 corroborating evidence beyond the employee's own sworn statement. Given = the=20 extraordinary degree of uncertainty such a regime could create for = employers,=20 Congress must proceed cautiously here. To pass the Murray amendment = today would=20 be to flout that imperative.=20

I strongly support the unamended version of this = bill.=20

Mr. LEAHY. Mr. President, acts of violence against = women=20 are always abhorrent, but they are especially disturbing when committed = against=20 pregnant women. When a violent crime causes injury to a pregnant woman = that=20 results in a miscarriage or other damage to the fetus, we all share the = desire=20 to ensure that our criminal justice system responds decisively and = firmly to=20 exact appropriate punishment. This is not an issue on which you will = find any=20 disagreement among Members of Congress, no matter their party = affiliation or=20 whether they are pro-choice or anti-abortion. Protecting pregnant women = and=20 their families from violence is a serious and compelling problem that = deserves=20 to be elevated above political agendas and partisan politics.=20

Today we consider a bill that proposes a new = Federal crime=20 to punish conduct that violates a list of over 60 existing federal = crimes and=20 ``causes the death of, or bodily injury to, a child, who is in utero.'' = The=20 terms ``a child, who is in utero'' and ``unborn child'' are defined in = this=20 proposal to be ``a member of the species homo sapiens, at any stage of=20 development.'' Through this proposal, we will be forced to revisit the = divisive=20 political debate about when human life begins and what is meant by these = terms--whether, for example, the term ``any stage of development'' is = intended=20 to cover an unfertilized human egg or a zygote, and how far away from = viability=20 the proposal is designed to move the federal definition of a ``person.'' =

Generally, our Federal and State criminal laws only = penalize conduct that affects a person who was born alive. That does not = mean we=20 cannot or should not go further. I support additional punishment if a = violent=20 crime against a pregnant woman causes her to miscarry or otherwise = injures the=20 fetus. Senator Feinstein will offer an amendment on this point, = which I=20 support, and which I will discuss in a moment.=20

While no other Federal criminal statute identifies = a fetus=20 as a distinct victim of crime, this does not mean that a fetus is left=20 unprotected under our criminal laws. The Justice Department pointed out = the=20 obvious, in a letter dated September 9, 1999, to then-Chairman of the = House=20 Judiciary Committee, Representative Hyde. That letter states = that=20 ``[b]ecause the criminal conduct that would be addressed . . . is = already the=20 subject of federal law (since any assault on an `unborn child' cannot = occur=20 without an assault on the pregnant woman), [the bill] would not provide = for the=20 prosecution of any additional criminals.'' As Ronald Weich, a former = prosecutor=20 and former Special Counsel to the Sentencing Commission, noted in his = February=20 2000 testimony, defendants whose violent attacks against pregnant women = resulted=20 in harm to a fetus have been prosecuted, and thus ``it is very clear = that=20 criminal liability may be imposed under current federal law.''=20

Moreover, the Federal Sentencing Guidelines already = provide=20 a sentencing enhancement of two levels where the defendant knew or = should have=20 known that the victim was a ``vulnerable victim,'' a term that is = defined as=20 someone who is unusually vulnerable due to age, or physical or mental = condition.=20 Guidelines Manual, =A73A1.1(b)(1). This provision has been used to cover = violent=20 crimes against pregnant women. Mr. Weich described several cases in = which a=20 pregnant woman was treated as a vulnerable victim, resulting in = enhancements and=20 upward departures in the applicable guideline sentencing ranges for the=20 defendants. Nevertheless, if there is any question about the application = of=20 these enhancements in violent crimes against pregnant women, we should = clarify=20 that matter promptly.=20

Respectfully, it seems to me that this bill has not = been=20 crafted to find that common ground, nor designed to provide an effective = means=20 to prosecute or prevent violence against pregnant women.=20

First, this bill unnecessarily injects the abortion = debate=20 into our national struggle against violence towards women. The Supreme = Court in=20 Roe v. Wade held that ``the word `person', as used in the Fourteenth = Amendment,=20 does not include the unborn.'' This bill purposely employs terms = designed to=20 undermine a woman's right to choose by recognizing for the first time in = Federal=20 law the legal rights of a person as applied to the earliest stages of=20 development of a fetus, an embryo or an egg.=20

Second, the National Coalition Against Domestic = Violence=20 has warned that a consequence of the bill is that battered women who are = financially or emotionally reliant on the batterer may be less likely to = seek=20 appropriate medical attention if doing so could result in the = prosecution of the=20 batterer for an offense as serious as murder. We should pay attention to = the=20 experts about the consequences of legislative proposals such as this = one,=20 particularly when the experts say this bill could have devastating = effects for=20 victims of domestic violence.=20

Finally, the bill ignores the problems of domestic=20 violence, sexual assault and other forms of violence against women; in = fact, the=20 UVVA does not even mention the woman. In short, this bill ignores the = reality=20 that an attack that harms a pregnancy is inherently an attack on a = woman.=20

The senior Senator from California will offer a = substitute=20 amendment to S. 1019 that does what the Unborn Victims of Violence Act = purports=20 to do without wading into the political waters of the abortion debate. = This=20 amendment,=20

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commonly referred to as the = Motherhood=20 Protection Act, creates a separate, additional Federal criminal offense = for harm=20 to a pregnant woman. Under this legislation, the prosecutor may (1) = charge the=20 defendant with an offense against the woman, and (2) subsequently charge = the=20 defendant with the separate offense of interrupting--e.g., causing brain = damage=20 to the child--or terminating the normal course of her pregnancy. A = defendant=20 would face a maximum of 20 years in prison for interrupting the = pregnancy and a=20 maximum of life imprisonment for terminating the pregnancy. Such = sentences would=20 be in addition to any penalties for the underlying federal crime. These = terms of=20 imprisonment reflect the same sentences included in the UVVA.=20

Senator Feinstein's amendment addresses = harm to a=20 pregnant woman, while recognizing the loss she suffers through injury to = the=20 fetus. By excluding the language in the UVVA that defines a human to = include a=20 fetus, the Feinstein amendment accomplishes the stated goal of the UVVA = without=20 undermining reproductive rights or ignoring violence against women.=20

The senior Senator from Washington will offer an = amendment=20 in support of domestic violence victims, which I am proud to cosponsor. = The=20 Murray amendment would authorize HHS grants to nonprofit agencies to = help=20 service providers design and implement intervention programs for = children who=20 witness domestic violence. The grants would encourage domestic violence = agencies=20 and schools to work together to address the needs of affected children. = The=20 amendment would also establish entitlement standards and guidelines for=20 employees to use emergency leave to address domestic and sexual = violence.=20

Unlike UVVA, these two amendments address the issue = of=20 violence against women. If we are serious about addressing this problem = and=20 trying to end the violence, then we should put a stop to the partisan = politics=20 surrounding UVVA and vote for these amendments.=20

When it has focused on the real issue of violence = against=20 women, Congress has taken aggressive action to address the problem of = violence=20 against women. Congress made great strides in the fight against domestic = violence by passing the bipartisan Violence Against Women Act as a part = of the=20 1994 Violent Crime Control and Law Enforcement Act. Senator = Biden and=20 Senator Hatch contributed considerable time and leadership to = achieve=20 the enactment of VAWA, which marked a turning point in our Nation's = effort to=20 address domestic violence and sexual assault.=20

This landmark legislation created federal domestic = violence=20 offenses with severe penalties to hold offenders accountable for their=20 destructive and criminal acts of violence. Since the end of 1994, the = Department=20 of Justice has brought over 1000 VAWA and VAWA-related indictments and = awarded=20 over one billion dollars in VAWA grants to communities working hard to = combat=20 violence against women and to help cure the pain and suffering that = results from=20 it.=20

I am proud to say that Vermont was the first State = in the=20 country to apply for and receive funding under VAWA, and I have seen the = way in=20 which groups such as the Vermont Network Against Domestic Violence and = Sexual=20 Assault have worked effectively to stem violence against women and = children and=20 to assist those who have suffered from it.=20

I am also pleased that the conference report on the = AMBER=20 Alert and PROTECT Acts included Leahy-Kennedy-Biden legislation to = establish a=20 transitional housing grant program within the Department of Justice to = provide=20 victims of domestic violence, stalking, or sexual assault the necessary = means to=20 escape the cycle of violence. It amends the Violence Against Women Act = of 1994=20 to authorize $30 million for each of fiscal years 2004-2008 for the = Attorney=20 General to award grants to organizations, States, units of local = government, and=20 Indian tribes. The grants will help victims of domestic violence, = stalking, or=20 sexual assault who need transitional housing or related assistance as a = result=20 of fleeing their abusers, and for whom emergency shelter services or = other=20 crisis intervention services are unavailable or insufficient. President = Bush=20 signed the conference report into law on May 7, 2003.=20

We know that violence against women pervades all = areas of=20 our country. It makes no difference if you are from a big city or a = rural town;=20 domestic violence and other violence against women can be found = anywhere. This=20 is a serious issue. We owe this country a serious response, not a debate = on=20 ideological proposals that ignore effective programs designed to help = women=20 crime victims. I urge my colleagues to join me in supporting the = Feinstein and=20 Murray amendments, and in voting against the Unborn Victims of Violence = Act.=20

Mr. FEINGOLD. Mr. President, I will oppose H.R. = 1997, the=20 Unborn Victims of Violence Act, and instead support an alternative = offered by=20 Senator FEINSTEIN, and I would like to take a moment to explain = why.=20

I join with Senator DEWINE and the = supporters of=20 this bill in condemning acts of violence against women, including = pregnant=20 women. The Unborn Victims of Violence Act would make it a Federal crime = to=20 injure or kill a fetus during the commission of a Federal crime against = a=20 pregnant woman. This separate offense would be punished as if injury or = death=20 had occurred to the pregnant woman. I believe that acts of violence = against=20 pregnant women are deplorable and should be punished severely. Congress = has=20 taken and should continue to take steps to protect women from violence = and=20 prosecute those who attack them. But I am concerned that by recognizing = the=20 fetus as an entity against which a separate crime can be committed, the = Unborn=20 Victims of Violence Act may undermine women's reproductive rights as set = forth=20 by the Supreme Court in Roe v. Wade.=20

That is why I plan to support a sound alternative, = the=20 Motherhood Protection Act, offered by my colleague Senator = FEINSTEIN. the=20 Motherhood Protection Act would accomplish the same stated goal as the = Unborn=20 Victims of Violence Act: establishing an additional, separate Federal = offense=20 for harm to a pregnant woman. It carries the same penalties as H.R. = 1997: a=20 maximum 20-year sentence for harm to a pregnancy and a maximum life = sentence for=20 termination of a pregnancy.=20

I believe that the Feinstein substitute is the = better=20 approach because it accomplishes the same goal that H.R. 1997 seeks to = address=20 without delving into the controversial issue of defining when human life = begins.=20 Regardless of our views on that highly charged question, we can agree = that=20 violence against pregnant women is a heinous crime and should be = punished to the=20 fullest extent of the law. That is why I will oppose H.R. 1997 and = instead=20 support the Feinstein substitute.=20

I yield the floor.=20

The PRESIDING OFFICER. The Senator from California. =

Mrs. FEINSTEIN. Mr. President, how much time does = the other=20 side have remaining?=20

The PRESIDING OFFICER. They have 1 minute 58 = seconds.=20

Mrs. FEINSTEIN. Mr. President, I agree that the = debate is=20 concluding, and I thank the Senator from Ohio. This is a serious subject = and it=20 is a difficult subject and it is a controversial subject. I appreciate = the=20 manner in which the debate has been conducted, because I think it has = been=20 conducted in the best tradition of the Senate, with the exception of = your not=20 letting me modify my amendment. But I will only interpret that as caused = by the=20 fact that the other side is worried and doesn't want my amendment to get = any=20 better, so they refuse to let me modify it.=20

We have two different bills here. I think we have = expressed=20 the differences. The underlying bill does recognize the unborn at any = stage of=20 development, as long as they are in the womb, as a human being, as a = victim and=20 with rights.=20

My bill, rather than enter into where life begins, = at what=20 point in this gestation period life actually begins enough to say this = is a=20 person with rights--it doesn't get into that. It takes the penalties and = does a=20 double charge and says if the predicate crime is present, and you carry = out the=20 crime to harm or end the pregnancy, it is a double charge so you are = charged=20 accordingly.=20

The hard part of this is that we all know there has = been a=20 march to turn back Roe v. Wade. Every Member of=20

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this Senate knows it. We have = had vote after=20 vote after vote. Since 1994, the pro-choice side has lost most of the = votes.=20 That is irrevocable fact. We know the march is on.=20

So those of us who are pro-choice naturally are = going to=20 look at laws to see if those laws can constitute, in addition to what = they are=20 supposed to do, any kind of bulwark from which to attack Roe.=20

Because of the definition of a child in utero = being, at any=20 stage of development, a member of the species Homo sapiens, we come to a = conclusion. We asked the question, first, why do they use that = definition? So=20 many States have passed laws and many of them have used different = definitions,=20 why do they select that definition?=20

Answer, because it accomplishes the purpose of = determining=20 that once a fertilized egg is in the womb, it becomes a human being. = That, then,=20 buttresses statements such as this one on the easel.=20

This isn't the only statement. I can give another = statement=20 by another professor which I used in my opening remarks. It is a = statement of a=20 Republican strategist. Professor Charo is at the University of = Wisconsin. She=20 made the statement recently:=20

If you can get enough of these bricks in place, = [meaning=20 laws] draw enough examples from different parts of life and law where = embryos=20 are treated as babies, then how can the Supreme Court say they are not? = This is,=20 without question, a conscious strategy.=20

So if you believe it is without question a = conscious=20 strategy--and I, based on the history of how the erosion against Roe is = being=20 waged, piece by piece, bit by bit, law by law, action by action, I = believe it is=20 a conscious strategy. The hard part about it for me is that you feel = this=20 terrible empathy for women who have been the victims and who are 7, 8, 9 = months=20 pregnant. That has been every case that has been before us today, it has = reached=20 that stage of gestation, where you know your child can exist outside of = the womb=20 and some animal has taken the child away from you by beating you to the = point=20 where they have killed the child and in many of the same cases--the = Senator from=20 Kansas illustrated today--killed the mother as well. We want to throw = the book=20 at that perpetrator. And we do. We believe our bill is clear, and we = believe our=20 bill will stand the test of time.=20

So we ask the Senate to support the substitute = amendment=20 and turn down the underlying bill. I reserve the remainder of my time. I = yield.=20

The PRESIDING OFFICER. The Senator from Ohio.=20

Mr. DeWINE. Mr. President, I will again = point out=20 for those who are worried about some great precedent being set here in = regard to=20 abortion that over half the States have similar laws and many of them = are=20 absolutely identical to what we are writing. So people should not be = concerned=20 about this.=20

The PRESIDING OFFICER. Who yields time?=20

Mrs. FEINSTEIN. I yield but I am reserving the = remainder of=20 my time. I may have something to say in a minute or so, and I may not.=20

Mr. President, I suggest the absence of a quorum.=20

The PRESIDING OFFICER. The clerk will call the = roll.=20

The assistant legislative clerk proceeded to call = the roll.=20

Mrs. FEINSTEIN. Mr. President, I ask unanimous = consent that=20 the order for the quorum call be rescinded.=20

The PRESIDING OFFICER. Without objection, it is so = ordered.=20

Mrs. FEINSTEIN. Mr. President, I think I have just = a short=20 time left. How much time do I have?=20

The PRESIDING OFFICER. Five minutes.=20

Mrs. FEINSTEIN. Mr. President, for those who might = have=20 gotten involved in this late, I would like to use the 5 minutes to say a = few=20 things.=20

The first is that this is one of the most difficult = areas=20 in which to legislate because it is filled with so much emotion and so = much=20 difference of opinion. It is one of those great cultural problems that = exists=20 out there in our real world, as opposed to this world, where human lives = are=20 very much affected.=20

On the one hand, you have the situation the Senator = from=20 Kansas, the Senator from Ohio, and the Senator from South Carolina = pointed=20 out--situations where you have women who have terrible things done to = them. It=20 is just so hard for us to realize how that can happen, that any man can = be that=20 callous to beat to death a woman who is 7, 8, or 9 months pregnant; can = use a=20 knife; can cut her fetus when you know that child is capable of life.=20

I understand what drives this desire. What drives = the=20 desire is to see that there is equal punishment for the taking of that = life,=20 which I believe is a life because it can sustain life. Its pulmonary = functions=20 have cleared out in the last few weeks of pregnancy and those kinds of = things.=20 But basically it is a baby, and basically it is viable. I understand all = of=20 that.=20

When you get down to definitions, and when you look = at the=20 statute itself, what concerns many of us and makes us understand we are = dealing=20 with something much more than just what I have said is the definition of = a child=20 in utero who is made by this bill a person, a member of the species Homo = sapiens=20 at any stage of development as long as it is in the womb--that could be = 3 days,=20 I am now told, from conception--you are not only creating criminal law = for the=20 woman who can produce a child who can live and whose life is taken away = but we=20 are creating a sanction for an egg that is fertilized that may be 3 days = old.=20 That sanction can be murder and carry with it the full weight of = murdering=20 another human being. It is a very heavy sanction. You are giving rights = to that=20 newly conceived egg of a full person.=20

There are many of us who say this is another way of = doing=20 this. That is just saying if you harm or end a pregnancy, these full = charges=20 will revert.=20

The reason we do it that way is because it exists = all=20 around us. The fact that there is a reason for how this child in utero = is=20 defined and the reason is, as I have tried to elucidate--and there are = many=20 other cases--``In as many areas as we can, we want to put on the books = that the=20 embryo is a person.''=20

Why do they want to do that? It is simple. They = want to do=20 it because if we legislate, and the Federal crime is that if a 3-day-old = egg is=20 a person and has rights, then abortion under this same context is murder = or=20 manslaughter or assault. Full rights of a person are given.=20

I think that is a problem when you codify it in = statute.=20 This body is then saying: Yes, we agree. Therefore, a case can be = brought=20 against abortion of any kind at any time and also against embryonic = stem-cell=20 research that some of us believe is the new horizon of medicine, which = is=20 capable of finding cures for Parkinson's and Alzheimer's, and juvenile = diabetes.=20

The PRESIDING OFFICER. The Senator's time has = expired.=20

Mrs. FEINSTEIN. Just to sum up, I hope Members of = the=20 Senate will vote for the substitute amendment and against the underlying = bill.=20

I thank the Chair. I thank the distinguished = Senator from=20 Ohio. It has been a very interesting morning.=20

The PRESIDING OFFICER. The Senator from Ohio.=20

Mr. DeWINE. Mr. President, I thank my = colleague=20 from California. This has been a very good debate. No one in the Senate = Chamber=20 cares more about the victims we have been talking about than my = colleague. I=20 salute her for her compassion. I salute her for all the great work she = does in=20 this Chamber.=20

Three points: This bill has nothing to do with = abortion. We=20 shouldn't fear it. People who are on either side of abortion should not = fear=20 this bill. The States have already passed laws similar to this. They = have not=20 affected abortion. That is point No. 1.=20

Point No. 2: The Feinstein amendment denies that = there is a=20 second victim. If you care that there is a second victim, if you care = about=20 justice, don't vote for the Feinstein amendment.=20

Point No. 3: The Feinstein amendment is drafted,=20 unfortunately, so there is no penalty for the killing or the injuring of = the=20 child.=20

That is a problem. I don't think anyone intends for = that to=20 be the case in the sense of voting that way. If you vote for the = Feinstein=20 amendment, you are denying that there is a second victim. You are also = denying=20 that there will be any penalty for the killing or the injuring of that = victim.=20 That is what a vote for the Feinstein amendment would do. I ask my = colleagues to=20 vote no on the Feinstein amendment.=20

I thank the Chair. I yield the floor.=20

The PRESIDING OFFICER. All time has expired.=20

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The question is on agreeing to the amendment.=20

Mr. DeWINE. Mr. President, I ask for the = yeas and=20 nays.=20

The PRESIDING OFFICER. Is there a sufficient = second?=20

There is a sufficient second. The clerk will call = the roll.=20

The legislative clerk called the roll.=20

Mr. REID. I announce that the Senator from Delaware = (Mr.=20 BIDEN) is absent attending the funeral of his wife's grandmother. =

The PRESIDING OFFICER (Mr. CRAPO). Are there = any=20 other Senators in the Chamber desiring to vote?=20

The result was announced--yeas 49, nays 50, as = follows:=20

[Rollcall Vote No. 61 Leg.] YEAS--49

Akaka=20

Baucus=20

Bayh=20

Bingaman=20

Boxer=20

Byrd=20

Cantwell=20

Carper=20

Chafee=20

Clinton=20

Collins=20

Conrad=20

Corzine=20

Daschle=20

Dayton=20

Dodd=20

Dorgan=20

Durbin=20

Edwards=20

Feingold=20

Feinstein=20

Graham (FL)=20

Harkin=20

Hollings=20

Inouye=20

Jeffords=20

Johnson=20

Kennedy=20

Kerry=20

Kohl=20

Landrieu=20

Lautenberg=20

Leahy=20

Levin=20

Lieberman=20

Lincoln=20

Mikulski=20

Murray=20

Nelson (FL)=20

Pryor=20

Reed=20

Reid=20

Rockefeller=20

Sarbanes=20

Schumer=20

Snowe=20

Specter=20

Stabenow=20

Wyden=20

NAYS--50

Alexander=20

Allard=20

Allen=20

Bennett=20

Bond=20

Breaux=20

Brownback=20

Bunning=20

Burns=20

Campbell=20

Chambliss=20

Cochran=20

Coleman=20

Cornyn=20

Craig=20

Crapo=20

DeWine=20

Dole=20

Domenici=20

Ensign=20

Enzi=20

Fitzgerald=20

Frist=20

Graham (SC)=20

Grassley=20

Gregg=20

Hagel=20

Hatch=20

Hutchison=20

Inhofe=20

Kyl=20

Lott=20

Lugar=20

McCain=20

McConnell=20

Miller=20

Murkowski=20

Nelson (NE)=20

Nickles=20

Roberts=20

Santorum=20

Sessions=20

Shelby=20

Smith=20

Stevens=20

Sununu=20

Talent=20

Thomas=20

Voinovich=20

Warner=20

NOT VOTING--1

=20

Biden=20

=20

The amendment (No. 2858) was rejected.=20

Mr. FRIST. Mr. President, I move to reconsider the = vote.=20

Mr. BROWNBACK. I move to lay that motion on the = table.=20

The motion to lay on the table was agreed to.=20

AMENDMENT NO. 2859=20

The PRESIDING OFFICER. The Senator from Washington. =

Mrs. MURRAY. Mr. President, I have an amendment No. = 2859 at=20 the desk. I ask for its immediate consideration.=20

The PRESIDING OFFICER. The clerk will report.=20

The legislative clerk read as follows:=20

The Senator from Washington [Mrs. Murray] = proposes=20 an amendment numbered 2859.=20

Mrs. MURRAY. Mr. President, I ask unanimous consent = that=20 reading of the amendment be dispensed with.=20

The PRESIDING OFFICER. Without objection, it is so = ordered.=20

(The amendment is printed in today's RECORD = under=20 ``Text of Amendments.'')=20

The PRESIDING OFFICER. There are 2 hours equally = divided on=20 the amendment. The Senator from Washington is recognized.=20

Mrs. MURRAY. Mr. President, today I am offering an=20 amendment to help prevent violence against women and children. We have = heard a=20 lot of talk today about punishing abusers. Now it is time to see who is = serious=20 about preventing abuse in the first place.=20

As someone who has spent my entire public life = talking with=20 victims, visiting shelters, working with advocates in law enforcement, = and=20 funding the programs victims rely on, I am here this afternoon to offer = an=20 amendment that will help women and children get the help they need to be = safe=20 and, most importantly, to save their lives.=20

Mr. President, the amendment I am offering this = afternoon=20 is built on what victims and experts have told me they need. That is why = this=20 amendment has been endorsed by the National Coalition Against Domestic = Violence=20 and the Family Violence Prevention Fund. These organizations know what = victims=20 need, and they say the Murray amendment will really help victims of = violence.=20

Mr. President, I am honored to say that my = amendment is=20 named for Paul and Sheila Wellstone, who were such champions for victims = of=20 domestic violence. Senator Wellstone and I introduced legislation which = is today=20 included in this amendment. Paul's desk was just behind me here on the = Senate=20 floor. I can still see him behind me waving his arms and making the case = for=20 people who have no voice.=20

This amendment is a real tribute to Paul and Sheila = and the=20 fight we carry on for the millions of people who need a voice in the = U.S.=20 Senate. Whenever Paul debated an issue, you could always tell who was = really=20 standing up for families and who was just talking. The vote on my = amendment will=20 reveal who is truly concerned about giving women and children the tools = they=20 need to escape violent relationships, and who is more interested in = playing=20 politics and attempting to undermine women's constitutional rights. Any = Senator=20 who is truly concerned about the safety of women and children will join = me and=20 give battered women the support they need to escape violent = relationships before=20 it is too late.=20

Now, I have a feeling that during this debate we = are going=20 to hear a lot of excuses. Some Senators are going to stand up here and = claim=20 that preventing violence against women is somehow not relevant. Senators = will=20 stand up here with the talking points that have been prepared for them = by the=20 Chamber of Commerce and say that protecting women from deadly abuse is = somehow=20 bad for business.=20

We are going to hear a lot of excuses. But I have = something=20 stronger. I have the actual stories of dozens of women who are being = abused, who=20 have escaped abuse, or who have been killed by their abusers. Those are = the=20 voices that need to be heard on the Senate floor, not talking points = from=20 lobbyists, not the same old excuses from the very people who are cutting = Violence Against Women Act programs by $10 million. We have had enough = of that.=20 We know where it has gotten us: 2 million women assaulted every year.=20

Nearly 1 in 3 adult women are assaulted. There are = 4.9=20 million intimate partner rapes and physical assaults, and thousands of = women=20 every year are killed by a spouse or a boyfriend. We know what all those = excuses=20 have produced: Women who are beaten, raped, and murdered.=20

Some lobbyists and Members of Congress want to bury = my=20 amendment. You know what. We have had to bury enough=20

people already. Let's see who is serious about = helping to=20 prevent violence and who is just playing politics with the lives of = battered=20 women.=20

Let me read a note I received from an advocate for = victims=20 of abuse. She writes:=20

I have had many many clients over the years who = have come=20 to me after they have been fired from work because they missed a day of = work to=20 go to court to get a civil protection order. In some of these instances, = the=20 women had sick days, but they were still fired. Several of these women = were=20 forced to return to their batterers after they lost their jobs because = they lost=20 their income and they and their children would have been homeless if = they did=20 not return.=20

These are some of the women who are trapped today = and who=20 desperately need our help. Mr. President, my amendment is especially = important=20 because the Bush administration is cutting or freezing funding for = critical=20 domestic violence programs. Every year, 2 million American women are = sexually=20 assaulted, stalked, or physically assaulted--2 million women every year. = You=20 would think that the White House would recognize the need to fund = domestic=20 violence programs, but the President's latest budget offers more bad = news to=20 victims of violence.=20

Let me give you some examples. The President's = budget cuts=20 Violence Against Women Act programs by $10 million. It cuts a Justice = Department=20 rape prevention program by $29 million. It freezes funding for the = domestic=20 violence hotline, and it freezes funding for grants for battered women = shelters,=20 precisely at a time when we need increases because evidence shows us = that=20 domestic violence increases during tough economic times just as we are = having=20 today.=20

So I find it pretty ironic to be here today with a = bill=20 before the Senate that purports to help victims of domestic violence = while it=20 ignores all we know about preventing it. Anyone who has talked with = victims'=20 advocates and law enforcement knows that domestic violence prevention = requires=20 more support, not less--not less. It is clear that we need to help = victims=20 escape violent relationships, and the Paul and Sheila Wellstone domestic = violence prevention amendment will help.=20

Mr. President, my amendment does several things. It = gives=20 victims of abuse=20

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access to unemployment = insurance if they have=20 been forced to leave their job because of violence. It gives victims of = violence=20 access to expanded emergency leave so they can go to court or to the = police to=20 stop the abuse. It protects victims from employment and insurance=20 discrimination. It provides services for children who witness domestic = violence=20 so we can end that cycle of abuse. It helps health professionals screen = for=20 abuse and respond appropriately. It gives victims better access to = critical=20 health services. Those are the steps we need to take today to protect = the more=20 than 2 million women who are sexually assaulted, stalked, or physically=20 assaulted every single year.=20

Mr. President, let me say a word about the = relevance of my=20 amendment. I expect some Senators will come here and claim that = preventing=20 violence against women is somehow not relevant to the bill we are = debating=20 today. To them, it never seems to be the right time. There is always an = excuse.=20 In fact, these Senators are sending a message that victims are not = relevant=20 until they are dead. If any Senator wants to come down here and tell = women=20 across America that the abuse they face is not relevant, then they will = have to=20 make that insulting claim alone because I am going to keep fighting to = get=20 victims the help they need, to prosecute abusers and break the cycle of=20 violence. You tell a woman who is being abused she doesn't deserve more = help;=20 you tell a child who is witnessing abuse every night that my amendment = is=20 unnecessary. I am not going to tell victims that. My amendment gives = them the=20 real help they need.=20

Mr. President, victims of violence have heard a lot = of=20 excuses over the years. Claiming that their daily abuse is not relevant = to this=20 Senate debate is just another of the excuses that have trapped women = every year=20 in this country. That claim is as insulting as it is false.=20

Just look at the recent debate in the House of=20 Representatives on this underlying bill. During that debate, every = single=20 anti-choice Member who spoke referred to criminal acts of violence = against=20 women. Violence against women is a central part of this debate. = Preventing=20 violence against women and helping women and children who are being = abused is=20 central to this discussion.=20

Opponents cannot have it both ways. They cannot = claim that=20 their bill is needed to address the violence against women and then = claim we=20 should not debate ways to prevent violence against women. This amendment = is=20 clearly relevant and will truly help women and children.=20

Anyone who wants to claim it is not relevant will = have to=20 answer to the victims to whom they are denying help. Either you are = serious=20 about helping women and victims or you are playing politics and making = excuses.=20

Women and children who are being violently abused = every day=20 deserve to know where their Senators stand, and Members of Congress are=20 certainly hearing from outside groups on this, from groups that are not=20 known--not known--for their advocacy on fighting domestic violence.=20

Yesterday, Senators received a letter from the U.S. = Chamber=20 of Commerce urging them to oppose my amendment. Bruce Josten, the = Chamber's=20 Executive Vice President for Government Affairs, makes the Chamber's = case rather=20 forcefully in his letter. He writes:=20

It is important to note as a preliminary matter = that H.R.=20 1997 is clearly an inappropriate vehicle for this amendment as the = issues=20 involved are completely unrelated.=20

``Unrelated.'' We are dealing with a bill that = claims to=20 address the crime of violence against women, but an amendment that would = actually prevent violence is ``unrelated,'' according to the Chamber of=20 Commerce.=20

Mr. Josten goes on to write:=20

The ill-designed programs promise to impose = significant=20 costs on business, particularly small business.=20

So the Chamber argues that the cost of preventing = further=20 violence against women is too high to pay. In other words, preventing = domestic=20 violence and giving women the tools to escape from abusive relationships = is bad=20 for the bottom line.=20

Let's, for a minute, examine the economics of = domestic=20 violence. There are costs associated with allowing domestic violence to=20 continue, not just for women but for businesses.=20

In 2002, economists Amy Farmer of the University of = Arkansas and Jill Tiefenthaler of Colgate University published a report = on the=20 economic impact of domestic violence. They examined publicly available = studies=20 performed in the United States, including the annual National Crime=20 Victimization Surveys, two Physical Violence in American Families = studies, and=20 seven studies in the national violence against women survey.=20

As Ms. Farmer explained:=20

Each study was intended to answer different = questions, so=20 the data sets have different strengths and weaknesses. When we = incorporated=20 these data into a single model of domestic violence, a different picture = emerged=20 that can be seen from any one study.=20

They found that absenteeism, tardiness, and = turnover rates=20 are all high among domestic abuse victims. Farmer's research also = concludes that=20 domestic abuse may result in almost 7 million lost work days annually--7 = million--reduced workplace productivity, increased insurance costs, and = lower=20 profits.=20

The researchers also cited a 1995 Roper report that = found=20 that 49 percent of the Fortune 100 executives surveyed believed that = domestic=20 violence hurt their company's productivity, and 33 percent said it = lowered their=20 profits. So this is a problem that is real, and it has real costs for=20 businesses.=20

If you go to the Corporate Alliance to End Partner=20 Violence, you can learn some other interesting facts about domestic=20

violence and how it affects the bottom line. On = their site,=20 you will find medical expenses from domestic violence costs $3 billion = to $5=20 billion a year. Businesses are paying $3 billion to $5 billion a year in = health=20 care for victims of domestic violence.=20

You also learn that 94 percent of corporate = security=20 directors rank partner violence as a high security problem. They = estimate that=20 75 percent of victims of domestic violence are harassed at work by their = abuser.=20

Here is a startling fact they have on their Web = site:=20 Homicide is the No. 1 leading cause of death on the job, and 20 percent = of those=20 murders were committed by their intimate partner at the workplace.=20

What should we conclude from this data? Domestic = violence=20 is bad for business. It has real and it has painful costs on employers. = So for=20 those Members who want to weigh this measure against its economic = merits, as the=20 Chamber does, the facts are clear. Providing the tools that will allow = abused=20 women to escape abusive relationships can help offset billions of = dollars in=20 costs that domestic violence imposes on businesses.=20

But I hope my colleagues will consider more than = the=20 economics as they cast their vote. I hope my colleagues will consider = the cost=20 to the women and children who are the victims of domestic violence--the = cost in=20 pain, the cost in lives--and the pain and the lives we can protect by = giving=20 women the tools they need to escape abusive relationships.=20

I would like to share with my colleagues this = afternoon=20 some of the stories of the women we are trying to help with this = amendment.=20 These stories were shared with me by a nationally recognized advocate = for=20 domestic violence victims.=20

Let me tell my colleagues a story about a woman who = had=20 worked at a medium-sized organization for over a year as an = administrative=20 assistant. Her husband had been beating her on and off for over 15 years = of=20 their relationship. When things escalated, she missed work due to a = severe=20 beating. She called in to work and was honest about what happened to = her. She=20 came in to work the next day and was told she was fired. Her company = told her=20 they were afraid that her husband would come to the workplace and hurt = her=20 coworkers, although that had never happened before.=20

She did not qualify for job guaranteed leave under = the=20 Family and Medical Leave Act because the company employed less than 50 = employees=20 and, arguably, her injuries from the beating did not qualify as a = serious health=20 condition. So it made her firing legal.=20

If VESSA--the act we are talking about--had been in = effect,=20 she would have had access to job guaranteed leave or perhaps a provision = prohibiting employers from discriminating against victims of domestic = violence.=20

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She applied for and was denied = unemployment=20 insurance.=20

This is a real woman. This is what happened to her. = It=20 could be your next-door neighbor. It could be your daughter.=20

There is another woman who worked as a hospital = nurse. She=20 just left her batterer and was concerned that he might follow her to her = workplace. She told her employer of her fears, and they fired her. She = applied=20 for unemployment insurance. She was denied.=20

Another story: Abusers often contact employers = themselves=20 to get the women they are abusing fired. One batterer called up the = workplace=20 and told them his victim=20

was HIV positive. He then told the employer that = the woman=20 was a liar and was missing work so she could file a frivolous = restraining order=20 against him. The woman took an earned sick day off from work, but when = she=20 returned to work, she was told she was fired because she was a victim of = domestic violence. If VESSA had been in place, that would have been = illegal.=20

Another story: A woman was assaulted by her = batterer in the=20 parking lot at her workplace. She was then fired for ``being in a = fight.''=20

Let me tell you about a woman who was strangled by = her=20 batterer. Her doctor told her to stay home from work for 5 days after = being=20 strangled. She called in sick to work, and she was fired because she did = not=20 have enough vacation days and she did not qualify for family and medical = leave=20 because her employer was too small.=20

These are real people, Mr. President. These are our = next-door neighbors. These are women who live in our communities. These = are real=20 stories.=20

Another example: One morning a woman was getting = ready to=20 go to work and her abuser came to her home with a gun. He told her that = if she=20 left the house, he would kill her. She was able to call the police, and = the=20 police came to her home and arrested the batterer. She got a police = report. She=20 called her workplace and explained why she was unable to come to work = that day.=20 The next day she returned to work and was fired for missing work and was = denied=20 unemployment insurance.=20

Let me tell you another story: One woman got a call = at work=20 from her abuser. Her coworker overheard the conversation, and then her = employer=20 took her aside and said since she was dealing with so much, she couldn't = possibly continue to work for him and fired her.=20

Here is an example of what happens when a woman = tried to go=20 to court to get help. A woman told her employer that she was in a = violent=20 relationship and that she would need to take a day off from work to go = to court=20 to get a protection order.=20

The employer seemed supportive and agreed, so she = took the=20 day off and went to the court. The next day when she arrived at work, = her=20 supervisor called her into his office and she was fired for missing = work, even=20 though she had obtained permission the day before.=20

These are just some of the people who desperately = need our=20 help. These are real stories. These are real women. They need this = amendment to=20 break out of these abusive relationships.=20

Let me take a minute to put this amendment in = context=20 because it is the next logical step in the progress that we have been = making in=20 fighting domestic violence. We have come a long way over the past few = years in=20 dealing with domestic violence. Not long ago domestic violence was = considered a=20 family problem. It was something people did not talk about. That climate = made it=20 very difficult for victims to seek help. It prevented friends or = neighbors from=20 getting involved in what was considered someone else's business.=20

Today stopping domestic violence is everyone's = business,=20 thanks to the Violence Against Women Act, which I was proud to work on = and help=20 pass. For the first time, the Violence Against Women Act recognized = domestic=20 violence as a violent crime and a national public health crisis. It laid = out a=20 coordinated strategy to bring advocates, shelters, prosecutors, and law=20 enforcement professionals together to fight domestic violence. I was = proud to=20 help reauthorize the Violence Against Women Act in 2000.=20

Over the years, I have been proud to work with = advocates=20 from Washington State and across the country to strengthen these = violence=20 against women programs, to increase the funding, and to help raise = awareness. So=20 the Violence Against Women Act was the first step and it helped us = respond to=20 the immediate threat of abuse. Now it is time for us to address the = long-term=20 problems that victims face. We need to break down the economic barriers = that=20 trap these women in abusive relationships, and we need to reach out to = the=20 children who witness this violence, help health care professionals stop = the=20 cycle of violence and truly protect women and children.=20

Let me take a few moments to walk through the parts = of my=20 amendment and show how it will help prevent and stop abuse. My amendment = gives=20 victims of violence access to unemployment compensation. Specifically, = it=20 provides victims of domestic violence, dating violence, sexual assault, = or=20 stalking with unemployment insurance if they have been separated from = their=20 employment as a result of the violence.=20

Many abusers trap their victims financially, = limiting their=20 ability to work and forcing them out of a job. I will share some = statistics that=20 have been compiled by the National Coalition Against Domestic Violence. = Many=20 victims of domestic violence have current or former partners who = interfere with=20 their efforts to work by harassing them on the job, threatening them and = their=20 children, withholding transportation, or beating them so severely they = cannot=20 work. In addition, more than 25 percent of domestic violence victims = surveyed in=20 three national studies reported they lost a job due at least in part to = domestic=20 violence.=20

We know that a job is often the only way for a = victim to=20 build up resources for themselves to eventually leave a violent = relationship,=20 but abuse and stalking can make it=20

impossible for a victim to keep a job. We know of = cases=20 where abusers will deliberately sabotage a victim's ability to work, = placing=20 harassing phone calls, cutting off their transportation, showing up at = the=20 workplace and threatening employees. When a victim loses her job because = of=20 violence, she should have access to unemployment insurance compensation=20 benefits.=20

During this debate some may claim this is some big, = onerous=20 expansion. I have seen the talking points from the groups that want to = kill this=20 genuine effort to protect women from violence, and they have it wrong. = This is=20 not some dramatic expansion. In fact, today 25 States already provide = some type=20 of unemployment insurance assistance for victims of domestic violence. = We can=20 offer that same protection to victims in every State, and we have an = obligation=20 to do it.=20

My amendment will also protect victims by allowing = them=20 unpaid time to get the help they need. Today a woman can use family and = medical=20 leave to care for a sick or injured spouse, but many women cannot use = that act=20 to go to court to stop the abuse. My amendment fixes that. We know that = taking a=20 day off of work to go to court or to go to the police can save a woman's = life.=20 My amendment ensures women will not be punished for taking those steps = that they=20 need to take to protect themselves from abuse.=20

Let me turn to another part of my amendment which = deals=20 with the children who witness domestic violence. Batterers often harm = children=20 as well as their intimate partners, and witnessing violence can have a = serious=20 impact on young children and all children. Let me offer some statistics = about=20 abuse and children to put this in perspective.=20

Between 3.3 million and 10 million American = children=20 annually witness assaults by one parent against another. In 43 percent = of=20 households where intimate violence occurs, at least one child under the = age of=20 12 lives in that home. Children are caught in the crossfire of abuse, = and while=20 we know all children are affected differently, we do know that children = who=20 witness violence at home may display emotional and behavioral = differences as=20 diverse as withdrawal, low self-esteem, nightmares, or aggression = against their=20 peers, family members or property.=20

We know that witnessing abuse by a child can = contribute to=20 the cycle of violence. The Office of Juvenile Justice and Delinquency = Prevention=20 at the U.S. Department of Justice finds that as many as 40 percent of = violent=20 juvenile offenders come from homes where=20

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there is domestic violence. In = my home State of=20 Washington, we are now all too aware of the price children pay in cases = of=20 domestic violence.=20

In April of 2003, the Tacoma police chief, David = Brame,=20 shot and killed his wife Crystal. Then he took his own life, all while = their two=20 young children watched. The final tragic act was the last in a long = history of=20 abusive events that often played out in front of their two small = children.=20

According to the police report, David Brame had = been=20 driving around in a shopping center parking lot in Gig Harbor that day = when he=20 spotted his wife Crystal and the couple's children as she was parking = the car.=20 Brame shot her and then turned the gun on himself.=20

According to a witness, 7-year-old Haley told her:=20

My daddy is a policeman and he is very mean to my = mommy. I=20 think my daddy has killed her.=20

Then Haley told officers she had seen her dad point = a gun=20 at her mom's head in the past.=20

Detectives talked to the son, David, 5 years old, = at the=20 hospital a few hours later as the mother was fighting for her life. They = asked=20 the little boy, 5 years old, ``Did you see the gun?''=20

He answered:=20

Yeah. And, it shooted my mom into flat dead.=20

The children talked about past anger between their = mother=20 and their father and what led to that terrible day. That is just one = terrible=20 example of the trauma that children who live with domestic violence have = to live=20 with. It should be our collective goal to help them overcome it.=20

This is how this amendment would help children who = witness=20 domestic violence. It establishes grants to children who have been = exposed to=20 domestic violence such as I just described. It supports direct = counseling and=20 advocacy, early childhood and mental health services, legal advocacy and = specialized services. It provides training for school personnel to = develop=20 effective prevention and intervention strategies. It helps child welfare = agencies, domestic violence, and sexual assault service providers work = together=20 to protect the children.=20

Finally, it supports multisystem intervention = models and=20 crisis nurseries for children who are exposed to violence in their home. =

Children who witness domestic violence have special = needs.=20 They are not being addressed today. We have an obligation to change = that.=20

Let me turn to the next part of my amendment, which = increases health screening so more victims can get assistance. More than = one in=20 three women who seek care in emergency rooms for violence-related = injuries were=20 injured by their intimate partner. Unfortunately, most victims who seek = health=20 care leave the doctor's office without addressing the underlying cause = of their=20 injuries. They leave that untreated, and that is the violence they = suffered. The=20 cost of intimate partner violence exceeds $5.8 billion every year; $4.1 = billion=20 of that is for direct medical and mental health care services.=20

Health care providers can do a great deal to stem = the tide=20 of domestic violence before it becomes life threatening. A 1999 study = published=20 in the Journal of the American Medical Association found only 10 percent = of=20 primary care physicians routinely screen for intimate partner abuse = during new=20 patient visits, and 9 percent routinely screen during periodic checkups. =

Emerging research shows us hospital-based domestic = violence=20 interventions could reduce health care costs by 20 percent. My amendment = will=20 help ensure health care providers are trained in how to identify and = serve=20 victims of domestic violence, and provide grants to strengthen health = care=20 systems' responses to domestic violence.=20

My amendment will promote public health programs = that=20 integrate family violence assessment and intervention into basic care. = It=20 encourages collaboration between health care providers, public health = programs,=20 and domestic violence programs.=20

My amendment will lead to more effective = interventions,=20 more coordinated systems of care, greater resources to educate health = care=20 providers about domestic violence, and ultimately what we all want, more = women=20 receiving help.=20

In December of 1999, the New England Journal of = Medicine=20 published a major study on the risk factors for injury to women from = domestic=20 violence. Here is what one of the researchers, Dr. Robert Muelleman, had = to say.=20

A lot of women who have died from domestic violence = had=20 been seen in their local emergency rooms at least 2 years before their = deaths.=20 In America, 2 to 4 million women are injured each year, and 1 to 2 = million of=20 those show up in emergency rooms. Of these, 2,000 to 3,000 a year end up = as=20 homicides.=20

It's clear that medical professionals in the = emergency room=20 can be a great help in identifying at-risk women and directing many of = them to=20 supportive resources before it's too late.=20

That is from Dr. Robert Muelleman of the University = of=20 Nebraska Medical Center.=20

Let me turn to another part of my amendment, which = expands=20 the services available to victims of abuse. My amendment gives the = States the=20 option to use Medicaid to help victims, it ensures domestic violence = screening=20 and treatment is covered by the Federal Employees Health Benefit = Program, and=20 finally my amendment ensures States use some of the maternal and child = health=20 block grant on domestic violence screening and treatment.=20

Those are the main provisions of my amendment. = Extending=20 unemployment insurance benefits for victims of abuse, offering family = and=20 medical leave so a victim can go to court or the police station to get = help,=20 ending insurance and employment discrimination, providing help for those =

children who witness abuse, offering access to = health care=20 for victims, and improving the way our health care providers screen for = domestic=20 violence.=20

My amendment combines the protections and services = victims,=20 law enforcement, and advocates tell us are needed, based on their real = world=20 experiences every day on the front lines of domestic violence. We have = an=20 opportunity today finally to make a real difference for millions of = women who=20 are being assaulted. We can save lives and we can eliminate all the = costs=20 domestic violence imposes on our businesses, on our families, and on our = communities. The question is whether we are serious about helping to = prevent=20 violence against women.=20

The underlying bill before the Senate today focuses = only on=20 penalties after a woman has been abused. My amendment aims to prevent = that abuse=20 in the first place. After a woman has been killed, it is too late. We = have to=20 stop this abuse before it ends up killing some woman. My amendment gives = women=20 today the tools to escape deadly abuse.=20

Are the Senators in the Chamber serious about = helping=20 victims of abuse? That is the question before us.=20

Frankly, I don't care what the lobbyists say out = there. The=20 Chamber of Commerce has lobbyists lined up and down the hall, and they = have=20 plenty of people making their case. But I tell you, the women whose = stories I=20 shared with you today don't have lobbyists lined up in the hall.=20

I have been to the shelters. I talked to the women = who have=20 been beaten. I have looked in their eyes and I know the odds they are up = against. I know what I would say next time I am looking into the eyes of = the=20 victim of abuse.=20

My colleagues will have to decide for themselves if = they=20 are going to give her excuses or throw a lifeline to help her escape the = violence that may kill her. I say to my colleagues, what are you going = to say to=20 the victims of abuse? Your vote will speak volumes.=20

The PRESIDING OFFICER. The Senator from Ohio.=20

Mr. DeWINE. Mr. President, I want to take = a moment=20 to address my concerns about the amendment my friend and colleague from=20 Washington, Senator Murray, has offered to the underlying bill. =

First, let me commend my colleague for her passion, = for her=20 dedication to promoting public awareness about domestic violence, and = for her=20 dedication to this cause. She certainly is a tireless advocate in these = efforts=20 to help end domestic abuse. She is steadfast and unwavering in her = commitment to=20 these issues, and I applaud her for offering this amendment today.=20

But, reluctantly, I come to the floor this = afternoon to=20 oppose this amendment. I say this not because I am opposed to all the = provisions=20 of her amendment, but because the reality is=20

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this is not the time or the = place for this=20 amendment. Her amendment being offered to this bill, as a practical = matter, does=20 not have any chance of becoming law. We understand how not only this = body but=20 the other body operates. The truth is, what the agreement to this = amendment=20 would do is stop the underlying bill. When we look at the calendar, when = we look=20 at the reality of the other body, when we look at what is going on in = this body,=20 the agreement to this amendment to this bill will stop this bill. It = will kill=20 this bill.=20

So when Members come to the floor, I implore them = to think=20 about this, however tempting it might be to agree to this amendment. It = is a=20 very big amendment. It is a very complex amendment. Some of my other = colleagues=20 in just a moment will talk about the merits of this amendment. I am not = going to=20 get into that.=20

I have a long history in the House, when I was in = the House=20 and later when I was Lieutenant Governor of Ohio, and now in the Senate, = of=20 supporting the cause of dealing with the problem of domestic violence. = So many=20 other Members of the Senate have done that as well. I don't say I am the = only=20 one. Other Members have had a great record. My colleague has a great = record.=20

But the reality is this amendment, however well = intended,=20 cannot become law this way. It will not become law this way, and it will = have=20 the effect of killing this underlying bill. So, therefore, I must oppose = this=20 amendment. This amendment would kill this bill.=20

We are so close to seeing the underlying bill, a = bill we=20 have worked so hard to pass, actually go to the President.=20

The House has passed it. We are very close to = passing it=20 here in the Senate and sending it on to the President for his signature. = The=20 only thing, frankly, that now stands between this bill becoming law and = going to=20 the President for his signature is the Murray amendment.=20

At this point, I will yield time to my colleague = from the=20 State of Utah for his comments about this amendment.=20

The PRESIDING OFFICER. The Senator from Utah.=20

Mr. HATCH. Mr. President, I couldn't agree more = with the=20 comments the distinguished Senator from Ohio just made. This is a very = important=20 piece of legislation. It should not be killed on by this last-minute, = 158-page=20 amendment, which has not had a single hearing.=20

I have long been a supporter of ensuring that our = Nation's=20 laws extend all the protections available to women who are victimized by = domestic and other violence.=20

Along with Senator Biden, I have taken the = lead in=20 addressing this issue through national legislation with the passage of = Violence=20 Against Women Act.=20

I commend Senator Biden for the work he = has done=20 on that. But it took a bipartisan effort to get that through. Of course, = I=20 worked very hard side by side with him to get that bill passed, and have = stood=20 up for it ever since.=20

Because of the passage of the Violence Against = Women Act,=20 the Department of Justice is now authorized to coordinate with Federal = and State=20 governments, as well as international governments, on matters concerning = violence against women.=20

In fact, the Bush administration will allocate = almost $400=20 million this year alone for these worthy programs.=20

I note with a sense of pride that a former adviser = to my=20 Woman's Advisory Council from Utah is now the director of the Office on = Violence=20 Against Women in the Department of Justice. She is doing a terrific job. =

Violent crimes against women continue to be among = the most=20 under-reported. Even so, the statistics that are reported do not convey = the=20 feeling of fear and vulnerability millions of women across this country = must=20 face in our streets and all too often in their own homes.=20

To address this problem, effective intervention in = the area=20 of domestic violence requires coordinated efforts by police, = prosecutors,=20 counselors, and courts. It demands a major commitment by Government at = all=20 levels, Federal, State, and local. I am proud to help in coordinating = the=20 response to this important issue and have been very proud to have done = so in the=20 past. I intend to continue addressing these concerns in the future.=20

I say all of this to set the backdrop for why I = urge my=20 colleagues to vote against the Murray amendment.=20

Let me say at the outset I appreciate my colleague, = Senator=20 Murray, for attempting to advance the discussion on this issue. = As=20 someone who has been working on this matter my whole political = career--and even=20 before I officially began my political career--I know how difficult it = is to=20 craft effective legislation which truly makes a difference in this area = of the=20 law. It takes countless hours of hearings, meetings with interested and = affected=20 constituents, as well as committee markups to ensure what is ultimately = passed=20 is well formulated and well vetted so you accomplish the goals you set = for=20 yourself without causing unintended consequences.=20

This is a complex area of law. I am sorry to say, = however,=20 this amendment has not been adequately scrutinized. In fact, I am told = no=20 committee has examined this proposal, leaving it with far too many = troubling=20 provisions.=20

This is not a simple amendment. It is 158 pages = long. Let=20 me take a moment to point out just a few of the more troubling = provisions=20 contained within the Murray amendment. I am only talking about a few of = them.=20 There are plenty more.=20

In this Congress we have taken on a number of civil = justice=20 reforms. From class action to medical malpractice reform to asbestos = reform,=20 which I am hopeful we will consider in the next week or so, we have=20 substantively addressed many of the more troubling aspects of civil = lawsuit=20 abuse. This=20

amendment, however, takes us exactly in the wrong = direction=20 after all of that work.=20

For instance, section 112 allows plaintiffs to = recover=20 liquidated damages in addition to other damages under this amendment. = This is a=20 technical area of the law. But it is a very important area. What this = amendment=20 does makes absolutely no sense. It doesn't have a chance in the world of = going=20 through the whole Congress, but will in essence destroy this very worthy = and=20 important bill.=20

Liquidated damage provisions are appropriate when = the=20 actual damages are too difficult to ascertain. Accordingly, in lieu of = actual=20 damages, parties agree upon a reasonable estimate of liquidated damages. = Thus,=20 liquidated damages are used as a substitute for actual damages and not = as a=20 supplement to them. Courts simply do not enforce liquidated damages that = are=20 merely intended to serve as a penalty.=20

In this litigation-prone country we have right now, = this=20 would go completely awry, and it would undermine, it seems to me, what = we are=20 trying to do to prevent violence against women in the end.=20

What it seems the Murray amendment is trying to do = is=20 codify a set formula for determining punitive damages by automatically = doubling=20 the amount for compensatory damages with the possibility of a reduction = if good=20 faith is shown. But if that is the intent, the bill is not drafted = properly to=20 carry out that intent.=20

This glaring error is just one example of what = occurs when=20 a bill does not undergo the scrutiny required to pass sound legislation. =

It took us years to pass the Violence Against Women = Act--not because we were stupid and not because we didn't want to do it = faster,=20 but because we had to listen to experts and make the appropriate changes = that=20 have made it the great law it is today.=20

What will happen if this amendment is adopted? = First of=20 all, this amendment isn't going to go anywhere, anyway. But if it is = adopted, it=20 will destroy this bill. Basically it will undermine what all of us--a = vast=20 majority in this body--are trying to do.=20

The one reason we created the committee system, of = course,=20 is to correct and vet legislation rather than wasting valuable floor = debate=20 time.=20

An additional provision found in the Murray = amendment=20 pertaining to class action--section 112(g)--appears to fly in the face = of the=20 efforts of a vast majority of Senators. It makes no effort to take into=20 consideration issues that trouble the majority of Senators. This = amendment=20 codifies in the United States Code a right to bring class actions.=20

I have helped lead the fight in this Congress to = reform the=20 substantial=20

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abuses that have occurred by = some unscrupulous=20 trial lawyers, personal injury lawyers primarily, who have brought = unjustified=20 class actions in an attempt to extort settlements from companies across = this=20 country. That is right. Extort settlements. In fact, well over 50 of my=20 colleagues--truth be known, over 60 of my colleagues have joined with me = to take=20 a stand against these abuses. In light of this clear expression of = sentiment, it=20 makes no sense to codify in the United States Code this class action=20 authorization. It flies in the face of everything we are doing around = here.=20

Obviously, there has been no serious effort to = address the=20 legitimate concerns of the bipartisan majority of the Senators working = on the=20 class action issue, and we have worked on it for years. We are still = working on=20 it. We have come a long way. We now have a supermajority of Senators who = will=20 support class action reform as it should be supported. But it took years = for us=20 to get there. Unlike some 158-page amendment that has not been well = thought=20 through but brought up on the floor suddenly. However well intentioned = the=20 efforts are, in the end, the result will be to destroy the underlying = bill that=20 the vast majority of us would like to pass.=20

I am sure Senators GRASSLEY, KOHL, CARPER, = and I=20 will work with the distinguished Senator from Washington in good faith, = if she=20 will work with us in good faith with regard to her concerns as = exemplified in=20 this 158-page amendment.=20

Finally, let me point out another provision of the = Murray=20 amendment that opens the door to further lawsuit abuse.=20

In a country that has long been known for its = litigation=20 abuse, and we all know this is true, these ill-thought-out litigation = matters=20 are running us into bankruptcy--ruining businesses throughout the = country, not=20 getting money to those who deserve them, and driving a set of = unscrupulous trial=20 lawyers who basically know better but who are more interested in making = money=20 than they are in doing what is right.=20

Section 134 of this 158-page amendment itemizes = what can be=20 recovered in a lawsuit brought under this amendment.=20

In addition to the ordinary recoveries already = permitted in=20 the civil justice system, this amendment proposed by the distinguished = Senator=20 from Washington would permit a money recovery when the plaintiff suffers = ``inconvenience,'' ``loss of enjoyment,'' and other non-pecuniary = losses.=20 Recovery for inconvenience? Recovery for loss of enjoyment? My gosh, = what does=20 that mean in the law? Anyone who takes the metro during rush hour = suffers from=20 inconvenience. And, I might add, loss of enjoyment. This type of = language is=20 absurd. It should not even be considered by this right-thinking body.=20

I am just mentioning a few of the problems. I don't = want to=20 take much longer because there is only an hour on each side in this = debate.=20 These are just a few of the problems caused by this amendment as it = relates to=20 civil justice judiciary issues, important issues that should not be = dealt with=20 frivolously.=20

I have not touched on other problems caused by the=20 amendment such as the increase in taxes on small business that will = inevitably=20 follow if it is passed, the wholesale restructuring of state = unemployment=20 insurance rules and regulations, as well as the substantial 11th = amendment=20 concerns raised by this poorly drafted but well-intentioned amendment.=20

I understand others will come to the floor to = discuss these=20 issues so I don't intend to repeat them now. They are important issues. = This is=20 not an itty-bitty amendment. This is a major amendment that literally = has not=20 had a day of hearings.=20

I take a backseat to no one, not anyone, in = ensuring that=20 Congress does everything it can to provide protections, support, and = resources=20 to combat domestic violence. But this amendment is not well written. Or = perhaps=20 I should say, not only is it not well written, it is overwritten in many = respects.=20

Because of the problems replete in the Murray = amendment, I=20 cannot vote in favor of it. I recommend Senators on both sides of the = aisle vote=20 against this amendment. We will certainly sit down with the = distinguished=20 Senator and look at her goals and her aims, try to help her fashion this = amendment so that it can pass the Senate in a form that literally makes = sense in=20 the law, makes sense in reality, and makes sense in practicality.=20

I yield the floor.=20

The PRESIDING OFFICER (Mr. CHAMBLISS). Who = yields=20 time?=20

Mr. HATCH. I yield such time as he needs to the=20 distinguished Senator from Wyoming.=20

The PRESIDING OFFICER. The Senator from Wyoming.=20

Mr. ENZI. I rise in opposition to the amendment = offered by=20 the Senator from Washington. This amendment is a sweeping expansion of = Federal=20 employment law without a hearing, without committee debate, without = committee=20 amendments, and without any potential for floor amendments. We never = legislate=20 like that. This bill does not just have one concept in it; it has many = concepts=20 in it. It is 158 pages. That makes it evermore unworkable to do in the = Senate.=20 This just is not how we legislate.=20

As chairman of the Subcommittee on Employment, = Safety, and=20 Training, I am compelled to discuss the implications of such an = unprecedented=20 and misguided expansion of current law.=20

Let me begin by saying I share Senator = Murray's=20 concern about domestic violence. Domestic violence shatters families and = with it=20 the very foundation of our society. My opposition to the amendment is = not based=20 on a lack of concern for victims of domestic violence. A good title does = not=20 make a good amendment. I am opposing this amendment because it is an=20 unprecedented expansion of workplace laws without any consideration for = the=20 committee of jurisdiction.=20

This amendment greatly expands workplace laws = without any=20 hearings or Committee consideration. The amendment creates a new set of = laws=20 requiring businesses--including small businesses--to provide employees = with=20 additional leave and special accommodation. However, the amendment has = not been=20 reviewed by the Committee of jurisdiction. It creates new workplace = requirements=20 without considering the impact of its implementation or its relation = with=20 existing laws. The process is flawed and irresponsible.=20

The amendment creates broad, vague workplace = requirements=20 that conflict with existing law and invite litigation. It creates new = rights to=20 leave and prohibitions against employment discrimination against = domestic=20 violence victims that are inconsistent with current employment laws, = including=20 the Family and Medical Leave Act (the FMLA), the Americans with = Disabilities=20 Act, Title VII of the Civil Rights Act of 1964, and the Civil Rights Act = of=20 1991. The nondiscrimination provisions extend to ``perceived'' victims = of=20 domestic violence who have never been subjected to domestic violence. = The Murray=20 amendment defines a victim of domestic or sexual violence to include = family=20 members of domestic or sexual violence victims. Under this definition, = abusers=20 such as parents who molested their own children would be protected under = the=20 Murray Amendment.=20

This amendment creates unprecedented Federal = workplace=20 regulation on small business. Congress has recognized the burden of = workplace=20 regulation on small businesses with limited resources. The FMLA exempts=20 businesses with fewer than 50 employees from coverage. The Murray = amendment=20 would cover all employers with 15 or more employees.=20

The lack of administrative alternatives increases=20 litigation and burdens courts. Unlike existing federal = anti-discrimination laws,=20 the Murray amendment allows claimants to bypass the Equal Employment = Opportunity=20 Commission, EEOC, and file a private suit directly in court. This = undermines the=20 efficacy of the EEOC and this amendment.=20

These are unlimited damages for employment = discrimination=20 caused by someone else. Unlike existing Federal laws which cap damages = for=20 employment discrimination, the Murray Amendment allows unlimited = compensatory=20 damages, and punitive damages of up to 300 percent of actual damages. = Why should=20 a victim of domestic violence discrimination be able to recover greater = damages=20 than a victim of race or disability discrimination?=20

The amendment imposes an unfunded Federal mandate = on State=20 unemployment compensation. The Murray Amendment imposes a Federal = Mandate to=20 cover domestic violence under=20

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state unemployment compensation = programs. This=20 requires states to pay the tab, but gives them no voice in whether or = now to do=20 so. Employers in States that fail to comply must pay huge penalties in = the form=20 of higher Federal Unemployment tax. Unemployment compensation is--and = should=20 remain--a state issue.=20

With vague, broad language that conflicts with = current=20 employment law, lawyers--not domestic violence victims--will be the = biggest=20 winners under the Murray amendment.=20

The Senator from Washington is the ranking Member = of the=20 Subcommittee on Employment, Safety, and Training. Many of the provisions = in this=20 amendment fall within that subcommittee's jurisdiction. The rest of them = fall=20 under the jurisdiction of the Senator from Utah, who chairs the = Judiciary=20 Committee, who just spoke from that perspective.=20

The first time we are considering this major = expansion of=20 Federal employment law is on the Senate floor on a bill totally = unrelated to=20 employment and, I have to add, unamendable. There is an agreement = between the=20 two sides there would be two amendments today, and those amendments = would not be=20 amendable, nor would there be allowed any intervening action. What we = have is=20 what we get. I have to say, no one is going to want to get that.=20

The overly broad and vague provisions of this = amendment=20 conflict with and undermine existing employment laws. The committee = process is=20 so important because that is where we carefully evaluate in a much less = formal=20 situation the impact of pending legislation and its relation with = current law.=20

Let me explain a little bit more how that committee = process=20 works. Besides the hearing part where we get to bring panels of experts = before=20 us and ask them extensive questions so we have a better understanding of = what is=20 going on and to give them an opportunity to speak on the provisions that = are=20 before us, we also have what we call a committee markup.=20

The committee markup is where most of the work for = this=20 Chamber is done. It is a much smaller group; it is a much more informal = group.=20 People turn in their amendments ahead of time so that they can be = reviewed by=20 all. Even on the day of the markup people can get together and work on=20 amendments to get agreement. It is fairly successful. The amendment = process=20 usually results in a bill coming from committee with about 80-percent = agreement.=20

The unfortunate thing for this country is that the = bill=20 comes to the floor, and what we usually debate is the 20 percent we do = not agree=20 on. That is not the case on this particular item. This has not even been = discussed in committee, so the 80-percent agreement is not there. The = ability to=20 work out issues with some flexibility is not there. I am sure there are=20 provisions in this bill that are written in a way that the author = probably=20 wishes were different. I certainly wish they were different.=20

The first bill I ever did in the Wyoming = legislature was=20 only a three-sentence bill when I took it to the legislature. In = committee, it=20 got two amendments. On the floor, it got three amendments. When it went = to the=20 Senate side, it did not get any in committee but it got one on the = floor. What I=20 learned through that process was that every step of that made an = important=20 difference. It turned out to be a far better bill because all of the = opinions of=20 all of the people serving in that body were injected and they could see = a lot=20 more different directions than any one member of that body.=20

That is how we work it here. We work it so that the = 100=20 Senators have an opportunity to take something as complicated as this = and make=20 changes to it.=20

Then the House looks at the same thing. Again, = there are a=20 lot more opinions that get into the bill.=20

The committee process is so important because that = is when=20 we carefully evaluate the impact of pending legislation and its = relationship to=20 current law. We did not do that here. What we have here is a 158-page = proposal=20 which is not related to the underlying bill, and that proposal rewrites=20 employment law without the benefit of hearings or committee = consideration. That=20 process is flawed and irresponsible.=20

So, more specifically, what will this amendment do? = It=20 creates a new Federal law that mandates employers, including small = employers, to=20 give up to 30 days of leave to an employee to address domestic or sexual = violence. However, this proposal ignores important requirements that = Congress=20 applied to leave taken under the Family and Medical Leave Act, FMLA.=20

Let me highlight a few of the differences between = FMLA and=20 the Murray amendment.=20

The Family and Medical Leave Act applies to = employers with=20 50 or more employees. The Murray amendment applies to employers with = 15--that is=20 15, instead of 50--employees. Most small businesses do not have the = processes or=20 personnel necessary to begin complying with this new leave requirement.=20

In the past, Congress has recognized the burden of=20 workplace regulations on small businesses. However, this amendment would = impose=20 workplace regulations on small businesses never before covered by = Federal=20 employment laws. This amendment would undermine the small business = exemption=20 Congress included in the Family and Medical Leave Act.=20

The Family and Medical Leave Act imposes a=20 length-of-service requirement for employees to be eligible for leave. = The Murray=20 amendment has no service requirement for an employee to be eligible. = Under this=20 amendment, a worker is presumably eligible for leave on the first day of = work.=20

Under the Family and Medical Leave Act, employers = can=20 require a health provider to certify the need for leave. This amendment = invites=20 misuse and abuse because there is no third-party verification--no = third-party=20 veri=1Cfica=1Ction--for the leave to be required. So if a person says = they were=20 abused, that is good enough to take time off.=20

The Murray amendment does not amend the Family and = Medical=20 Leave Act itself; instead, it gives more capability to someone, under = this=20 amendment, than they would get under the regular law. It is a backdoor = effort to=20 expand Federal leave law at the expense of equity and clarity.=20

This amendment prohibits employers from = discriminating=20 against an individual who is ``perceived'' to be a victim--that is = interesting=20 wording, ``perceived'' to be a victim--of domestic or sexual violence.=20 Individuals with absolutely no legitimate claims of domestic or sexual = violence=20 would have a cause of action under this vague and broad standard.=20

How are employers and courts to determine who a=20 ``perceived'' victim is? Whatever the intent of this legislation, the = result=20 will be excessive confusion and, worse yet, excessive litigation. The = amendment=20 defines a ``victim of domestic or sexual violence'' to include--and I am = sure=20 the Senator from Alabama, who is on this committee that has not had a = hearing on=20 it yet, who is on the floor, will make some comments on this--an = ``individual=20 whose family or household member has been a victim of domestic or=20

sexual violence.''=20

Under this definition, family-member abusers--such = as=20 parents who molested their own children--would be protected under this = poorly=20 drafted legislation. People could get time off for bad behavior.=20

There is a good reason for this process we have of=20 hearings, committee markup, debate on the floor, with amendments, and = then the=20 discussion between the two bodies.=20

The problems with the amendment extend beyond poor=20 drafting. This amendment is inconsistent with the remedy and enforcement = provisions of existing employment discrimination laws. Under title VII = of the=20 Civil Rights Act of 1964, the Americans with Disabilities Act, and the = Age=20 Discrimination in Employment Act, Congress gave the Equal Employment = Opportunity=20 Commission the role of investigating and enforcing complaints of = employment=20 discrimination. These existing laws require a claimant to first file a = complaint=20 with the Equal Employment Opportunity Commission before being able to = file a=20 private suit in court.=20

The Equal Employment Opportunity Commission plays a = vital=20 role in employment nondiscrimination laws. The Commission's mediation = activities=20 expedite resolution of cases and reduce the backlog of employment cases = in our=20 courts. This amendment would=20

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allow victims of domestic = violence=20 discrimination to bypass the administrative process and file suit in = court.=20 Allowing claimants to bypass the Equal Employment Opportunity Commission = undermines the efficiency of the agency and the legislation.=20

This amendment disregards the remedy structure of = other=20 Federal employment discrimination laws. Existing laws limit available = damages.=20 For example, consequential and punitive damages for claims under title = VII of=20 the Americans with Disabilities Act are progressive with the size of the = employer and capped at $300,000. This amendment provides unlimited = compensatory=20 damages and punitive damages up to three times the amount of the actual = damages.=20

Why should a victim of domestic violence = discrimination be=20 able to circumvent the complaint process that victims of race or = disability=20 discrimination must follow? Why should a victim of domestic violence=20 discrimination be able to recover greater damages than victims of race = or=20 disability discrimination? There is no justification for this unequal = treatment.=20 We must guard against enacting legislation that, in an effort to protect = individuals from one type of discrimination, creates inequities for = those who=20 have been subjected to another type of discrimination.=20

I find the leave and discrimination provisions of = this=20 amendment very troubling. I find the unemployment compensation = provisions to be=20 misguided as well. The amendment requires States to provide unemployment = compensation benefits to individuals who are separated from employment = as a=20 result of domestic violence. That has always been and is a State = decision. Under=20 the amendment, that is taken away from the States. States can decide = and, in=20 many instances, have decided. Individuals would receive unemployment=20 compensation if they leave employment because of a reasonable fear of = domestic=20 violence, a desire to relocate to avoid domestic violence, or to obtain = physical=20 or psychological treatment.=20

Eligibility for unemployment compensation is and = should=20 continue to be a State--not a Federal--decision. The=20

terms of unemployment compensation are decided on a = State-by-State basis. States have the authority to extend unemployment=20 compensation to victims of domestic violence. A number of States have = already=20 done so. This amendment imposes a Federal mandate and higher costs on = State=20 unemployment compensation programs. The Federal mandate will impose huge = penalties on employers in States that fail to comply. It is estimated = that the=20 Federal unemployment tax on all employers in the State will be increased = from=20 $56 per worker to $434 per worker. How many jobs will that cost?=20

A Federal mandate to cover domestic violence under = State=20 unemployment compensation programs requires States to pay the tab. = However, we=20 give the States no voice in whether or how to do so. It is unfair and=20 irresponsible for Washington to impose this burden--and, in fact, = against the=20 law--on already burdened State unemployment programs and employers.=20

Domestic violence is a serious problem that = devastates=20 lives and shatters families. However, we cannot allow a misguided = attempt--with=20 no hearings--to address this problem and create new problems that will = impose=20 unfair burdens on States and employers, particularly small businesses.=20

When I am back in Wyoming, I like to hold town = meetings so=20 I can find out what is on the minds of my constituents. At each town = meeting,=20 there is usually someone in attendance who is quite concerned about = Government=20 regulations. I am often told to rein big government in, keep the rules = and=20 regulations simple and responsive, and make sure they make sense.=20

This amendment takes the opposite approach. It is a = classic=20 example of one size fits all that doesn't fit outside the beltway.=20

The amendment ignores the careful consideration = Congress=20 has given to existing employment laws with vague and broad language that = conflicts with current Federal employment law. Lawyers, not domestic = violence=20 victims, will be the big winners in this one.=20

I will close by sharing a letter from a survivor of = domestic violence who divorced her first husband in 1978 because of = abuse and,=20 in addition, is an employment attorney with 23 years of experience = specializing=20 in employment law.=20

I ask unanimous consent to print the letter in the=20 RECORD.=20

There being no objection, the material was ordered = to be=20 printed in the RECORD, as follows:=20

OVERLAND PARK, KS,=20

March 22, 2204.
Re Murray amendment S.A. = 2859=20 (Domestic Violence Prevention Act) to H.R. 1997 (Unborn Victims of = Violence Act=20 of 2004).=20

Senator SAM BROWNBACK,
Hart Senate Office = Building,=20
Washington, DC.=20

DEAR SENATOR BROWNBACK: I am writing to ask = that you=20 oppose S.A. 2859 (Domestic Violence Prevention Act), proposed by Senator = Murray=20 as an amendment to H.R. 1997.=20

I have reviewed the Murray Amendment from what I = believe is=20 a rather unique perspective. I am a survivor of domestic violence and = divorced=20 my first husband in 1978 because of the abuse. I have also served on the = Board=20 of Directors for two organizations devoted to the prevention of domestic = violence (see attached Exhibit ``A'' for more information). In addition, = I am an=20 employment attorney with almost 23 years of experience specializing in=20 employment law.=20

As a result of my background and experiences, I am=20 sensitive to the victims' perspective, but also sensitive to the = employers'=20 perspective. To say the least, the path from victim status to survivor = status is=20 not easy, and it is beneficial for victims to have resources available = to help=20 them. At the same time, I am aware of the challenges faced by employers = in=20 complying with new employment laws, especially laws with good intent but = which=20 are poorly written and which have not been given proper thought.=20

Although I very much appreciate the intent of the = Murray=20 Amendment, I cannot support it, particularly Subtitle A (Entitlement to=20 Emergency Leave for Addressing Domestic and Sexual Violence). Its intent = may be=20 laudable, but it will have unintended consequences that could easily be = avoided=20 if a more thoughtful approach to such a law were to be taken.=20

I have a number of concerns about Subtitle A of the = Murray=20 Amendment. I have summarized my primary concerns below (with a more = detailed=20 explanation attached as Exhibit ``B''):=20

1. Potential for Misuse and Manipulation. Subtitle = A has=20 many loopholes that will allow it to be misused and manipulated by = employees and=20 their abusers. I have identified five different ways that Subtitle A can = be=20 easily misused or manipulated (see Exhibit ``B''). The potential for = misuse and=20 manipulation is directly related to the fact that an employee merely has = to sign=20 a self-serving certification stating that he/she is a victim of domestic = violence. No verification is required, nor are any mechanisms included = in=20 Subtitle A to enable an employer to question the veracity of the = certification=20 or to prevent fraud.=20

2. Perpetuation of Domestic Violence. One of the = outcomes=20 of Subtitle A will be the perpetuation of domestic violence in some = situations.=20 This can occur in two ways. First, an abuser will be able to force a = victim,=20 under threat of violence, to take domestic violence leave from work = whenever the=20 abuser wants the victim to take time off from work for reasons unrelated = to the=20 proposed law's stated purposes. Second, a victim who is not making any = effort to=20 remove himself/herself from a domestic violence situation can simply = take time=20 off work after suffering abuse to ``recover'' from injuries, even if = he/she=20 seeks no medical or other help. In either situation, domestic violence = leave=20 will become a method of merely ``managing'' or ``tolerating'' abuse and = threats=20 of abuse. It will enable abuse instead of helping a victim become a = survivor.=20

3. Adequate Time Off From Work Already Available. I = seriously question the necessity of this law. I believe that most = employees=20 already have adequate time off work programs available to them in the = event they=20 need domestic violence leave. Those time off programs include family and = medical=20 leave under the Family and Medical Leave Act (FMLA) and its state = counterparts,=20 leave of absence or other accommodations under the Americans with = Disabilities=20 Act (ADA) and its state counterparts, employers' existing vacation and = sick day=20 policies, and employers' existing attendance policies. The proponents of = Subtitle A have not provided any data to verify that employers' existing = time=20 off programs are inadequate.=20

4. Lack of Due Process for Employers. Considering = that=20 Subtitle A requires employers to provide a new benefit to employees, I = find it=20 appalling that employers have had no opportunity to provide input or be = heard on=20 this proposed law. Basic principles of fairness would seem to suggest = that=20 employers be given due process (rather than be dictated to) on an issue = of this=20 importance. I have no doubt that employers could provide very useful = comments=20 and suggestions.=20

Subtitle A of the Murray Amendment raises many = questions=20 that obviously have not been given much, if any, thought. This letter is = by no=20 means to be read as including all of my concerns about Subtitle A. I = have=20 others, but have tried to focus on the major ones in this letter.=20

For the sake of sound policy for victims of = domestic=20 violence like myself, for other employees who will have to absorb their = workload=20 when they are absent due to domestic=20

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violence issues, and for = employers who will=20 have to comply with this proposed law, I urge you to oppose Senator = Murray's=20 Amendment S.A. 2859. Thank you for your thoughtful consideration of my = comments.=20

Sincerely,
SUE KENNEDY WILLMAN. =

Mr. ENZI. She writes:=20

Although I very much appreciate the intent of the = Murray=20 amendment, I cannot support it.=20

She gives an explanation and lists four very = specific=20 reasons: One, the potential for misuse and manipulation; two, the = perpetuation=20 of domestic violence; three, adequate time off from work already = available; and=20 four, the lack of due process for employers.=20

This is a person who has been there. This is a = person who=20 has been abused. She did find a way out. And incidentally, in her = credentials,=20 she has devoted most of her life to helping battered women in the Kansas = City=20 metro area and has an astounding record of doing that and is very = concerned=20 about us going this way.=20

Again, without a hearing, I am concerned, too. I = urge my=20 colleagues to oppose this amendment, and I yield the floor.=20

The PRESIDING OFFICER. The Senator from Washington. =

Mrs. MURRAY. Mr. President, I listened carefully to = the=20 Senators from Ohio and Utah and Wyoming express their concerns about the = amendment as we have written it. I know the underlying bill was not = marked up in=20 committee either, so I find that argument hard to believe.=20

I hear their argument. I understand they are going = to=20 defeat this amendment. I want to move forward on the issue of domestic = violence.=20 It is extremely important that when we are talking about the abuse of = women,=20 that we do something to prevent it. I want to make sure we do take a = step=20 forward.=20

Therefore, I ask unanimous consent to send a = modified=20 amendment to the desk.=20

Mr. DeWINE. I object.=20

The PRESIDING OFFICER. Objection is heard.=20

Mrs. MURRAY. Mr. President, that is frustrating. I = listened=20 to the Senators from the other side say they want to do something about=20 prevention. I hear them saying they have objection to specific concerns. = I am=20 willing to make a modification to my amendment to move it forward. It is = fairly=20 clear the Republican leadership simply doesn't want to engage in a = serious=20 debate to address the cycle of violence. That is unfortunate. We could = take=20 steps forward to change lives for women who have been victims of abuse.=20

I yield 15 minutes to the Senator from Louisiana, = and I ask=20 unanimous consent that she be listed as a cosponsor of the amendment.=20

The PRESIDING OFFICER. Without objection, it is so = ordered.=20

The Senator from Louisiana is recognized for 15 = minutes.=20

Ms. LANDRIEU. Mr. President, I come to the floor to = support=20 my colleague from the State of Washington and her comprehensive = amendment on=20 this important bill and discussion this afternoon. I thank her for the=20 extraordinary work she has done in the area of domestic violence, not = just this=20 year but in every year she has been a Member of this body, over a long = period of=20 time, her intense interest and advocacy for women and for children and = for=20 families and for communities which her effort shows today.=20

I have a great deal of respect for the Senator from = Ohio.=20 He and I usually don't find ourselves on opposite sides, so it is = unusual that I=20 would be here supporting an amendment and the Senator from Ohio, Mr.=20 DeWine, would be opposing it. I understand there are a few--not = many--good reasons that people could raise today against this amendment. = But I=20 will tell you what one of the reasons is not that I have heard in this = Chamber=20 and I have seen sent out by such groups as the U.S. Chamber of Commerce = and the=20 U.S. Right to Life organization, two organizations that oppose Senator=20 Murray's amendment. They have some legitimate arguments in this = document about some of the details of the amendment, but they also go so = far as=20 to say that one of the reasons we should not support this amendment is = because=20 it is irrelevant to the underlying subject.=20

Irrelevant? Domestic violence is irrelevant to the = deaths=20 of pregnant women, when experts across the board, Republican and = Democratic,=20 people who have been prosecutors before--go look at any study--will tell = you the=20 majority of women who are killed in the latter terms of their = pregnancies are=20 killed not by strangers, not by people who just happen on to their = house, but=20 they are killed by the hands of their husbands or the fathers of their = children?=20

I have to sit here and read a vote alert from the = Chamber=20 of Commerce, supposedly representing women who own businesses, = supposedly=20 representing women, many of whom are business owners, who perhaps have = been=20 victims of domestic violence, and not a word in this memo about ``so = sorry that=20 you were beaten so badly that you and your unborn died,'' nothing. They = go on to=20 say this is an inappropriate vehicle for this amendment because the = issues=20 involved are ``completely unrelated.''=20

I hope my Chamber of Commerce in Louisiana did not = approve=20 this document because I don't believe businesses in Louisiana think = these=20 subjects are unrelated, since one of the recent things that just = happened in my=20 State was a woman shows up to go to work about 2 years ago in Jefferson = Parish,=20 gets out of her car, and in front of about 50 people, going through the=20 revolving doors to get into her place of business, her husband comes up = to her,=20 takes out a revolver, sticks it in her face and blows her head off. = Whether she=20 was pregnant or not, I can't recall. But to say that it is irrelevant to = the=20 subject that we are debating is an insult to many people.=20

Let me clarify one other point. People come to this = floor=20 and act like the Senator from Washington and the cosponsor, who was = Senator=20 Wellstone, before his death--he did a magnificent job on this subject = the years=20 he represented his State in the Senate. In his memory, I will say this: = He=20 worked like a Trojan on this subject. This bill was introduced in the = 106th=20 Congress, the 107th Congress, and the 108th Congress. But this bill, = although=20

there has been one hearing, pushed mostly by = Democrats, has=20 never received a markup, not in the 106th, 107th, and not in the 108th.=20 Evidently, there is not enough Republican leadership thought that this = is an=20 important subject to discuss.=20

Those of us who came to the floor today to debate = this=20 issue to try to protect people from murder--women and, yes, their unborn = children--wonder what we have actually accomplished today because with = the=20 underlying bill, the only way you can prosecute people is if the murder = actually=20 occurs on Federal property.=20

The bill we are going to pass today is not nearly = as good=20 as the 21 or 31 statutes that are already on the books that are = legitimate and=20 genuine efforts. When we asked to have some help for the victims of = domestic=20 violence, who are women and their children, we get all kinds of ``can't = do it,''=20 ``too complicated,'' ``too expensive.'' Then I have to read the Chamber = of=20 Commerce business alert that says the whole subject is not relevant.=20

I want to read from ABCNEWS.com for the = RECORD,=20 ``Expectant Victim,'' April 25.=20

On Monday, police found the remains of 20-year-old = April=20 Renee Greer, whose dismembered body was found in a trash can that had = washed=20 into a farmer's field. She was 8 1/2 months pregnant when she was = reported=20 missing on March 8.=20

Experts and women's advocates are not surprised to = find=20 that pregnant women are especially prone to violent deaths. In many = cases,=20 pregnant women are killed by their husbands or significant others.=20

``Most pregnant women are killed by people they = know, like=20 husbands or boy friends''. .....=20

Think of that. It is one thing to get attacked in a = dark=20 alley by somebody you don't know; you are coming home later than you = should be.=20 It is another thing to be beaten to death by someone who is supposed to = love=20 you. It is very terrible for a child to sit there and watch their = father, in=20 many cases, beat up their mother in front of them. It breaks more than = their=20 spirit. It crushes their heart and destroys their life.=20

You would think that somebody on the other side of = the=20 aisle would think this was significant and relevant and would want to do = something about it and put some money in this bill to do something about = it.=20 But, no, we don't have time for it, we can't have a hearing on it, and = it is too=20 complicated for anybody to understand.=20

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I don't think this is complicated. Let me go on to = read=20 this:=20

``Sometimes it depends on how far along the woman = is in the=20 pregnancy,'' she said.=20

This is Pat Brown, a criminal profiler and CEO of = the=20 Sexual Homicide Exchange. I am sorry, I don't know what State.=20

``Sometimes it depends on how far along the woman = is in the=20 pregnancy,'' she said. ``If it's a serial killer, they normally go after = women=20 who may be three months pregnant and are not showing very much. With = serial=20 killers, the women are tiny, easy to handle, not too big--someone they = can=20 easily overcome. They go after a `neat package,' something that is = desirable=20 where they could get something big.=20

``With husbands or boyfriends, women tend to be = eight=20 months pregnant--they're there and the baby is coming,'' Brown = continued. ``They=20 can see the woman and unborn child as something that is in the way, = keeps them=20 from living the lifestyle they want.''=20

And we come to the floor and ask for a little help = for=20 domestic or sexual violence, maybe a little time off of work to get her=20 situation in order because her husband is working and he also happens to = be the=20 one beating her. She needs 30 days to get a job. They say: No, we cannot = give=20 you 30 days. We ask for 30 days of unpaid leave, and the Chamber of = Commerce=20 goes wild saying they can't afford it--and they don't have to pay for = it.=20

We talk about increasing grants to local = communities to=20 help them provide shelters, since we have not seen a significant = increase in=20 shelters, but that is too complicated.=20

So I ask, What have we done today? Are we going to = save any=20 lives, whether it is the life of the unborn, or whether it is the life = of a=20 woman? No, because there is no money in this for prevention. We, = obviously, want=20 to just prosecute people in a very small place, on Federal land, maybe = just to=20 make a point. I came to the Senate to do more than just make a point, = and I=20 think the Senator from Washington came here to make more than a point. = We came=20 here to make a difference. This afternoon, there is no difference being = made and=20 it is a shame.=20

In conclusion, I want to say something about the = Right to=20 Life Association. I have worked with them on cloning. I don't support = human=20 cloning. Some people do; I don't. I have worked with them. When they = came to my=20 office yesterday to tell me they were sorry that they could not support = the=20 Murray amendment because it would ``mess up the bill''--and they need a = clean=20 bill--I would like to think they need an effective bill. But they just = need a=20 clean bill. For what, I am not sure. Maybe for television commercials.=20

I think we need an effective bill. I would like to = prevent=20 these deaths of unborn children, of women, give prevention on the front = end, and=20 then go ahead and prosecute people. In my State, that is what we do = because we=20 already=20

have a law on the books. So I am happy that = Louisiana is=20 already there. The Right to Life Association said they could not support = help=20 for domestic violence victims because they, again, agreed with the = Chamber of=20 Commerce that it is not relevant.=20

I hope people who support the Right to Life = Association=20 might write them an e-mail or something today and explain to them that=20 regardless of how you feel, whether you are pro-choice or pro-life, = clearly,=20 this is relevant to the underlying bill.=20

With that, I yield the floor. I support the Murray=20 amendment.=20

The PRESIDING OFFICER. The Senator from Ohio is = recognized.=20

Mr. DeWINE. Mr. President, before I yield = to my=20 friend and colleague from Alabama, let me say that I understand what my=20 colleague from Louisiana has said and what my colleague from Washington = State=20 has said. I will reiterate what I said a few minutes ago.=20

The reality of the way this place works, the way = the House=20 works, is that whatever the merits of this amendment, the passage of = this=20 amendment will effectively mean, that the underlying bill will simply = die. The=20 only thing to prevent the underlying bill from going to the White House = and=20 being signed by the President of the United States is the Murray = amendment. That=20 is what the facts are.=20

If the Murray amendment is attached to this bill, = we can=20 kiss this bill goodbye. That is a fact. I yield to my colleague from = Alabama.=20

The PRESIDING OFFICER. The Senator from Alabama is=20 recognized.=20

Mr. SESSIONS. Mr. President, I thank the Senator = from Ohio=20 for his leadership on this issue. He has taken the issue and considered = it=20 thoughtfully and prepared a seven-page piece of legislation that I = believe, as a=20 former prosecutor, stands the test of careful draftsmanship and is = worthy of=20 passage. I believe we have a majority in the Senate prepared to pass = this=20 legislation. But it is threatened by this amendment. The Senator is = correct that=20 if this amendment passes, this bill will not become law. So a vote for = this=20 amendment is a vote against the underlying legislation.=20

I further say the amendment--the 158-page = amendment--is not=20 so carefully drafted, has quite a number of problems, and does not deal=20 effectively with the issue that the Senator seeks to promote.=20

The day before yesterday, in my office, I met with = a group=20 of people from one of America's great corporations, an international=20 corporation. I asked the human resources officer--and I asked them = all--how=20 things were going out there and what can we do to help, what problems do = they=20 have. The human resources officer said: The one thing causing us the = most grief=20 is the Family Leave Act. For a lot of different reasons, complex = reasons, this=20 act is subject to abuse. We certainly believe and support a mother being = home=20 with a young child. We support the purposes of the act, but there are = problems=20 with it. We would like for you to look at it and see.=20

That was shared with me the other day. It was = totally=20 unrelated to this 158-page amendment that has not undergone careful = scrutiny,=20 and I believe goes much further and provides benefits that far exceed = what is=20 under the current Family Leave Act, which has problems with it.=20

We need to, as Members, be careful what we pass, = what we=20 mandate on private entities, and what we tell them they must do. We = should do so=20 in a way that furthers the public policy we want to further, which is to = help=20 families who need leave for family emergencies. We want to do that, and = the act=20 does it in many different ways. But it is not perfect. This amendment is = even=20 less perfect.=20

Let me show you a couple things we discovered in a = brief=20 reading of the Murray amendment. It says:=20

The term ``victim of domestic or sexual violence'' = includes=20 an individual whose family or household member has been a victim of = domestic or=20 sexual violence.=20

Clearly, I think I can say, as a former prosecutor, = that=20 would include the perpetrator. That would include the wrongdoer. So now = is the=20 wrongdoer going to be able to ask for time off? The law would mandate = it, I=20 suspect. Some say that would not happen. But I am telling you, people = use the=20 law as it is written to further their agendas when they want to. Maybe = he had to=20 go to court to defend himself, and he is going to claim time off for = that. I bet=20 you his lawyer would say he is entitled to time off.=20

Here is another one:=20

The term ``employee'' means any person employed by = an=20 employer on a full or part-time basis, for a fixed time period, on a = temporary=20 basis, pursuant to a detail, or as an independent contractor.=20

That is not even in the current Federal Leave Act. = So we=20 have added this statement. So the businessperson has to take care and = provide=20 leave or suffer. I think that is a step to which we ought to give a lot = of=20 thought before we put it into law.=20

Another thing that hit me in talking with this lady = the day=20 before yesterday, and talking about problems with the act, is the = difficulty of=20 a business in having any proof to ascertain that the person really does = need=20 leave. Under the act, after you get one approval, say, for a child's = asthma, you=20 never have to present proof again,=20

or even just make a statement that it is so and the = businesses are bound by it.=20

A lot of businesses on a manufacturing basis try to = do=20 things well. They have a team that produces a product. When one member = of that=20 team unexpectedly or routinely misses, it makes it difficult for them. = If they=20 have a legitimate excuse, OK. This says:=20

An employee may satisfy the certification = requirement of=20 paragraph (1) by providing to the employer ..... a sworn statement of = the=20 employee.=20

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That automatically takes care of it--no proof of a = doctor's=20 certificate, a lawyer's statement, or anything else. I just point that = out.=20

The hour is late. As a member of the Health, = Education,=20 Labor, and Pensions Committee, as Senator Enzi said so = eloquently and=20 in detail, these issues need to be given careful thought. Let's don't = kill this=20 underlying bill Senator DeWine worked so hard on and has dealt = with so=20 many Members of this body to refine language so everybody can agree to = it and it=20 will have a majority vote.=20

Let's don't kill this legislation that is important = to=20 protecting those unborn victims of violence in America by tacking on an=20 amendment that is not ready, that has problems with it, on which we have = not had=20 hearings and should not be added to this bill, anyway. If it is added to = the=20 bill, the bill will be in trouble.=20

I thank the Chair. I thank Senator DeWine = for his=20 leadership. I yield the floor.=20

Mr. DeWINE. Mr. President, I yield time to = the=20 Senator from Minnesota.=20

The PRESIDING OFFICER. The Senator from Minnesota = is=20 recognized.=20

Mr. COLEMAN. Mr. President, I had a chance to hear = my=20 colleague from Ohio speak in humble terms about the work he did, the = commitment=20 he made when he was working in Ohio at the State level and now in the = Senate=20 regarding issues of domestic abuse and sexual violence.=20

I don't know if there is a stronger champion in the = Senate=20 than my colleague from Ohio, Senator DeWine, on these issues. I = know=20 where his heart is. I know where his passion is.=20

When I look at the Murray amendment, there are = provisions=20 in this amendment I would like to support. There are principles in this=20 amendment on which I would like to work with her and I would like to see = happen.=20 I believe--I know my colleague from Ohio feels the same way, and we have = to be=20 very candid, we have to be very blunt--that the reality is that the = effect of=20 the Murray amendment, if it were to pass, would simply kill the = underlying bill.=20

We have an opportunity to do something today for = unborn=20 victims of violence. We have an opportunity to do something. Or we can = do what I=20 see going on far too often in this Chamber, and that is to--I don't know = whether=20 it is political gamesmanship, I don't know if it is ``gotcha'' policy, I = don't=20 know what it is, but it is not about getting something done. We can get=20 something done today. We can pass a clean Unborn Victims of Violence = Act. For=20 those of us who would like to work with my colleague from Washington on = some of=20 these important principles, who really want to get something done, let's = be=20 honest and let's do it in a form and manner in which we know something = will=20 happen.=20

If this amendment is attached to this bill, this = bill dies.=20 Some of the principles I may believe in and want to work on that are in = the=20 Murray amendment will go nowhere, and we all know that.=20

I did not come here to play a game, to participate = in=20 endless debates for the sake of debating, to cast votes to be measured = on ``you=20 are for sexual violence or you are against.'' That is not what this is = about. I=20 got elected on a belief that we could get some things done, and that is = hard in=20 this body because it is so easy to kill a bill. It is so easy to tack on = an=20 amendment that is so hard to vote against because we are afraid of being = accused=20 of being against domestic violence.=20

I am passionate about dealing with domestic = violence. I was=20 a prosecutor in the State of Minnesota and prosecuted some of the early = child=20 abuse cases. I was mayor of the city of St. Paul. I thought we did = cutting edge=20 things to deal with domestic and sexual violence. I want to do more = about=20 domestic and sexual violence while I am here in the Senate, but we are = not going=20 to do more about it by voting for the Murray amendment today.=20

I am going to cast my vote against the Murray = amendment,=20 even though I share a belief in some of the principles the good Senator = from=20 Washington is trying to raise. I am going to vote against it because I = want to=20 get something done, and the one opportunity we have today, I say to my=20 colleagues, to get something done is to pass out of this body a clean = Unborn=20 Victims of Violence Act. If we pass this bill and it is signed into law, = we have=20 provided protection on the Federal level--by the way, it is similar to = what many=20 States do and what we do in the State of Minnesota--for a mom and an = unborn=20 baby, such as the Laci and Conner Peterson case. We all know many cases = like=20 that.=20

Again, I appreciate the principles my colleague = from=20 Washington is attempting to raise, but I think it is time to be very = blunt and=20 very honest. If you want to do something about that issue, this bill is = not the=20 place to do it. It will not go forward. It will not further the ends = about which=20 we are talking.=20

We have an opportunity to do something today, and = that is=20 to pass the Unborn Victims of Violence Act. I support this bill in a = clean=20 manner. Tomorrow I will work with my colleague from Washington and my = colleague=20 from Ohio and do what needs to be done to further some of the very = laudable=20 goals she desires.=20

Mr. President, I yield the floor.=20

The PRESIDING OFFICER. The Senator from Ohio.=20

Mr. DeWINE. Mr. President, I yield to my = colleague=20 from Oklahoma. How much time do I have?=20

The PRESIDING OFFICER. Eleven minutes 50 seconds.=20

Mr. DeWINE. I yield to my colleague from = South=20 Carolina first.=20

The PRESIDING OFFICER. The Senator from South = Carolina.=20

Mr. GRAHAM of South Carolina. Mr. President, I = thank=20 Senator DeWine for yielding. I will be brief.=20

We just rejected the idea Roe v. Wade rights should = be used=20 by criminals to avoid prosecution for their criminal activity that = results in=20 the mother being denied to have a child. Roe v. Wade is an honest, = genuine=20 debate that exists in this land. Eighty percent of Americans, when = polled,=20 believe if a criminal takes the right to have a child away from a = mother, they=20 ought to be prosecuted to the fullest extent of the law for what has = happened to=20 that family--damage to the mother and damage to the unborn baby.=20

Professor Walter Dellinger, a former adviser to = President=20 Clinton, said:=20

..... although he is a strong advocate for a = woman's right=20 to choose abortion, he sees no major problem with fetal-homicide laws. = ``I don't=20 think they undermine Roe v. Wade,'' he said. ``The legislatures can = decide that=20 fetuses are deserving of protection without having to make any judgment = that the=20 entity being protected has freestanding constitutional rights. I just = think that=20 proposals like this ought to be considered on their own merit.''=20

That is all we are asking. Senator Murray = has a=20 very long and complicated amendment that deals with domestic violence, = family=20 leave, and other issues. South Carolina, to its shame, for lack of a = better=20 word, has one of the leading number of domestic violence cases against = women.=20 Our legislature is dealing with that. We can do more here. But this = should stand=20 on its own.=20

Just as we said no to Roe v. Wade being an = impediment to=20 prosecuting a criminal who attacks a mother who chooses to have a child, = we will=20 not let the criminal benefit from Roe v. Wade, nor should we allow an = amendment=20 to destroy a bill whose purpose is to put people in jail who attack = pregnant=20 women and do damage to the mother and the child.=20

No good purpose is served by destroying this bill, = even=20 though the underlying problem is very real. This bill should stand on = its=20 merits. There are more cases such as this than we would all like to = admit. We=20 have a chance to do something about it today. Please vote against = Senator=20 Murray's amendment.=20

The PRESIDING OFFICER. The Senator from Ohio.=20

Mr. DeWINE. Mr. President, I yield to my = colleague=20 from Oklahoma.=20

The PRESIDING OFFICER. The Senator from Oklahoma.=20

Mr. NICKLES. Mr. President, to inform my colleague = from=20 Washington, at the appropriate time, when she concludes her statement, I = plan on=20 making a budget point of order.=20

First, I compliment my colleague, Senator = Graham=20 from South Carolina, for his leadership on this issue for years. I = believe today=20 we are going to pass a bill that is long overdue.=20

I also compliment my colleague, Senator = DeWine=20 from Ohio, for his leadership.=20

I complimented him in private. I have observed his = very=20 high quality of debate. We have had some excellent debate today, and I=20 compliment Members=20

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on all sides. I think it has = been very=20 important and we are going to pass a good bill today, largely due to the = leadership of the Senator from Ohio, Mr. DeWine, and also = Senator=20 Graham of South Carolina. I compliment both of our colleagues = for their=20 effort. This is an important bill, one that deserves to be passed and = sent to=20 the President.=20

I rise today to speak against the amendment of our=20 colleague from Washington. I have great respect for our colleague from=20 Washington, especially for the title of the amendment. The Wellstone = Domestic=20 Violence Act is very well named, but when looking at the substance of = the bill I=20 find it leaves a lot to be desired.=20

I happen to believe in the legislative process. = This bill=20 has not had a hearing. I happen to be on the Finance Committee. There = are two or=20 three things that deal with Finance Committee issues that we have not = touched.=20 It did not go through the Labor Committee. It addresses family leave, = not the=20 Family Medical Leave Act. It is basically a whole new act. It is not = consistent=20 with the Family Medical Leave Act. To qualify for the Family Medical = Leave Act,=20 we exempt employers with 50 employees or less. This says employers of 15 = or=20 less. That does not make sense to me.=20

I look at the unemployment section of it, and a lot = of=20 people are not even aware of this--I have not heard very much debate = about=20 this--but if a State does not comply with the unemployment dictates = given by=20 this bill we tell the States they must have unemployment compensation = for people=20 who are victims of abuse as defined by this. The tax to the State goes = from $56=20 a year to $434 a year. That is a 675-percent increase. That is a heavy = penalty=20 on the States.=20

One could say, well, they give States time to amend = their=20 law. They are given 25 days if they are in session and 180 days if they = are not=20 in session. Oklahoma is shortly going to be out of session and we do not = go back=20 into session for the rest of the year, so 180 days would not be = adequate. I=20 guess there would have to be a special session. I used to serve in the = Oklahoma=20 Legislature. Most legislatures are kind of like Congress, they do not = move that=20 fast. If they do not move that fast, they have a very heavy penalty = increase in=20 their unemployment compensation taxes.=20

The main thing I guess I am objecting to, as I look = at it,=20 there is a new tax credit in this bill. It is a 40-percent tax credit = for a=20 provision that is very expensive. It applies to a lot of things. It = applies to a=20 long definition that would qualify expenses that an employer might incur = to=20 implement workplace safety.=20

I used to be an employer in the private sector, and = I know=20 all employers are interested in safety. Almost all of those expenses = related to=20 safety are expensed. None of them, to my knowledge, get a tax credit. = This=20 amendment would say, for some safety provisions employers are going to = get a=20 40-percent tax credit.=20

Then I started looking at the definition. It = applies to=20 basically any new security personnel, purchase, or installation of new = security=20 equipment and so on. That is wide open. In this day and age of terrorist = threats, there are a lot of people who are going to be hiring more = security=20 personnel and they are going to say: Thank you very much, Government, = because=20 you just gave us a 40-percent tax credit.=20

If a company is profitable, that is worth a lot. If = they=20 are not profitable, it is not worth much.=20

I asked the Joint Tax Committee to give an estimate = on how=20 much this would cost. I just received it. I ask unanimous consent that a = letter=20 I received from Dr. George Yin, that gives the revenue estimate, be = printed in=20 the RECORD.=20

There being no objection, the material was ordered = to be=20 printed in the RECORD, as follows:=20

JOINT COMMITTEE ON TAXATION,=20

Washington, DC, March 23, 2004.
Hon. DON=20 NICKLES,
U.S. Senate, Committee on the Budget,=20
Washington, DC.=20

DEAR SENATOR NICKLES: This letter is in = response to=20 your request dated March 17, 2004, for a revenue estimate for Senate = amendment=20 2859, which according to your request may come up for a vote on March = 24, 2004,=20 under a unanimous consent agreement for H.R. 1997.=20

In general, the amendment would establish a new = general=20 business tax credit equal to 40 percent of the domestic and sexual = violence=20 safety and education cost paid or incurred by an employer during the = taxable=20 year. Any amount taken into account for purposes of determining the = credit would=20 not be eligible for any other credit or deduction. Under the amendment, = the=20 types of cost that may be included for purposes of determining the = amount of the=20 credit include, among other things, the hiring of new security personnel = and the=20 purchase or installation of new security equipment, the purpose of which = is to=20 address domestic or sexual violence. Because the hiring of all new = security=20 personnel and the purchase or installation of all new security equipment = is, in=20 part, for the safety of employees, we have assumed that all such = expenditures=20 would be eligible for the tax credit.=20

The amendment would apply to taxable years = beginning after=20 December 31, 2003. Estimated changes in Federal fiscal year budget = receipts are=20 as follows:=20

[By fiscal years in billions of dollars]
2004=20

-0.6
2005=20

-1.3
2006=20

-1.5
2007=20

-1.7
2008=20

-1.8
2009=20

-1.8
2010=20

-1.9
2011=20

-1.9
2012=20

-1.9
2013=20

-2.0
2014=20

-2.0
2004-09=20

-8.7
2004-14=20

-18.4

I hope this information is helpful to you. If we = can be of=20 further assistance in this matter, please let me know.=20

Sincerely,
GEORGE K. YIN.=20

Mr. NICKLES. He says the cost of this provision in = 5 years=20 is estimated at $8.7 billion, and over 10 years, $18.4 billion.=20

That is a lot of money. We are going to say = companies get a=20 40-percent tax credit if they do something in the realm of safety, which = one=20 could almost drive a truck through anything and call it safety.=20

I am not a big fan of tax credits anyway, but that = is=20 beside the point. This is a very expensive provision, one, in my = opinion, that=20 has not been well thought out, one that is enormously expensive, one = that is not=20 paid for.=20

A week before last, we had votes saying we should = be paying=20 for these new spending proposals and tax cuts. Well, this is a big tax = cut that=20 is not paid for. Frankly, it is a big loophole that is not paid for. It = also=20 causes other little constitutional problems.=20

We have a Constitution that says all revenue = measures have=20 to originate in the House. We do not have a tax bill before us. This did = not=20 originate in the House of Representatives. I know my colleagues very = well in the=20 House. I respect them and I know they will blue-slip this if this = amendment is=20 passed because this would turn this into a tax bill. So this amendment = would=20 kill this bill.=20

Our colleagues in the House want to pass the bill = as it is.=20 I hope that a majority in the Senate want to pass the bill as it is.=20

As it is, this amendment does a couple of things. = It=20 increases spending and it increases taxes, both of which violate the = budget,=20 both of which I can make a budget point of order against, and at the = appropriate=20 time I will make a budget point of order against this amendment, = certainly for=20 the tax provision, and I will leave it at that.=20

I yield the floor.=20

MURRAY AMENDMENT TO THE UNBORN VICTIMS OF VIOLENCE = ACT=20

Mr. KENNEDY. Mr. President, I support Senator=20 Murray's amendment, and I want my colleagues to support it too. = Violence against women--especially those who are pregnant--is a tragic = example=20 of violence in our society, and we need to do all we can to prevent it. = Congress=20 is right to address this issue and do more to protect women. But if the=20 administration and Congress are serious about addressing the issue of = domestic=20 violence, let us do it effectively, and not turn it into yet another=20 battleground in the debate over abortion.=20

As domestic violence experts and advocates make = clear, the=20 Unborn Victims of Violence Act will do nothing to provide the protection = that=20 battered women need to be safe. Instead of protecting women, the bill = focuses=20 solely on the fetus and what happens after the crime.=20

It does nothing to prevent domestic violence, and = it=20 punishes only one of the many possible consequences of such violence.=20

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The harm to women at the hands of their abusers and = attackers is not addressed anywhere in this bill. The support and = services they=20 need to avoid violence in their homes or escape from it are not = addressed. It=20 offers no financial safety net for women who move away from their homes = to=20 escape from abusers. It does not address children affected by the abuse. = It=20 offers no health care assistance for abused women.=20

The real purpose of this bill is obviously not to = protect=20 and support women who are victims of abuse. Its real purpose is to give = new=20 legal rights to the fetus, in a blatant effort to undermine women's = rights under=20 the Constitution and Roe v. Wade. In other words, this bill is a threat = to=20 women, not a protection for them.=20

Proponents of this measure also call it the Laci = Peterson=20 Act, but this bill would have done nothing to prevent that tragedy. = Federal=20 criminal jurisdiction over violent crimes is very limited. The bill = would apply=20 only to federal and military crimes. It would have no bearing on the law = of=20 California or any other State. Today, 95 percent of all criminal = prosecutions,=20 like the prosecution of Laci Peterson's murderer, take place at the = State or=20 local level.=20

A majority of States already have laws that enable=20 prosecutors to file fetal homicide charges. In Massachusetts, the courts = have=20 treated the fetus as a separate victim of crime if the developing fetus = has=20 reached the stage of viability. That view is consistent with the careful = balance=20 between women's rights and fetal rights established by the Supreme Court = in Roe=20 v. Wade and reaffirmed in Planned Parenthood v. Casey. This bill = completely=20 ignores the Supreme Court's viability standard.=20

In cases where federal law or military law applies, = prosecutors and judges already have ample discretion to impose longer = sentences=20 for flagrant crimes committed against vulnerable victims. Courts have = regularly=20 held that the Federal Sentencing Guidelines provide for a sentencing = enhancement=20 based on the victim's pregnancy or injury to a fetus. The military also = makes=20 clear that the pregnancy of the victim can lead to a harsher sentence.=20

The administration says it wants to prevent = violence=20 against women and children. But that priority is not reflected in the = budget.=20 The President's budget is cutting or starving key violence-prevention = programs.=20

If Congress genuinely intends to do more to prevent = such=20 tragedies, we should be discussing ways to strengthen the Violence = Against Women=20 Act and its funding.=20

Since its enactment in 1994, violence against women = has=20 been reduced by 21 percent, so we are clearly making progress. We are on = the=20 right track, and there's no excuse for making a u-turn.=20

The most urgent priority is the need for additional = funds.=20 The services available today to victims of domestic violence come = nowhere close=20 to meeting the obvious need. The New England Learning Center for Women = in=20 Transition in Greenfield, MA, has to turn away ten families from its = shelter for=20 each family it is able to serve. Life-saving services such as hotlines = and=20 emergency shelters for battered women are funded $48 million below the = level=20 authorized by Congress. Women across the country are not obtaining the = help they=20 need when they face these dangers or suffer from them. We can do far = more than=20 we are doing to see that women do not suffer from domestic violence.=20

Senator Murray's amendment will do that. = Unlike=20 the underlying bill, her proposal will genuinely help to combat the = serious=20 problem of domestic violence in our country.=20

Incredible as it seems, nearly one-third of all = American=20 women report being physically or sexually abused by their husbands or = boyfriends=20 at some time in their lives. A shocking 25 percent to 40 percent of all = women=20 who are battered are battered when they are pregnant. One study found = that 37=20 percent of all women who visited a hospital emergency room for = violence-related=20 injuries were injured by a current or former husband or boyfriend. = According to=20 a study published in the Journal of the American Medical Association, = murder is=20 actually the leading cause of death among pregnant women.=20

Over 3 million children are exposed to parental = violence in=20 the United States every year. According to a report of the American=20 Psychological Association, a young boy who sees his father abusing his = mother is=20 the strongest risk factor for future violent behavior by that child.=20

Far from preventing such violence, the so-called = Unborn=20 Victims of Violence Act will actually prevent victims of abuse from = seeking=20 help. Juley Fulcher, Public Policy Director of the National Coalition = Against=20 Domestic Violence, testified before the House Subcommittee on the = Constitution=20 last July. She said that if a battered woman is financially or = emotionally=20 dependent on her batterer, she is less likely to seek medical assistance = if she=20 thinks it may result in the criminal prosecution of her batterer.=20

The underlying bill contains none of these urgently = needed=20 protections for battered women. The Murray amendment will give them the = security=20 and support they need to leave an abusive relationship before it's too = late.=20

According to a GAO report in 1998, between a = quarter and a=20 half of domestic violence victims report that they lost their job at = least=20 partly because of domestic violence. A victim who was forced to change = her name=20 and Social Security number in order to escape her abuser testified = before the=20 Massachusetts Commission on Domestic Violence. She said that when she = met with=20 the human resources officers at her workplace to explain why she needed = help,=20 she lost her job because they thought her abuser might attack her in the = office=20 and be a safety threat to her co-workers too. Victims of domestic = violence need=20 job stability. They need economic independence in order to leave their = abuser.=20

Without a viable source of income, victims to often = have no=20 way to escape from their abusive relationship.=20

Senator Murray's amendment helps these = victims by=20 guaranteeing them access to emergency leave to obtain medical attention, = counseling or other services without fear of losing their job. It = provides=20 unemployment compensation. It supports the specific training for medical = providers to recognize the signs of abuse, so that frightened women who = arrive=20 in the emergency room with tell-tale bruises will know that help is = available=20 and will be more likely to reveal and seek the further support they = recall is=20 available.=20

It will ensure that children who witness violence = in the=20 home will receive the help they need in order to break the tragic cycle = of=20 violence before it consumes the next generation in their families too.=20

We need laws that genuinely protect women in all of = these=20 ways, as Senator Murray's amendment will do. And it does so = without=20 undermining a woman's fundamental right to choose.=20

The Murray amendment provides long and overdue = support to=20 victims, employers, public health professionals and families to combat = violence=20 against women, and I urge my colleagues to support it.=20

The PRESIDING OFFICER (Mr. CORNYN). The = Senator from=20 Ohio.=20

Mr. DeWINE. I think we are about ready to = close=20 this out.=20

The PRESIDING OFFICER. The Senator from Washington. =

Mrs. MURRAY. Mr. President, if my colleagues on the = other=20 side are going to yield back, I will take a couple of minutes to wrap = up. I know=20 my colleagues want to get to the vote and final passage, so I will take = only a=20 few minutes to end the debate on this amendment.=20

I have listened carefully to the other side. They = raised=20 concerns about the tax credit side of it, and the budget point of order. = I asked=20 unanimous consent to send an amendment to the desk to at least move the = other=20 parts of the bill forward without the objectionable part and they = refused. That=20 says to me that, despite the rhetoric we have heard from the other side, = they=20 are not very willing to do something truly about preventing domestic = violence.=20

I have heard my colleagues on the other side of the = aisle=20 say the reality of this place is that if this amendment gets added that = it will=20 kill the bill. I have been in the Senate almost 12 years and I know the = reality=20 of this place is when Members believe in something and want to solve a = problem=20 we can move mountains to get it done.=20

To the millions of women across this country who = have been=20 victims of domestic violence, what they are going to=20

[Page: S3164]

see on the Senate floor today = is Senators being=20 allowed the opportunity to say whether they are actually going to do = something=20 to prevent domestic violence or if Senators are only willing to deal = with=20 domestic violence after the woman has died.=20

I believe we have the responsibility to do = everything we=20 can to prevent domestic violence. I hope the bill Senators are putting = forward=20 today never has to be used because we have prevented violence, but the = fact is=20 they are going to prevent us today from offering an amendment that would = preclude the underlying bill from ever having to be used. I think that = is a=20 tragedy. I think it is a tragedy for the Senate. I think it is a tragedy = for the=20 country. I certainly think it is a tragedy for women who face abuse = every single=20 day.=20

Two million women are assaulted every year. I = introduced=20 this bill with my colleague Senator Paul Wellstone 3 years ago. We = introduced it=20 in three consecutive Congresses and the other side has not allowed us to = bring=20 it forward. I keep hearing that we have not had hearings on it. Well, we = would=20 love to have hearings on it. We would love to move forward, but it is = always=20 said that the time is never right. That is certainly something victims = of abuse=20 hear far too often.=20

This bill simply allows women the time to be able = to go to=20 court to get a court order to prevent their abuser from tracking them = down and=20 killing them. It allows them the ability to make sure that children who = have=20 seen domestic violence get the kind of help they need so they do not = create a=20 cycle of violence in their lives, which we know happens too often. It = makes sure=20 we offer health care to victims of domestic violence.=20

These are victims who are still alive and need = help. It=20 makes sure our health care providers screen for domestic violence so we = do not=20 end up with murdered victims every single day. Not relevant? The Chamber = of=20 Commerce says this is unrelated? How can anyone look in the eye a woman = who has=20 been abused by a batterer and tell her we are not going to help you = until you=20 are gone, until you die? I think that is a real tragedy. I am sorry my=20 colleagues on the other side see it that way. I don't.=20

I have heard rhetoric out here from some of my=20 colleagues--and I do want to commend the Senator from Ohio. He has = worked on=20 this issue. I do want to work with you. But I find it a tragedy today = that,=20 again, the time is not right. That is what women who are victims of = domestic=20 violence hear every single day: The time is not right. We can't help you = today.=20 That is what we are doing today. I find that a tragedy.=20

I am going to continue to work on this issue. I = know my=20 colleagues on the other side are going to defeat it today. I know they = are going=20 to move on. They have other issues they are going to deal with. But this = issue=20 is critical. I have been to the shelters; I have looked the women in the = eyes; I=20 have promised them I will not forget, and I will not.=20

This amendment is named after Senator Paul = Wellstone. Every=20 one of us here know he and Sheila cared and were adamant that we provide = victims=20 of abuse with the ability to get out of their abusive situation. I hope = my=20 colleagues will continue to work with us and that the rhetoric we have = heard on=20 the other side about working with us is not forgotten when this bill is = gone.=20

The PRESIDING OFFICER. The Senator from Ohio.=20

Mr. DeWINE. I commend my colleague again = for her=20 dedication to this issue, and her passion. But the fact is, as I have = said, this=20 bill cannot pass through this method. It will have the unintended effect = of=20 killing the underlying bill. That is why I must come to the floor and = oppose it.=20

Let me yield the remainder of my time to my = colleague from=20 Oklahoma.=20

Mr. NICKLES. Mr. President, is all time yielded = back from=20 our colleague from Washington?=20

Mrs. MURRAY. Yes.=20

The PRESIDING OFFICER. The Senator from Oklahoma.=20

Mr. NICKLES. Mr. President, this bill has a big tax = provision that is estimated to cost $18.4 billion. Therefore, a budget = point of=20 order does lie against this amendment.=20

Mr. President, I yield the remainder of our time.=20

The PRESIDING OFFICER. All time is yielded back.=20

Mr. NICKLES. Mr. President, the pending amendment = offered=20 by our colleague from Washington, Mrs. Murray, decreases = revenues and=20 if adopted would cause an increase in the deficit in excess of the = levels=20 permitted in the most recent budget resolution. Therefore, I raise a = point of=20 order against the amendment pursuant to section 505 of House current = resolution=20 on the budget for fiscal year 2004.=20

The PRESIDING OFFICER. The Senator from Washington. =

Mrs. MURRAY. Mr. President, pursuant to section = 505(b) of=20 H. Con. Res. 95 of the 108th Congress, I move to waive the Budget Act.=20

I ask for the yeas and nays.=20

The PRESIDING OFFICER. Is there a sufficient = second? There=20 is a sufficient second.=20

The question is on agreeing to the motion. The = clerk will=20 call the roll.=20

The legislative clerk called the roll.=20

Mr. REID. I announce that the Senator from = Massachusetts=20 (Mr. KERRY) is necessarily absent.=20

I further announce that, if present and voting, the = Senator=20 from Massachusetts (Mr. KERRY) would vote ``yea.''=20

The PRESIDING OFFICER. Are there any other Senators = in the=20 Chamber desiring to vote?=20

The yeas and nays resulted--yeas 46, nays 53, as = follows:=20

[Rollcall Vote No. 62 Leg.] YEAS--46

Akaka=20

Baucus=20

Bayh=20

Biden=20

Bingaman=20

Boxer=20

Breaux=20

Byrd=20

Cantwell=20

Carper=20

Clinton=20

Conrad=20

Corzine=20

Daschle=20

Dayton=20

Dodd=20

Dorgan=20

Durbin=20

Edwards=20

Feinstein=20

Graham (FL)=20

Harkin=20

Hollings=20

Hutchison=20

Inouye=20

Jeffords=20

Johnson=20

Kennedy=20

Kohl=20

Landrieu=20

Lautenberg=20

Leahy=20

Levin=20

Lieberman=20

Lincoln=20

Mikulski=20

Murray=20

Nelson (FL)=20

Pryor=20

Reed=20

Reid=20

Rockefeller=20

Sarbanes=20

Schumer=20

Stabenow=20

Wyden=20

NAYS--53

Alexander=20

Allard=20

Allen=20

Bennett=20

Bond=20

Brownback=20

Bunning=20

Burns=20

Campbell=20

Chafee=20

Chambliss=20

Cochran=20

Coleman=20

Collins=20

Cornyn=20

Craig=20

Crapo=20

DeWine=20

Dole=20

Domenici=20

Ensign=20

Enzi=20

Feingold=20

Fitzgerald=20

Frist=20

Graham (SC)=20

Grassley=20

Gregg=20

Hagel=20

Hatch=20

Inhofe=20

Kyl=20

Lott=20

Lugar=20

McCain=20

McConnell=20

Miller=20

Murkowski=20

Nelson (NE)=20

Nickles=20

Roberts=20

Santorum=20

Sessions=20

Shelby=20

Smith=20

Snowe=20

Specter=20

Stevens=20

Sununu=20

Talent=20

Thomas=20

Voinovich=20

Warner=20

NOT VOTING--1

=20

Kerry=20

=20

The PRESIDING OFFICER. On this question, the yeas = are 46,=20 the nays are 53. Three-fifths of the Senators duly chosen and sworn not = having=20 voted in the affirmative, the motion is rejected. The point of order is=20 sustained and the amendment falls.=20

Mr. NICKLES. I move to reconsider the vote.=20

Mr. HATCH. I move to lay that motion on the table.=20

The motion to lay on the table was agreed to.=20

RIGHT TO CHOOSE

Ms. COLLINS. Mr. President, I rise to engage the=20 distinguished Senator from South Carolina, Senator GRAHAM, in a = brief=20 colloquy in order to make clear the intent behind the language in this = bill. It=20 is my understanding that there is nothing in the language of this bill = that=20 would, in any way, undermine the constitutional right of a woman to = choose to=20 terminate a pregnancy, as expressed by the Supreme Court in Roe v. Wade, = and=20 subsequent decisions.=20

I inquire of the Senator, who is one of the = coauthors of=20 the bill, if my understanding of the intent behind the language in the = bill is=20 correct.=20

Mr. GRAHAM. The Senator from Maine is correct. = Nothing in=20 the language of this bill is intended in any way to undermine the legal = basis=20 for abortion rights, as expressed by the Supreme Court in Roe v. Wade, = and=20 subsequent decisions.=20

Based on my extensive experience as a prosecutor in = the=20 U.S. Air Force, this legislation would, however, fill a gap in our = Federal laws.=20

Ms. COLLINS. Mr. President, it is also my = understanding=20 that at least 27 States have statutes that criminalize the killing of a = fetus or=20 an ``unborn=20

[Page: S3165]

child.'' Am I correct in = understanding that=20 there is no legal precedent where a court has held that any of these = State=20 statues in any way undermine abortion rights of a woman, as expressed by = the=20 Supreme Court in Roe v. Wade, and subsequent decisions?=20

Mr. GRAHAM. The Senator from Maine is correct. = There is no=20 legal precedent where a court has concluded that any of these State = statutes=20 undermines the legal basis for abortion rights.=20

Ms. COLLINS. Mr. President, I have one final = inquiry I=20 would like to make of my colleague. It is my understanding that the = intent=20 behind the language of this bill, H.R. 1997, is that this bill, like = those State=20 laws, not be construed to undermine the legal basis for abortion rights. =

Mr. GRAHAM. The Senator from Maine is correct.=20

Ms. COLLINS. I thank my colleague for making the = intent in=20 this respect clear.=20

Mr. VOINOVICH. Mr. President, I rise today in = strong=20 support of the Unborn Victims of Violence Act. I firmly believe that we = need=20 this legislation to correct the loophole in federal law that currently = does=20 nothing to criminalize violent acts against unborn children. Sadly, we = live in a=20 violent world where unborn babies are the victims, intended or = otherwise, of=20 violent acts. I find this horrifying, and believe that all children, = born or=20 unborn, are a precious gift and responsibility.=20

This is something we have already recognized in = Ohio. I am=20 proud to say that we got this done on my watch when I was Governor of = Ohio. In=20 June 1996, I signed legislation making it a crime to injure or kill a = prenatal=20 child who could survive on his or her own outside the mother's womb. We = passed=20 this legislation in record time due to public outcry over a case in = Indian Hill,=20 a suburb of Cincinnati in 1995. Joseph Daly's wife and her unborn baby = were=20 killed in a car accident when a drunk driver hit her car. People were = outraged=20 that action could be brought on behalf of Mrs. Daly, but not their = unborn=20 daughter, who was 2 weeks away from being born. And people will be = outraged.=20

Under current Federal law, an individual who = commits a=20 Federal crime of violence and kills or injures an unborn child cannot be = prosecuted separately for those violent acts against the unborn child = because=20 Federal criminal law does not recognize the unborn child as a crime = victim. Can=20 you imagine? A baby that could be viable outside of its mother's womb = would not=20 be considered a crime victim? This bill will close that gap.=20

Under this bill, if an unborn child is injured or = killed=20 during the commission of a Federal crime of violence, the assailant = could be=20 charged with a separate offense on behalf of the unborn child. In 29 = States,=20 including Ohio, if a person commits a crime of violence against a = pregnant woman=20 under State law and kills or injures her unborn child, that person can = be=20 punished for the violence against both the mother and the unborn child. = But if a=20 person commits a Federal crime of violence against a pregnant woman and = injures=20 or kills her unborn baby, the death or injury of the unborn child would = not be=20 punished as a crime.=20

This bill extends the protections currently = available in 29=20 States to the unborn victims of violent acts committed in violation of = Federal=20 law. Thus, where a Federal crime of violence has been committed and the = injury=20 or death of an unborn child results, the perpetrator will be held to = account for=20 the crime of violence against the unborn child.=20

I know some of my colleagues will want to paint = this as an=20 abortion issue. But, it is important to note that this bill has been = drafted=20 narrowly to apply only where the death or injury to the unborn baby = occurs as a=20 result of an existing Federal crime. The bill expressly excludes any = death or=20 injury to an unborn baby caused by abortion, any medical treatment of = the=20 mother, or an act of the mother herself.=20

As I stated before, we live in a violent world = where unborn=20 babies are the victims, intended or otherwise, of violent acts. And = these=20 babies, the smallest and most helpless victims, deserve justice, too. We = must=20 pass this legislation and take a stand against crimes committed against = women=20 and children. I therefore ask my colleagues to support this very = important=20 legislation.=20

Mr. BOND. Mr. President, I rise today to express my = support=20 for the Unborn Victims of Violence Act.=20

Any pregnant woman will tell you that all she wants = is for=20 her baby to be born healthy. A pregnant mother can take her vitamins, = follow the=20 instructions of her doctor, and do everything in her power to deliver a = healthy=20 baby. But, no amount of prenatal care can protect her unborn child from = the=20 hands of a violent criminal.=20

This question before us is simply--when a violent = crime is=20 committed against a pregnant woman--is there one victim or two? Pregnant = women=20 who have been harmed by criminal violence and their families know that = there are=20 two victims.=20

In a letter to the sponsors of this bill, the = family of=20 Laci and Conner Peterson, whose lives were brutally ended, requested = that the=20 bill before us today be referred to as ``Laci and Conner's Law in their=20 memory.'' The Peterson family can, better than any of us, express the = impact of=20 this terrible loss. They wrote, ``As the family of Laci Peterson and her = unborn=20 son, Conner, this bill is very close to our hearts. We have not only = lost our=20 future with our daughter and sister, but with our grandson and nephew as = well.''=20 No one can tell the Peterson family that there was only one victim. The = Peterson=20 family mourns for two lives that were brutally ended. There is no = question that=20 the criminal responsible should be accountable for the loss of both = lives.=20

When pregnant women suffer at the hands of violent=20 criminals I urge my colleagues to protect both victims under Federal = law.=20

Mr. ALLEN. Mr. President, I rise today in support = of the=20 Unborn Victims of Violence Act, or what many individuals refer to as = ``Laci and=20 Conner's Law.''=20

We have all heard the tragic story of Laci and = Conner=20 Peterson; Laci, 8 months pregnant with her unborn son Conner, were = viciously=20 murdered at the hands of a killer. Regrettably, Laci and Conner's story = is only=20 one of many instances where a woman is harmed and may not only lose her = life but=20 the life of her unborn child.=20

In my Commonwealth of Virginia, we had a similar = tragic=20 situation occur in April of 2002. Ronda Robinson was maliciously gunned = down in=20 her Lynchburg home, while her two daughters watched in terror. Like = Laci, Ronda=20 was in her third trimester when she and her unborn child had their lives = taken.=20

At that time, Virginia did not have a fetal = homicide law on=20 the books, and the Commonwealth was unable to bring a homicide charge = against=20 the murderer for the killing of Ronda's unborn child.=20

Unfortunately, the situation in Virginia and many = other=20 States remains the same. If a mother survives an assault, but loses her = unborn=20 child, the law currently does not recognize any loss of any human life = at all.=20

However, I am pleased that the Virginia General = Assembly=20 has taken steps to correct this wrong. This year, the Virginia General = Assembly=20 overwhelmingly passed legislation that would hold an individual = accountable who,=20 ``unlawfully, willfully, deliberately, maliciously, and with = premeditation kills=20 the fetus of another.'' Twenty-Nine senators or 72 percent of the senate = and 77=20 members of the house of delegates or 77 percent of the house supported = this=20 legislation.=20

While this legislation has not yet been signed into = law, I=20 am hopeful that Virginia will follow the lead of the 29 other States = that have=20 passed this important and meaningful legislation.=20

I have the same optimism for the Unborn Victims of = Violence=20 Act. We have a chance to hear the voice of the voiceless and bring = fairness to a=20 system that has essentially told hundreds of women and their families, = their=20 unborn child never existed.=20

I have been blessed with four great gifts, my = loving wife=20 and my three wonderful children. I have witnessed my children grow and = live=20 healthy and happy lives. I see what my children have accomplished so far = in=20 their lives and I am eager to see what other great accomplishments will = follow.=20 But many individuals are unable to witness the birth and growth of their = child=20 because of a violent criminal act.=20

Throughout my tenure in public service, whether it = was in=20 the Virginia=20

[Page: S3166]

House of Delegates, U.S. House = of=20 Representatives, Governor's office, or now in the U.S. Senate, I have = always=20 tried to be tough on criminals. I have always believed in the principle = that if=20 you commit a crime, you should be punished.=20

The Unborn Victims of Violence Act closely upholds = my=20 beliefs by making criminals accountable for their actions. Under current = Federal=20 law, an individual who commits a Federal crime of violence and kills or = injures=20 an unborn child cannot be prosecuted for those violent acts against the = unborn=20 child. The Unborn Victims of Violence Act seeks to rectify this = situation and=20 close that loophole.=20

Under this bill, if an unborn child is injured or = killed=20 during the commission of an already-defined Federal crime of violence, = then the=20 assailant could be charged with a separate offense for the second, = enhanced=20 crime upon the unborn child.=20

Opponents of the Unborn Victims of Violence Act = contend=20 that this will hamper a woman's right to choose and constitute an attack = on Roe=20 v. Wade. This is simply false. In fact, this legislation explicitly = provides=20 that it does not apply to any abortion to which a woman has consented, = to any=20 act of the mother herself, legal or illegal, or to any form of medical=20 treatment.=20

In addition, opponents have brought numerous = challenges=20 against State unborn victims laws, based on Roe and other constitutional = arguments, and all of these challenges have been rejected by State and = Federal=20 courts.=20

I have always been a strong supporter of rights of = the=20 people in the States to determine their laws so long as it does not harm = interstate commerce or our Constitution. This bill safeguards those = States'=20 laws. This legislation does not supersede State unborn victims laws, nor = does it=20 impose such a law in a State that does not have one on the books. The = Unborn=20 Victims of Violence Act merely applies to an already defined set of = Federal=20 crimes.=20

The bottom line is that criminals must be held = accountable=20 for their actions. The Unborn Victims of Violence Act ensures that = justice is=20 sought and available for the totality of the violent murderous act. This = is=20 good, solid legislation that is tough on crime, appropriately punishes=20 criminals, and meets the ends of justice desired by law-abiding = citizens.=20

I urge my colleagues to support this bill so that = we can=20 send it to President Bush for his signature and ensure that justice will = be=20 served.=20

Mr. DODD. Mr. President, I share the outrage of = every other=20 Member in this Senate over the heinous and violent crimes that are = committed=20 against over 300,000 women a year. These crimes are especially horrific = when the=20 perpetrator knows his victim and knows her to be pregnant.=20

Today, a significant number of States already = allowed=20 stricter penalties for crimes of violence committed against pregnant = women. At=20 the Federal level, I believe that it is appropriate and necessary to = conform our=20 Federal laws to the statutes of these States.=20

Particularly heinous crimes ought to receive = particularly=20 harsh penalties. And for that reason, I strongly supported the Feinstein = amendment during today's debate. Like the underlying legislation, the = Feinstein=20 amendment would have allowed Federal prosecutors to ``double-charge'' = those=20 individuals convicted of crimes against pregnant women, and would have = set forth=20 severe and just punishments for those crimes. Unfortunately, this = amendment was=20 defeated.=20

I also realize that punishing individuals for = crimes=20 against women, both pregnant and not, is only one step toward reducing = domestic=20 violence. We must do more as a society not only to punish but to prevent = domestic violence. For this reason, I strongly supported the Murray = amendment=20 today. This amendment would have protected the economic security of = women who=20 are victims of domestic violence by allowing them to keep their jobs if = and when=20 they needed to take time off to attend court and receive medical care = related to=20 an act of domestic violence committed against them. It would have also=20 authorized important new initiatives for the establishment of family = violence=20 research and education centers to develop, implement, disseminate, and = evaluate=20 family violence prevention and early intervention services and = strategies.=20 Again, I was disappointed when this amendment failed.=20

We have come a long way from the days when domestic = violence was considered a private matter. Major initiatives like the = Violence=20 Against Women Act have offered protection for women while treating = domestic=20 violence for what it is--crimes committed by cowards. However, as the = continued=20 prevalence of domestic violence cases show, we have a long way to go.=20

Regrettably, the underlying bill that was before us = today=20 is not principally focused on curbing violence and punishing those = individuals=20 found guilty of committing these heinous crimes. Rather, the legislation = was=20 focused on advocating a cause about which its proponents feel very = deeply, but a=20 cause that a majority of Americans do not share--the cause of eroding = and=20 ultimately ending women's right to choose.=20

I happen to support a woman's right to choose as = set forth=20 in the Roe vs. Wade decision. And I find it regrettable and = inappropriate that=20 legislation that ought to be focused on eroding the number of heinous = crimes=20 committed against all women focuses instead on eroding a woman's right = to=20 choose. For this reason, while I supported both the Feinstein and Murray = amendments, I am unable to support the underlying bill.=20

For those who wish to advocate a cause not related = to the=20 issue of domestic violence, I urge them to advocate it in the open and = not by=20 stealth. But for those who want to reduce further the number and = severity of=20 crimes against women to continue working with people like Senators=20 FEINSTEIN and MURRAY. Working together, I am confident we = can make=20 a substantial difference in the lives of hundreds of thousands of women = across=20 the country.=20

Mr. SMITH. Mr. President, I rise today to speak = about the=20 Unborn Victims of Violence Act and our duty to protect the most innocent = among=20 us.=20

A woman becomes a mother the moment she hears she = is with=20 child. From that time forward, her primary concern is providing for and=20 protecting the new life within. Our concerns should be no different.=20

It is horrifying that an expectant mother could be = the=20 target of violence--yet it happens. And when such a crime is committed, = there is=20 not one victim, but two. Recognizing this fact in Federal law not only = fulfills=20 our commitment to mothers and the unborn, it also serves as a deterrent = to=20 crimes against the innocent.=20

Under the laws of 29 States, if a person commits a = violent=20 crime against a pregnant woman and seriously injures or kills her unborn = child,=20 that assailant can be punished for both the violence against the mother = and the=20 unborn child. This is not the case in federal law. A perpetrator who = commits a=20 violent crime under Federal jurisdiction and kills an unborn child = cannot be=20 prosecuted for that death. This is wrong.=20

Today, I am proud to join my colleagues in voting = in favor=20 of the Unborn Victims of Violence Act. Under this legislation, an = assailant who=20 commits a Federal crime and kills or injures an unborn child can be = charged with=20 a separate offense on behalf of the child. Passage of this bill sends an = immediate message to criminals that they will be punished for violence = against=20 women and their unborn children.=20

This legislation and the ban on partial-birth = abortion=20 enacted last year further protect the sanctity of life. Like the ban on=20 partial-birth abortions, this bill is supported by the vast majority of=20 Americans who recognize it as a reasonable stop we can take to protect = women and=20 children.=20

I look forward to President Bush signing this = legislation=20 into law. It will show criminals that they can no longer act with = impunity and=20 it will tell expectant parents what they already know--that their unborn = children have value, too.=20

Mr. DeWINE. I am prepared to yield back = our time=20 on the general debate.=20

The PRESIDING OFFICER. There is still time on the=20 underlying bill.=20

The minority leader.=20

Mr. DASCHLE. We yield back on the minority side.=20

The PRESIDING OFFICER. The clerk will read the bill = for the=20 third time.=20

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The bill was ordered to a third reading and was = read the=20 third time.=20

The PRESIDING OFFICER. The majority leader.=20

Mr. FRIST. Mr. President, for the information of = our=20 colleagues, the next vote is the last vote of the week. We will begin=20 consideration of welfare reauthorization on Monday. There will be no = rollcall=20 votes on Monday. Any votes ordered will be stacked on Tuesday of next = week.=20

Mr. DOMENICI. I ask for the yeas and nays.=20

The PRESIDING OFFICER. Is there a sufficient = second?=20

There is a sufficient second.=20

The PRESIDING OFFICER. Both sides having yielded = back their=20 time and the bill having been read the third time, the question is, = Shall the=20 bill pass?=20

The clerk will call the roll.=20

The legislative clerk called the roll.=20

Mr. McCONNELL. I announce that the Senator from New = Hampshire (Mr. GREGG) is necessarily absent.=20

The PRESIDING OFFICER (Mr. COLEMAN). Are = there any=20 other Senators in the Chamber desiring to vote?=20

The result was announced--yeas 61, nays 38, as = follows:=20

[Rollcall Vote No. 63 Leg.] YEAS--61

Alexander=20

Allard=20

Allen=20

Bennett=20

Bingaman=20

Bond=20

Breaux=20

Brownback=20

Bunning=20

Burns=20

Campbell=20

Carper=20

Chambliss=20

Cochran=20

Coleman=20

Collins=20

Conrad=20

Cornyn=20

Craig=20

Crapo=20

Daschle=20

Dayton=20

DeWine=20

Dole=20

Domenici=20

Dorgan=20

Ensign=20

Enzi=20

Fitzgerald=20

Frist=20

Graham (SC)=20

Grassley=20

Hagel=20

Hatch=20

Hutchison=20

Inhofe=20

Kyl=20

Landrieu=20

Lott=20

Lugar=20

McCain=20

McConnell=20

Miller=20

Murkowski=20

Nelson (NE)=20

Nickles=20

Pryor=20

Reid (NV)=20

Roberts=20

Rockefeller=20

Santorum=20

Sessions=20

Shelby=20

Smith=20

Specter=20

Stevens=20

Sununu=20

Talent=20

Thomas=20

Voinovich=20

Warner=20

NAYS--38

Akaka=20

Baucus=20

Bayh=20

Biden=20

Boxer=20

Byrd=20

Cantwell=20

Chafee=20

Clinton=20

Corzine=20

Dodd=20

Durbin=20

Edwards=20

Feingold=20

Feinstein=20

Graham (FL)=20

Harkin=20

Hollings=20

Inouye=20

Jeffords=20

Johnson=20

Kennedy=20

Kerry=20

Kohl=20

Lautenberg=20

Leahy=20

Levin=20

Lieberman=20

Lincoln=20

Mikulski=20

Murray=20

Nelson (FL)=20

Reed (RI)=20

Sarbanes=20

Schumer=20

Snowe=20

Stabenow=20

Wyden=20

NOT VOTING--1

=20

Gregg=20

=20

The bill (H.R. 1997) was passed.=20

Mr. SPECTER. Mr. President, I support enhanced = penalties=20 for criminal acts of violence against pregnant women.=20

My concern with the DeWine bill is that it = unnecessarily=20 seeks to weigh in on the abortion controversy with the definition of = ``unborn=20 child'' and ``child in utero.''=20

I voted for the Feinstein amendment because it = accomplishes=20 the substantive criminal law objectives of the DeWine bill without = raising a=20 potential issue on a possible challenge to Roe v. Wade.=20

When the Feinstein Amendment lost, I voted for = final=20 passage of the DeWine Bill in order to impose appropriate double = sanctions for=20 the murder or assault of a pregnant woman that interferes with a = pregnancy.=20

END