Statement of Maria Cantwell (as prepared) on the Roe v. Wade Sense of the Senate Resolution and the Late Term Abortion Bill

Mr. President, I rise today to support Senator Harkin’s Sense of the Senate that Roe v. Wade, the landmark 1973 decision recognizing a woman's constitutional right to choose, was rightly decided and should not be overturned; I also want to express my opposition to the underlying legislation. Thirty years ago, the U.S. Supreme Court held that a woman has a constitutional right to privacy when making decisions concerning her personal reproductive choices. That decision, Roe v. Wade, was carefully crafted to be balanced and responsible while holding the rights of women in America paramount in reproductive decisions.

And Senator Harkin’s amendment is very simple: it asks the U.S. Senate to reaffirm that Roe v. Wade was rightly decided and should not be overturned. This amendment asks the U.S. Senate to reaffirm a woman’s right to privacy in making her own personal medical and reproductive decisions.

Roe v. Wade held that women have a constitutional right to choose, but after the point of viability, the point at which a baby can live outside its mother’s body, States may ban abortions as long as they allow exceptions when a woman’s life or health is in danger. Yet the legislation before us, which lacks an important health exception, fails to do just that: provide for a woman when her health or her life is in danger.

In June 2000, the U.S. Supreme Court reinforced the importance of a health exception with its decision in Stenberg v. Carhart, which determined that a Nebraska law banning the performance of so-called "partial birth" abortions violated the Roe holding.

The Supreme Court stated unequivocally that every abortion restriction, including bans on so-called "partial-birth abortion," must contain a health exception. The Court emphasized that by failing to provide a health exception, the Nebraska law was structured so as to place a woman’s life in danger. That’s exactly what the legislation before us today does as well: it places a woman’s life in danger.

Despite the Supreme Court’s very clear mandate, the legislation before us today does not provide an exception for the health of the mother. For this reason, this legislation, like the one struck down in Stenberg, is unconstitutional.

While I assume the author of this bill is referring to a specific procedure, the legislation is not clear on that fact. In fact the U.S. Supreme Court held in the Nebraska case that even if the statute’s basic aim is to ban one specific procedure, its language was so broad that it will also ban other medical abortion procedures.

Moreover, this legislation imposes an undue burden on a woman’s ability to choose by banning abortion procedures at any stage in a woman’s pregnancy. This bill does not ban post-viability abortions, a limitation I would support, but unconstitutionally restricts women’s rights regardless of where the woman is in her pregnancy.

This legislation does not have a clear exception for women’s health. In fact, Senator Santorum asserts that there is never a medical reason to perform a so-called "partial birth" procedure. I fundamentally believe that private medical decisions should be made by women in consultation with their doctors -- not politicians. And this includes the methods by which a physician chooses to treat his or her patients.

And I do not believe that congressional findings make up for medical consultation between a patient and her doctor. But this ban would undermine a physician’s ability to determine the best course of treatment for a patient.

Physicians must be free to make clinical determinations, in accordance with medical standards of care, that best safeguard a woman’s life and health. Women and their families, along with their doctors, are simply better than politicians at making decisions about their medical care. And I don’t want to make those decisions for other women.

Three states, including my home state of Washington, have considered these bans by referendum. All three failed. We considered this debate in my home state in 1998. The referendum failed decisively - by a vote of 57 to 43 percent.

These so-called "partial-birth" abortion bans - whether the proposals that have been before the Senate in the past or the one before us today -- are deliberately designed to erode the protections of Roe v. Wade, at the expense of women’s health and at the expense of a woman’s right to privacy.

I also want to say that I am extremely disappointed that my colleagues voted down Senator Murray’s women’s health amendment yesterday because the easiest way to reduce the number of abortions is to prevent unwanted pregnancies in the first place. One critical way to do this is through better access to contraception, both by improvements in insurance coverage of contraception, as well as by improving knowledge of, and access to, emergency contraception.

The Supreme Court, during the thirty years since it recognized the right to choose, has consistently required that, when a state restricts access to abortion, a woman’s health must be the absolute consideration. This legislation flouts the Supreme Court’s explicit directive, the advice of the medical community, and the will of the American people. We must continue to ensure that the women of America have the right to privacy and receive the best medical attention available.

I urge my colleagues to support Senator Harkin’s Sense of the Senate that Roe v. Wade, the landmark 1973 decision recognizing a woman's constitutional right to choose, was rightly decided and should not be overturned.

Thank you.