[Page: S2714]---
Mr. KERREY. Mr. President, on April 25, 2000 the United States Supreme Court will hear arguments in the Carhart v. Stenberg case. As a lifelong Nebraskan, I have received several requests to take a prominent public position with regard to this case, including a request that I file an amicus brief, also known as a ``friend of the court'' brief in this case. I am honored by these requests, but remain determined not to become officially involved in this case before the Supreme Court. I have come to believe that active involvement in matters before the courts, particularly the U.S. Supreme Court, would be an ineffective use of the power of the Senate office which I hold in trust for all Nebraskans.
However, I do not want my silence and absence from these amicus briefs to be mistaken for something that it is not. Because I have had several opportunities as a Nebraska Senator to debate this issue, and because this landmark case before the Supreme Court affects Nebraskans directly, I feel compelled to explain to Nebraskans my thoughts on this important issue.
On September 24, 1999, the Eighth Circuit Court of Appeals upheld a Nebraska district court decision that a Nebraska statute banning a medical procedure commonly known as ``partial-birth abortion'' is unconstitutional. The appellate court sustained the decision on the grounds that the Nebraska law creates an undue burden on women seeking abortions.
It is my sincere belief that the Eight Circuit's decision should be sustained. In sum, the law adopted by the State of Nebraska (LB 23, June 9, 1997) is too vague to be enforced without placing an undue burden on a woman making this difficult choice. The Supreme Court should uphold the Eighth Circuit's decision because this law bans procedures commonly used for second trimester abortions and will affect any Nebraska doctor who performs either the D&E (dilation and evacuation) or D&X (dilation and extraction) procedure. This statute makes the act of performing legal medical procedures a Class III felony (up to 20 years in jail) and subjects a participating physician to the loss of his or her license.
Each year, five thousand women in Nebraska, with the help and counsel of their loved ones, their doctors and their clergy, face the very difficult decision to end a pregnancy. None of us believe that they make their decision lightly. They are guided by their moral beliefs and by the previous decisions of the Supreme Court giving elected State and Federal officials a legal foundation upon which to effectuate, and in some cases limit, the scope of their choices.
The central problem with the Nebraska law is that legislators made no attempt to abide by previous Court decisions. Called the ``Partial Birth Abortion Ban'' by its sponsors, the bill has been inaccurately characterized as ``banning certain late term abortions.'' In reality, the bill does not concern itself with late term abortions--neither curbing them nor banning them--which the Court gives lawmakers the capacity to do. Instead the bill seeks to ban a medical procedure used to end a pregnancy without reference to when that procedure is used. Moreover, it bans a medical intervention that is very difficult to define with the precision needed under law to give both doctors and those who enforce the law the guidance they need.
Given this uncertainty, the Eighth Circuit Court of Appeals found that LB 23 was unconstitutional. Writing for the majority, former Chief Judge Richard Arnold explained that it created an undue burden on women because, in many instances, it would ban the most common and safest procedure for second-trimester abortions. The Court pointed out that the term ``partial birth abortion'' has ``no fixed medical or legal content'' and that the Nebraska statute is too broad.
Most second and third-term abortions occur in situations where a woman would have preferred, indeed desperately wanted, to carry the baby full term. The doctor made a recommendation based upon a threat to the life and health of the mother if the pregnancy were to continue. A law like Nebraska's would make doctors who perform this procedure liable for prosecution, with penalties that include loss of their license to practice medicine and time in jail. The threat of these penalties could result in physicians choosing not to treat women with a history of high-risk pregnancies.
We are wrong to presume that women no longer die during child birth or abortion. Medical science has reduced but not eliminated the risk associated with either. We must not deny women their ability to freely choose to undergo an abortion, or the access to physician care necessary to ensure their safety.
Freedom of choice in reproductive decision-making is a constitutional guarantee established by this Court with limitations. Nebraska's law fundamentally ignores the limitations allowed and not allowed by the Court's previous decisions. If it is sustained, it will imperil the safety and well-being of women throughout our state. We cannot allow misinformation to obscure the broad consensus in America that women must decide for themselves how best to live their lives. Moreover, it is equally important that no one be denied the safe and appropriate medical treatment necessary to make a reproductive decision which this law would do.
It is my hope that this statement will help Nebraskans better understand my position on this very important matter.
END