Ted Kennedy Opposed Federal Regulation of Doctor-Patient Relationship—When the Issue Was Partial Birth Abortion
“I do not believe it is the role of the Senate to interfere with or regulate the kind of medical advice that a doctor can give to a patient,” Kennedy said in a March 12, 2003 Senate floor speech in opposition to the partial-birth abortion ban that was enacted that year.
President Bush signed the bill into law on Nov. 5, 2003. It was then challenged in the federal courts. On April 18, 2007, however, the Supreme Court ruled 5-4 that the partial-birth abortion ban was in fact constitutional.
In his 2003 speech against the partial-birth abortion ban, Kennedy said he was “pro-choice” and that he believed the proposed ban was not only unconstitutional but also an unwarranted interference by the Senate in the doctor-patient relationship.
“Because of the sound and fury and high emotion that surrounds this issue, I make my own personal views clear,” said Kennedy. “I am pro-choice. But I believe abortion should be rare.”
“I do not believe it is the role of the Senate to interfere with or regulate the kind of medical advice that a doctor can give to a patient,” said Kennedy. “The doctor patient relationship and the health of the mother is what is in jeopardy with this legislation.”
Kennedy said that in fighting the ban on partial-birth abortion he was defending his oath of office and the Constitution of the United States, while opposing legislation that “impermissibly attempts to interfere with the doctor-patient relationship.”
The ban, he said, was unconstitutional in part because it would prohibit the use of the partial-birth abortion procedure to terminate a pre-viable baby.
“The role of the Senate is to protect and defend the Constitution of the United States,” said Kennedy. “Each of us in this body has taken the oath of office, and the oath of office and the Constitution require me to oppose this legislation. This bill unconstitutionally seeks to restrict abortion in cases before viability. It does not provide an exception to protect the mother’s health after viability. It also impermissibly attempts to interfere with the doctor-patient relationship. For all these reasons, I oppose the bill.”
Kennedy ended his speech by praising Sen. Tom Harkin (D.-Iowa) for sponsoring an amendment to the bill that said it was the sense of the Senate that the 1973 Roe v. Wade case was correctly decided by the Supreme Court. Roe v. Wade was the decision that legalized abortion on demand nationwide.
“Finally, I commend my friend and colleague, Senator Harkin, and indicate my strong support for his amendment” said Kennedy. “This is a reaffirmation of the 1973 Supreme Court decision. It gives focus to the underlying debate and the policy issues which surround this whole issue.”
The Harkin amendment said, “The Senate finds that--(1) abortion has been a legal and constitutionally protected medical procedure throughout the United States since the Supreme Court decision in Roe v. Wade, and (2) the 1973 Supreme Court decision in Roe v. Wade established constitutionally based limits on the power of States to restrict the right of a woman to choose to terminate a pregnancy. It is the sense of the Senate that--(1) the decision of the Supreme Court in Roe v. Wade was appropriate and secures an important constitutional right; and (2) such decision should not be overturned.”
The Harkin amendment passed, 52-46, on March 12, 2003, with Kennedy voting in the affirmative.
The final Senate vote on the partial-birth abortion ban came on October 21, 2003. It passed, 64-34, with Kennedy voting in the negative.
Here is the full text of Sen. Ted Kennedy’s March 12, 2003 Senate floor speech in opposition to a ban on partial-birth abortion as it appeared in the Congressional Record:
Mr. KENNEDY: Madam President, the Republican leadership is wrong to ask the Senate to support legislation that has been ruled unconstitutional by numerous courts. Since the last debate in the Senate in 1999, the Supreme Court found a very similar law enacted by the State of Nebraska to be unconstitutional. This bill is unconstitutional as well.
The Republican leadership has chosen to make as its top priority a flatly unconstitutional piece of legislation at a time when so many families across the country are facing economic hardship, when communities are struggling to deal with homeland security needs, and being forced by State budget crises to cut back on education and health care.
Because of the Republican leadership's decision to act on this bill, we will do nothing this week to provide an economic stimulus plan for the Nation's families and workers. We will do nothing to provide new funding for communities struggling to protect themselves from new terrorist attacks. We will do nothing to help the millions of uninsured children in this country get the health care they need. We will do nothing for schools struggling to meet higher standards under the No Child Left Behind Act. We will do nothing to help college students struggling to pay tuition and relieve their debt. We will do nothing to help the millions of families across the Nation who are worried about their economic future.
Let us be clear as to what this bill does not do. This bill does not stop one single abortion. The proponents of this bill distort the law and the position of our side with inflammatory rhetoric, while advocating a bill that will not stop one single abortion. This bill purports to prohibit a medical procedure that is only used in rare and dire circumstances. It is not used for unhealthy mothers carrying unhealthy babies. If this bill is passed, a doctor could be forced to perform another, more dangerous procedure if it becomes necessary to terminate a pregnancy to protect the life, the health of the mother.
This bill does not protect the health of the mother. Nowhere is there language that will allow a doctor to take the health of the mother into consideration, even if she were to suffer brain damage or otherwise be permanently impaired if the pregnancy continued. And this bill is not needed to protect the life of the babies who could live outside the mother's womb because those babies are already protected under the law of the land.
In Roe v. Wade, the Supreme Court specifically held that unless there was a threat to the life, health of the woman, she did not have a constitutional right to terminate a pregnancy after viability.
So what is this legislation all about? It is about politics and inflammatory language and hot-button topics, but it is not about stopping abortion.
Because of the sound and fury and high emotion that surrounds this issue, I make my own personal views clear. I am pro-choice. But I believe that abortion should be rare. I believe we have an obligation to create an economy and the necessary support systems to make it easier for women to choose to bring children into the world. If the proponents of this legislation were serious about limiting the number of abortions in this country, then we would be debating access to health care, quality education, the minimum wage, and other issues of economic security that are so important to parents bringing up children. Those issues are not on the Republican leadership's agenda.
Instead, for rank political reasons we are here this week debating the so-called partial-birth abortion. I do not believe it is the role of the Senate to interfere with or regulate the kind of medical advice that a doctor can give to a patient. The doctor-patient relationship and the protection of the health of the mother is what is in jeopardy with this legislation.
From the time of the 1973 decision in Roe v. Wade through to the Stenberg-Carhart decision, the Constitution allows States to restrict postviability abortion as long as there are protections for the life and the health of the mother. Indeed, 41 States already ban postviability abortions regardless of the procedure used. My own State of Massachusetts prohibits these abortions except when the woman's life is in danger, or the continuation of the pregnancy would impose a substantial risk of grave impairment of a woman's health.
I would vote for a postviability ban that protects women's life and health today.
The role of the Senate is to protect and defend the Constitution of the United States. Each of us in this body has taken that oath of office, and that oath of office and the Constitution require me to oppose this legislation. This bill unconstitutionally seeks to restrict abortion in cases before viability. It does not provide an exception to protect the mother's health after viability. It also impermissibly attempts to interfere with the doctor-patient relationship. For all these reasons, I oppose this bill.
Finally, I commend my friend and colleague, Senator Harkin, and indicate my strong support for his amendment. This is a reaffirmation of the 1973 Supreme Court decision. It gives focus to the underlying debate and the policy issues which surround this whole issue.
As the Senator remembers so well, before Roe as many as 5,000 women died from illegal abortions each year. Many others suffered serious complications. In the years since 1973, the number of deaths resulting from abortion procedures has decreased dramatically. In order to keep abortion safe, we must keep it legal. That is why I support Senator Harkin's amendment and strongly urge my colleagues to do so as well.