Regular Session - April 30, 1996
4033
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5 ALBANY, NEW YORK
6 April 30, 1996
7 2:00 p.m.
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10 REGULAR SESSION
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14 SENATOR JOHN R. KUHL, JR., Acting President
15 STEPHEN F. SLOAN, Secretary
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4034
1 P R O C E E D I N G S
2 ACTING PRESIDENT KUHL: The
3 Senate will come to order. Ask the members to
4 find their chairs, the staff to find their
5 places. I'd ask everybody in the chamber,
6 including those visitors in the gallery, to rise
7 and join with me in saying the Pledge of
8 Allegiance to the Flag.
9 (The assemblage repeated the
10 Pledge of Allegiance to the Flag.)
11 We're very pleased to have the
12 Reverend Peter G. Young of the Blessed Sacrament
13 -- Sacrament Church of Bolton Landing with us
14 to deliver the prayer.
15 Peter Young.
16 FATHER PETER YOUNG: Thank you,
17 Senator.
18 Let us pray. Dear God, scarcely
19 knowing what and how to ask Your guidance on in
20 regard to our efforts, we ask You to bring our
21 New York industries and labors to a fresh touch
22 of life-giving spirit. We pray for those whose
23 skill and training talents are unused, that they
4035
1 may obtain the dignity of work. Grant us what
2 is required for all in the life that You have
3 given us to and not because we ask wisely or
4 well but because of the boundless compassion
5 that You have made known to us, O God.
6 Thank you, Senator.
7 ACTING PRESIDENT KUHL: Thank
8 you, Reverend Young.
9 Reading of the Journal.
10 THE SECRETARY: In Senate,
11 Monday, April 29th. The Senate met pursuant to
12 adjournment. The Journal of Sunday, April 28th,
13 was read and approved. On motion, the Senate
14 adjourned.
15 ACTING PRESIDENT KUHL: Hearing
16 no objection, the Journal stands approved as
17 read.
18 Presentation of petitions.
19 Messages from the Assembly.
20 Messages from the Governor.
21 Reports of standing committees.
22 The Secretary will read.
23 THE SECRETARY: Senator Stafford,
4036
1 from the Committee on Finance, offers up the
2 following nominations: Member of the state
3 Council on the Arts: John L. Loeb of Purchase.
4 SENATOR STAFFORD: Thank you, Mr.
5 President.
6 I'm sorry. We'd respectfully
7 move the confirmation of these nominations,
8 please.
9 ACTING PRESIDENT KUHL: The Chair
10 recognizes Senator Goodman.
11 SENATOR GOODMAN: Mr. President,
12 with respect to the nomination of John L. Loeb,
13 Jr., I would like to say a brief word on his
14 behalf.
15 ACTING PRESIDENT KUHL: Senator
16 Goodman on the nomination.
17 SENATOR GOODMAN: Mr. President,
18 this distinguished New Yorker who is noted for
19 his own contributions to our society as well as
20 his distinguished familial lineage is being
21 presented to us as a candidate for nomination to
22 the New York State Council on the Arts.
23 John Loeb, Jr. served as
4037
1 ambassador to Denmark and is a noted art
2 collector in his own right. He is the grand
3 nephew of former Governor Herbert Lehman. He
4 comes from a family whose art collection is
5 legend and who have presented their entire arts
6 collection from the late Robert Lehman to New
7 York's Metropolitan Museum of Art, where it
8 forms its own discrete wing.
9 John L. Loeb, Jr. will be an
10 individual who can contribute enormously to the
11 work of this important council, and I very much
12 hope that this chamber will give his nomination
13 its enthusiastic support and a unanimous vote.
14 ACTING PRESIDENT KUHL: Is there
15 any other Senator wishing to speak on the
16 nomination?
17 (There was no response.)
18 Hearing none, the question is on
19 the nomination of John L. Loeb of Purchase, New
20 York to be a member of The state Council on the
21 Arts. All those in favor signify by saying
22 aye.
23 (Response of "Aye".)
4038
1 Opposed, nay.
2 (There was no response.)
3 The nominee is confirmed.
4 The Secretary will continue to
5 read.
6 THE SECRETARY: Members of the
7 Empire State Plaza Art Commission: Arline
8 Peartree of Averill Park; J. Stanley Yake of
9 Rexford.
10 ACTING PRESIDENT KUHL: The
11 question is on the nomination of the nominees to
12 become members of the Empire State Plaza Art
13 Commission. All those in favor signify by
14 saying aye.
15 (Response of "Aye".)
16 Opposed, nay.
17 (There was no response.)
18 The nominees are confirmed.
19 The Secretary will continue to
20 read.
21 THE SECRETARY: Member of the
22 Advisory Council on Agriculture: Charles E.
23 Wille of Montgomery.
4039
1 ACTING PRESIDENT KUHL: The
2 question is on the nomination of Charles E.
3 Wille to become a member of the Advisory Council
4 on Agriculture. All those in favor signify by
5 saying aye.
6 (Response of "Aye".)
7 Opposed, nay.
8 (There was no response.)
9 The nominee is confirmed.
10 The Secretary will read.
11 THE SECRETARY: Member of the
12 Niagara Frontier Transportation Authority: Luiz
13 F. Kahl of Williamsville.
14 ACTING PRESIDENT KUHL: The
15 question is on the nomination of Luiz Kahl to
16 become a member of the Niagara Frontier
17 Transportation Authority. All those in favor
18 signify by saying aye.
19 (Response of "Aye".)
20 Opposed, nay.
21 (There was no response.)
22 The nominee is confirmed.
23 The Secretary will read.
4040
1 THE SECRETARY: Members of the
2 Board of Visitors of the New York State Home for
3 Veterans and Their Dependents at Batavia: D.
4 James Mastelenis of Batavia, Julia A. Ryan of
5 Medina, Roy J. Wullich of Batavia.
6 ACTING PRESIDENT KUHL: The
7 question is on the nomination of the nominees to
8 become members of the Board of Visitors of the
9 New York State Home for Veterans and Their
10 Dependents at Batavia. All those in favor
11 signify by saying aye.
12 (Response of "Aye".)
13 Opposed, nay.
14 (There was no response.)
15 The nominees are confirmed.
16 The Secretary will continue to
17 read.
18 THE SECRETARY: Member of the
19 Board of Visitors of the New York State Home for
20 Veterans and Their Dependents at Oxford: Alex
21 Park of Trumansburg.
22 ACTING PRESIDENT KUHL: The
23 question is on the nomination of Alex Park to
4041
1 become a member of the Board of Visitors of the
2 New York State Home for Veterans and Their
3 Dependents at Oxford. All those in favor
4 signify by saying aye.
5 (Response of "Aye".)
6 Opposed, nay.
7 (There was no response.)
8 The nominee is confirmed.
9 The Secretary will read.
10 THE SECRETARY: Members of the
11 Board of Visitors of the New York State Home for
12 Veterans and Their Dependents at St. Albans:
13 Elizabeth A. Carr of Kew Gardens, Harvie Moder
14 of Queens Village, Alvin R. Rosado of College
15 Point, Marjorie Smith of South Ozone Park.
16 ACTING PRESIDENT KUHL: The
17 question is on the nomination of the nominees to
18 become members of the Board of Visitors of the
19 New York State Home for Veterans and Their
20 Dependents at St. Albans. All those in favor
21 signify by saying aye.
22 (Response of "Aye".)
23 Opposed, nay.
4042
1 (There was no response.)
2 The nominees are confirmed.
3 Reports of select committees.
4 Communications and reports from
5 state officers.
6 Motions and resolutions.
7 The Chair recognizes Senator
8 Present.
9 SENATOR PRESENT: Mr. President,
10 on behalf of Senator Libous, on page 49, I offer
11 the following amendments to calendar 757, Senate
12 Print 6945, and ask that it retain its place on
13 the Third Reading Calendar.
14 ACTING PRESIDENT KUHL: The
15 amendments are received and adopted. The bill
16 will retain its place on the Third Reading
17 Calendar.
18 Senator Bruno.
19 SENATOR BRUNO: Mr. President,
20 can we now move the Resolution Calendar with the
21 exception of Resolution 3161.
22 ACTING PRESIDENT KUHL: The
23 motion is to accept the Resolution Calendar with
4043
1 the exception of Resolution 3161. All those
2 in -
3 SENATOR GOLD: Hold on one
4 second, please.
5 Mr. President.
6 ACTING PRESIDENT KUHL: Senator
7 Gold, why do you rise?
8 SENATOR GOLD: Yeah. I'd like to
9 have the Resolution Calendar in its entirety
10 laid aside temporarily while I find out exactly
11 how this got to the floor and perhaps discuss it
12 with Senator Stafford and some others. I was at
13 a committee meeting this morning in Finance, and
14 I asked specifically about a Resolution
15 Calendar, and I was told there was none. I was
16 at the meeting, I think from beginning to end,
17 and I'm not saying I have any problem with any
18 particular resolution on here, but I certainly
19 would like to know how it got here and what the
20 processes were.
21 We have on the Finance Minority
22 side an individual who goes through these and
23 checks them out for members of the Minority just
4044
1 to make sure there's no particular problems and
2 there probably are no problems with this
3 calendar, but I would like to put it aside until
4 we have a chance to look at it, and I would like
5 to know how it got to the floor and what
6 committee supposedly reported it out.
7 ACTING PRESIDENT KUHL: Senator
8 Bruno, Senator Gold has asked that the
9 Resolution Calendar be temporarily laid aside
10 until some procedural questions can be answered
11 for him. What's your desire on that, sir?
12 SENATOR BRUNO: Mr. President and
13 Senator Gold, can't we discuss this as we are
14 progressing forward with the calendar rather
15 than lay it aside?
16 SENATOR GOLD: Well, Mr.
17 President -
18 SENATOR BRUNO: You mean you have
19 comments and questions on -- that you'd like to
20 direct to myself or to a member in the house?
21 SENATOR GOLD: Yeah. Well,
22 Senator -
23 SENATOR BRUNO: And can we do
4045
1 that appropriately now, Senator?
2 SENATOR GOLD: I would be glad
3 to. Mr. President -
4 ACTING PRESIDENT KUHL: Senator
5 Bruno, I thought -- if the Chair might just
6 intercede here. I thought Senator Gold's
7 request was to set this aside temporarily, take
8 up the non-controversial calendar, and he can
9 arrange to have a discussion with you and
10 Senator Stafford and then come back to it.
11 SENATOR BRUNO: That's fine, Mr.
12 President.
13 ACTING PRESIDENT KUHL: All
14 right. Then, Senator Bruno -- Senator Goodman,
15 would you like to offer up a privileged
16 resolution which is at the desk at this time.
17 SENATOR GOODMAN: Yes, Mr.
18 President, if I may.
19 ACTING PRESIDENT KUHL: I'll ask
20 the Secretary to read the title.
21 SENATOR GOODMAN: Thank you, Mr.
22 President.
23 THE SECRETARY: By Senator
4046
1 Goodman, Legislative Resolution honoring the
2 memory of Robert Russell.
3 ACTING PRESIDENT KUHL: The Chair
4 recognizes Senator Goodman.
5 Excuse me just a minute, Senator
6 Goodman. It's awful noisy in here. Ladies and
7 gentlemen, we have a lot of work to do today, a
8 lot of work to do today.
9 Senator Dollinger, would you take
10 your seat, please. May we have quiet in the
11 chamber so we can hear the members.
12 SENATOR GOODMAN: Mr. President.
13 ACTING PRESIDENT KUHL: Senator
14 Goodman.
15 SENATOR GOODMAN: I appreciate
16 the opportunity to speak on a resolution
17 honoring the memory of Mr. Robert Russell who,
18 as many of you will recall, was an intimate
19 member of the Senate family.
20 Bob Russell was a long-time staff
21 member of this body, and in -- his most recent
22 work was heavily involved in the Committee on
23 Arts and Cultural Affairs and in that capacity
4047
1 made a legion of friends who have been in touch
2 with our office since the day of his untimely
3 death from cancer.
4 Bob Russell's quality and his
5 experience have been amply set forth in the
6 resolution which will be fully adopted by this
7 body, but I would like to say that obviously the
8 Senate can never reach its full capacity to
9 function effectively on behalf of the people
10 without the dedicated work of its senior staff
11 members, and in Bob Russell, we had a member who
12 did his work with loving diligence and with
13 great attention to all of those with whom he
14 came in contact.
15 It was Bob Russell who made it a
16 point to be in touch with virtually every major
17 cultural institution in the state, and it was
18 Bob Russell who put their minds at ease during
19 the attenuated process of grant certification
20 and processing, which as we all know at times
21 can be a very lengthy one indeed.
22 Bob Russell won us many friends.
23 Bob Russell advanced the cause of culture in the
4048
1 state of New York and is known by all as a
2 friend of the arts.
3 I've just had the privilege of
4 attending a ceremony in which the Egg has now
5 been named after our beloved chairman of the
6 state Council on the Arts, Kitty Carlyle Hart,
7 who has just retired, and it's of interest to
8 note that during that process, the name of Bob
9 Russell came up more than once among many of the
10 people who were there to honor Kitty Hart and
11 also derivatively Bob Russell.
12 Mr. President, we're fortunate to
13 have had him in our midst. We have reason to
14 share great pride in his accomplishments on our
15 behalf and on that of the people, and I believe
16 this resolution will be one that will be long
17 remembered by all of us who knew and loved him.
18 Thank you very much indeed.
19 ACTING PRESIDENT KUHL: Is there
20 any other Senator wishing to speak on the
21 resolution?
22 Senator DeFrancisco.
23 SENATOR DeFRANCISCO: Yes. I
4049
1 would be remiss if I didn't rise to speak on
2 behalf of this resolution and to provide the
3 body with my remembrances of Bob Russell. Our
4 offices -- my office and Senator Goodman's
5 office are on the same floor, and a day did not
6 go by when Bob Russell didn't come in to give me
7 and the staff a greeting, a warm smile, an offer
8 of assistance in any area that we might be
9 interested in receiving his help from, and this
10 was even during the time when he was extremely
11 ill, and despite that illness which led to his
12 untimely death, he never, ever complained. He
13 continued to come to the office, smile and try
14 to make everyone feel good about what they were
15 doing for this Senate family.
16 Bob was a special person. I'll
17 always remember him, and I know that our prayers
18 -- his family are in our prayers and will
19 continue to be.
20 ACTING PRESIDENT KUHL: Senator
21 Larkin on the resolution.
22 SENATOR LARKIN: Mr. President, I
23 had the privilege of knowing Bob Russell and his
4050
1 family for over 20 years.
2 Bob Russell was the type of an
3 individual that looked to see what he could do
4 to help somebody else before he ever cared about
5 himself. When you start to look at what he did
6 in his local community, his benefits to
7 community service, he was always there, whether
8 it was a Monday or a Sunday. Bob Russell
9 carried on a tradition of his own family and his
10 children with him.
11 Bob Russell came back and forth
12 here to Albany on many days when any other
13 person here would have stayed home and said
14 "It's over." He carried on because he cared.
15 Bob Russell was an individual, if
16 you met him just once, you'd never forget him
17 because you'd come away with the feeling of
18 there's an individual that cares about every
19 human being.
20 Bob Russell, may his soul rest in
21 peace.
22 ACTING PRESIDENT KUHL: Is there
23 any other Senator wishing to speak on the
4051
1 resolution?
2 (There was no response.)
3 Hearing none, the question is on
4 the resolution. All those in favor signify by
5 saying aye.
6 (Response of "Aye".)
7 Opposed, nay.
8 (There was no response.)
9 The resolution is unanimously
10 adopted.
11 Senator Goodman, why do you rise?
12 SENATOR GOODMAN: It should be
13 opened up for co-sponsorship from any member of
14 the house.
15 ACTING PRESIDENT KUHL: Are there
16 other members that would like to be on the
17 resolution for co-sponsorship?
18 (There was a show of hands.)
19 Seeing everybody raise their
20 hands, Senator Bruno, would it be permissible to
21 put everybody on the resolution except those
22 people who do not wish to be on the resolution?
23 SENATOR BRUNO: No objection.
4052
1 ACTING PRESIDENT KUHL: If there
2 is anybody, indicate to the desk. That would be
3 the procedure.
4 Senator Bruno, that brings us to
5 the calendar, unless you have the issue resolved
6 relative to the Resolution Calendar.
7 SENATOR BRUNO: Mr. President -
8 Mr. President, can we at this time call for an
9 immediate meeting of the Crime and Corrections
10 Committee in Room 332.
11 ACTING PRESIDENT KUHL: There
12 will be an immediate meeting of the Crime and
13 Corrections Committee in the Majority Conference
14 Room, Room 332. Immediate meeting of the Crime
15 and Corrections Committee, Majority Conference
16 Room, Room 332.
17 Senator Gold, why do you rise?
18 SENATOR GOLD: Yeah, Mr.
19 President. I've had an opportunity to talk to
20 Senator Stafford and to examine the Resolution
21 Calendar, and I understand there was a technical
22 glitch. No harm done. I'm assured by Senator
23 Stafford we can try to avoid this in the future,
4053
1 and there certainly is no objection to the items
2 on the calendar. So we could take those up if
3 you so please.
4 ACTING PRESIDENT KUHL: Senator
5 Bruno, is it your motion to move the Resolution
6 Calendar at this time?
7 SENATOR BRUNO: Yes, Mr.
8 President, with the exception of Resolution 3161
9 and 3210.
10 ACTING PRESIDENT KUHL: The
11 motion is to adopt the Resolution -- Resolution
12 Calendar with the exception of Resolutions
13 Number 3161 and 3210. All those in favor
14 signify by saying aye.
15 (Response of "Aye".)
16 Opposed, nay.
17 (There was no response.)
18 The Resolution Calendar is
19 adopted.
20 Senator Bruno, that brings us to
21 the calendar.
22 SENATOR BRUNO: Mr. President,
23 can we at this time take up Resolution Number
4054
1 3161 by Senator Owen Johnson.
2 ACTING PRESIDENT KUHL: I'll ask
3 the Secretary to read the title to calendar -
4 to Resolution Number 3161.
5 THE SECRETARY: By Senator
6 Johnson, Legislative Resolution commemorating
7 May 2nd, 1996 as a "Day of Prayer" in New York
8 State.
9 ACTING PRESIDENT KUHL: Senator
10 Johnson, on the resolution.
11 SENATOR JOHNSON: Mr. President,
12 as you heard, it's the "Day of Prayer" in New
13 York State. It's a national event in many
14 states. Even the President has presided, as the
15 Governor did, at a National Day of Prayer
16 meeting today.
17 I'd like to open this up -- we've
18 done it many years. I'd like to open this up to
19 all the members of the Senate for co
20 sponsorship.
21 ACTING PRESIDENT KUHL: Senator
22 Johnson is opening up the resolution on the
23 floor to the members. Are there members who
4055
1 would like to be on the resolution?
2 (There was a show of hands.)
3 Seeing a lot of hands, Senator
4 Johnson, do you have any objection to putting
5 all the members on with the exception of those
6 who do not wish to be on, if they would so
7 indicate to the desk?
8 (Senator Johnson nods head.)
9 All the members will be
10 included. The question is on the resolution.
11 All those in favor signify by saying aye.
12 (Response of "Aye".)
13 Opposed, nay.
14 (There was no response.)
15 The resolution is adopted.
16 Senator Bruno.
17 SENATOR BRUNO: Mr. President,
18 can we at this time take up Resolution Number 31
19 -- 3210 by Senator Stachowski.
20 ACTING PRESIDENT KUHL: I'll ask
21 the Secretary to read the title to Resolution
22 Number 3210.
23 THE SECRETARY: By Senator
4056
1 Stachowski, Legislative Resolution commemorating
2 April 29th, 1996 as "Workers Memorial Day" in
3 the state of New York in remembrance of those
4 who have imperiled their health and safety or
5 sacrificed their lives in the performance of
6 their work.
7 SENATOR STACHOWSKI: Mr.
8 President, this resolution -
9 ACTING PRESIDENT KUHL: Senator
10 Stachowski.
11 SENATOR STACHOWSKI: -- is to
12 show that not only do we honor but we remember
13 all those working men and women that do their
14 dedication or their hard work. They have given
15 their lives for the cause of working men and
16 women, and that we want to make sure that this
17 state is always remembered as "Workers Memorial
18 Day", and that I think it's a resolution that we
19 should adopt, and it's very important to the
20 working men and women as a sign that we
21 recognize this contribution to society, and I
22 would like to open this resolution up to all the
23 members in the body.
4057
1 ACTING PRESIDENT KUHL: Senator
2 Stachowski has opened up the sponsorship of the
3 resolution. Are there members who would like to
4 be on the resolution with Senator Stachowski?
5 (There was a show of hands.)
6 Seeing most of the members, if
7 they would -- we'll put all the members on the
8 resolution, Senator Stachowski, except for those
9 who wish not to be.
10 The question is on the adoption
11 of Resolution 3210. All those in favor signify
12 by saying aye.
13 (Response of "Aye".)
14 Opposed, nay.
15 (There was no response.)
16 The resolution is adopted.
17 Senator Bruno.
18 SENATOR BRUNO: Mr. President,
19 can we at this time take up the non
20 controversial calendar.
21 ACTING PRESIDENT KUHL: The
22 Secretary will read the non-controversial
23 calendar.
4058
1 THE SECRETARY: On page 14,
2 Calendar Number 386, by Senator Lack -
3 SENATOR BRUNO: Lay it aside at
4 the request of the sponsor for the day.
5 ACTING PRESIDENT KUHL: Lay the
6 bill aside at the request of the sponsor for the
7 day.
8 THE SECRETARY: Calendar Number
9 603, by Member of the Assembly Greene, Assembly
10 8466, an act to amend the Banking Law, in
11 relation to eliminating certain restrictions
12 upon junior mortgage loans.
13 ACTING PRESIDENT KUHL: The
14 Secretary will read the last section.
15 THE SECRETARY: Section 2. This
16 act shall take effect 90 days.
17 ACTING PRESIDENT KUHL: Call the
18 roll.
19 (The Secretary called the roll.)
20 THE SECRETARY: Ayes 55.
21 ACTING PRESIDENT KUHL: The bill
22 is passed.
23 THE SECRETARY: Calendar Number
4059
1 604, by Senator Farley, Senate Print 6220, an
2 act to amend the Banking Law, in relation to the
3 liquidation of investment companies.
4 ACTING PRESIDENT KUHL: The
5 Secretary will read the last section.
6 THE SECRETARY: Section 2. This
7 act shall take effect 90 days.
8 ACTING PRESIDENT KUHL: Call the
9 roll.
10 (The Secretary called the roll.)
11 THE SECRETARY: Ayes 55.
12 ACTING PRESIDENT KUHL: The bill
13 is passed.
14 THE SECRETARY: Calendar Number
15 619, by Senator Marcellino, Senate Print 4425,
16 an act to amend the Penal Law, in relation to
17 criminally negligent homicide.
18 ACTING PRESIDENT KUHL: The
19 Secretary will read the last section.
20 THE SECRETARY: Section 2. This
21 act shall take effect on the first day of
22 January.
23 ACTING PRESIDENT KUHL: Call the
4060
1 roll.
2 (The Secretary called the roll.)
3 THE SECRETARY: Ayes 55.
4 ACTING PRESIDENT KUHL: The bill
5 is passed.
6 THE SECRETARY: Calendar Number
7 622, by Senator Saland, Senate Print 6023, an
8 act to amend the Civil Practice Law and Rules,
9 in relation to orders of protection and
10 temporary orders of protection.
11 ACTING PRESIDENT KUHL: The
12 Secretary will read the last section.
13 THE SECRETARY: Section 2. This
14 act shall take effect immediately.
15 ACTING PRESIDENT KUHL: Call the
16 roll.
17 (The Secretary called the roll.)
18 THE SECRETARY: Ayes 55.
19 ACTING PRESIDENT KUHL: The bill
20 is passed.
21 THE SECRETARY: Calendar Number
22 630, by Senator Skelos, Senate Print 6539, an
23 act to amend the Vehicle and Traffic Law, in
4061
1 relation to the sale of vehicles by the United
2 States government at auction.
3 ACTING PRESIDENT KUHL: The
4 Secretary will read the last section.
5 THE SECRETARY: Section 2. This
6 act shall take effect immediately.
7 ACTING PRESIDENT KUHL: Call the
8 roll.
9 (The Secretary called the roll.)
10 THE SECRETARY: Ayes 55.
11 ACTING PRESIDENT KUHL: The bill
12 is passed.
13 THE SECRETARY: Calendar Number
14 632, by Senator Levy, Senate Print 6593, an act
15 to amend the Railroad Law, in relation to
16 sanitary conditions.
17 ACTING PRESIDENT KUHL: The
18 Secretary will read the last section.
19 THE SECRETARY: Section 2. This
20 act shall take effect immediately.
21 ACTING PRESIDENT KUHL: Call the
22 roll.
23 (The Secretary called the roll.)
4062
1 THE SECRETARY: Ayes 56.
2 ACTING PRESIDENT KUHL: The bill
3 is passed.
4 THE SECRETARY: Calendar Number
5 634, by Senator Rath, Senate Print 6622-A -
6 SENATOR WALDON: Lay it aside.
7 THE SECRETARY: -- an act to
8 amend the Vehicle and Traffic Law, in relation
9 to mandatory -
10 SENATOR GOLD: Lay it aside at
11 the request of Senator Waldon.
12 THE SECRETARY: -- of licenses.
13 ACTING PRESIDENT KUHL: Lay the
14 bill aside.
15 THE SECRETARY: Calendar Number
16 635, by Senator DiCarlo, Senate Print 6643-A, an
17 act to amend the Vehicle and Traffic Law -
18 SENATOR WALDON: Lay it aside.
19 THE SECRETARY: -- and the Penal
20 Law, in relation to the sentence for leaving the
21 scene of an incident.
22 ACTING PRESIDENT KUHL: Lay the
23 bill aside.
4063
1 THE SECRETARY: Calendar Number
2 693, by Senator Volker -
3 SENATOR GOLD: Lay it aside.
4 THE SECRETARY: -- Senate Print
5 4799-A, an act to amend the Penal Law, in
6 relation to including certain obscenity crimes
7 in definition of criminal act.
8 ACTING PRESIDENT KUHL: Lay the
9 bill aside.
10 THE SECRETARY: Calendar Number
11 695, by Senator Leibell, Senate Print 5910, an
12 act to amend the Civil Practice Law and Rules,
13 in relation to registrations to do business with
14 the county of Putnam.
15 ACTING PRESIDENT KUHL: The
16 Secretary will read the last section.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT KUHL: Call the
20 roll.
21 (The Secretary called the roll.)
22 THE SECRETARY: Ayes 56.
23 ACTING PRESIDENT KUHL: The bill
4064
1 is passed.
2 THE SECRETARY: Calendar Number
3 788, by Senator Maltese, Senate Bill 6901-B, an
4 act to amend the Penal Law, in relation to the
5 crime of partial birth abortions.
6 SENATOR CONNOR: Lay it aside.
7 ACTING PRESIDENT KUHL: Lay the
8 bill aside.
9 Senator Bruno, that completes the
10 non-controversial calendar.
11 SENATOR BRUNO: Mr. President,
12 can we at this time take up the controversial
13 calendar.
14 ACTING PRESIDENT KUHL: The
15 Secretary will read the controversial calendar
16 beginning with Calendar Number 634.
17 THE SECRETARY: On page 26,
18 Calendar Number 634, by Senator Rath.
19 SENATOR BRUNO: Lay it aside at
20 the request of the sponsor.
21 ACTING PRESIDENT KUHL: Lay the
22 bill aside.
23 THE SECRETARY: Calendar Number
4065
1 635, by Senator DiCarlo, Senate Print 6643-A, an
2 act to amend the Vehicle and Traffic Law and the
3 Penal Law, in relation to the sentence for
4 leaving the scene of an incident.
5 SENATOR WALDON: Explanation,
6 please.
7 ACTING PRESIDENT KUHL: Senator
8 DiCarlo, an explanation of Calendar Number 635
9 has been asked for by Senator Waldon.
10 SENATOR DiCARLO: Yes, Mr.
11 President. The purpose of my legislation is to
12 require a mandatory minimum period of
13 imprisonment of two years for a motorist who,
14 having been involved in an accident resulting in
15 death or serious injury, leaves the scene
16 without stopping or reporting the accident,
17 although he or she had cause to know that a
18 serious injury or death was likely.
19 ACTING PRESIDENT KUHL: Senator
20 Waldon.
21 SENATOR WALDON: Would the
22 gentleman yield to a question or two?
23 ACTING PRESIDENT KUHL: Senator
4066
1 DiCarlo, do you yield to a question from Senator
2 Waldon?
3 SENATOR DiCARLO: Yes, I will.
4 ACTING PRESIDENT KUHL: The
5 Senator yields.
6 SENATOR WALDON: Senator DiCarlo,
7 in putting together this proposal, did you take
8 into consideration that for the few moments
9 post-accident, many people who have been
10 involved in an accident are so traumatized by
11 what happened that they are in a dysfunctional
12 state?
13 SENATOR DiCARLO: Well, I'm not
14 going to say what's on somebody's mind, but the
15 purpose clearly is if the person should have
16 known -- should have known that serious injury
17 or death had occurred, they should report it.
18 So I don't know if that answers your question
19 about the state of mind.
20 SENATOR WALDON: May I continue,
21 Mr. President?
22 ACTING PRESIDENT KUHL: Senator
23 DiCarlo, you're through with your answer?
4067
1 SENATOR DiCARLO: Yes.
2 ACTING PRESIDENT KUHL: Senator
3 Waldon, the floor is yours.
4 SENATOR WALDON: Senator, I'm not
5 being frivolous in the questions. I'm just
6 concerned about a real situation I know of that
7 happened which almost parallels what you're
8 proposing, where a young school teacher, a high
9 school teacher, mother of two children, a pillar
10 of our society who was involved in a very
11 serious accident, and for the few moments post
12 the accident in a complete state of panic, if
13 you will, ran away from the scene of the
14 accident. Later on she gained control, meaning
15 she regained her self-composure and then took
16 all of the necessary steps. My concern is, is
17 there a cutoff point where someone who may, from
18 the impact and the trauma of the accident, panic
19 and run, do they have a chance to cure that
20 panic and that immediate trauma?
21 SENATOR DiCARLO: Is that a
22 question?
23 Senator, if that's another
4068
1 question, I'll try and answer it. There are
2 provisions within my legislation where it would
3 not be a mandatory two years imprisonment if
4 found guilty. If a person had no record -
5 prior record in this area, then the judge could
6 take into consideration somebody with a clean
7 record in this area and not impose the mandatory
8 two.
9 SENATOR WALDON: Okay.
10 Thank you very much, Mr.
11 President. Thank you very much, Senator
12 DiCarlo.
13 ACTING PRESIDENT KUHL: Is there
14 any other Senator wishing to speak on the bill?
15 Senator Lachman.
16 SENATOR LACHMAN: I have a
17 question for Senator DiCarlo.
18 ACTING PRESIDENT KUHL: Senator
19 DiCarlo, do you yield to Senator Lachman? The
20 Senator yields.
21 SENATOR LACHMAN: Senator
22 DiCarlo, what if there were three or four
23 vehicles involved in the accident, and the
4069
1 driver and occupants of the third and fourth
2 vehicle weren't directly involved in this
3 accident except as innocent bystanders?
4 SENATOR DiCARLO: To answer your
5 question, in the bill, the person who left would
6 have had to have cause to know that death or
7 serious injury had occurred. So the person who
8 was just caught up in a five-, ten- or fifteen
9 car accident who then left, I don't believe they
10 would have known or would have had cause to know
11 that a serious accident, injury or death had
12 occurred. So I think in your case, I don't
13 think there would be a prosecution under the
14 statute.
15 SENATOR LACHMAN: There would not
16 be a prosecution?
17 SENATOR DiCARLO: I don't believe
18 there would because there had to have been the
19 knowledge of it.
20 SENATOR LACHMAN: Thank you.
21 SENATOR DiCARLO: You're welcome.
22 ACTING PRESIDENT KUHL: Any other
23 Senator wishing to speak on the bill?
4070
1 (There was no response.)
2 Hearing none, the Secretary will
3 read the last section.
4 THE SECRETARY: Section 6. This
5 act shall take effect on the first day of
6 November.
7 ACTING PRESIDENT KUHL: Call the
8 roll.
9 (The Secretary called the roll.)
10 THE SECRETARY: Ayes 57.
11 ACTING PRESIDENT KUHL: The bill
12 is passed.
13 The Secretary will continue to
14 call the controversial calendar.
15 THE SECRETARY: Calendar Number
16 693, by Senator Volker, Senate Print 4799-A, an
17 act to amend the Penal Law, in relation to
18 including certain obscenity crimes in definition
19 of criminal act.
20 SENATOR WALDON: Explanation.
21 ACTING PRESIDENT KUHL: Senator
22 Volker, an explanation of the bill has been
23 asked for by Senator Waldon.
4071
1 SENATOR VOLKER: Mr. President,
2 this is a bill that has passed this house on
3 several occasions before that would include
4 pornography or certain obscenity crimes in the
5 definition of the Organized Crime Control Act.
6 Some of us believe that during
7 the passing of the Organized Crime Control Act
8 that one of the areas that should have been
9 included is the area of pornography or
10 obscenity, and what this bill simply does is to
11 add the obscenity area into the Organized Crime
12 Control Act.
13 ACTING PRESIDENT KUHL: Senator
14 Waldon.
15 SENATOR WALDON: Thank you very
16 much, Mr. President.
17 Senator Volker -
18 ACTING PRESIDENT KUHL: Senator
19 Volker, do you continue to yield?
20 SENATOR VOLKER: Why, certainly.
21 ACTING PRESIDENT KUHL: The
22 Senator continues to yield.
23 SENATOR WALDON: Thank you very
4072
1 much, Mr. President. Senator Volker, I thank
2 you.
3 Senator, I'm concerned. Why are
4 we putting this under the penumbral zone of
5 OCCA? I mean, we have lots of obscenity
6 statutes, and we deal with this so carefully and
7 so clearly in other ways. Why are we laying
8 this, if you will, at the doorstep of organized
9 crime?
10 SENATOR VOLKER: Senator, the
11 reason for it is that it is pretty obvious -- it
12 became very obvious to us in this when we first
13 introduced this statute, the bill certain years
14 ago. There were a number of instances where
15 prosecutors had determined that organized crime
16 was involved in the pornography area, and it
17 seems -- you asked the question of, there are a
18 lot of other crimes and why should we add this
19 one? I think the answer is why shouldn't it be
20 there? If organized crime is participating in
21 the spreading of pornography, then I think that
22 this crime ought to be included because, as you
23 know, it provides certain additional crimes and
4073
1 flexibilities, and I think it's something that
2 should be done.
3 ACTING PRESIDENT KUHL: Senator
4 Waldon.
5 SENATOR WALDON: One last
6 question, if I may, Mr. President.
7 ACTING PRESIDENT KUHL: Senator
8 Volker, do you continue to yield?
9 SENATOR VOLKER: Certainly.
10 ACTING PRESIDENT KUHL: The
11 Senator continues to yield.
12 SENATOR WALDON: Senator, this -
13 in your opinion, does this in any way mitigate
14 the applicability of our statutes on the books
15 now in regard to obscenity and, if no, then is
16 there no duplication involved here in regard to
17 OCCA matters?
18 SENATOR VOLKER: I don't think
19 there's any duplication as such. I just think
20 that it gives the -- the ability when dealing
21 with organized crime to deal with another piece
22 of what organized crime has been involved with.
23 I know, Senator Waldon, you're
4074
1 well aware as I am that there is a -- a major
2 organized crime problem in this state. I think
3 you could argue in some ways it's not as great
4 as it was some years ago, but it's still a major
5 problem, and it just seems as if that -- as we
6 are dealing with the issue of organized crime,
7 that we should deal with it in the most unified
8 matter possible, and adding obscenity to the
9 list of those crimes as part of that effort just
10 seems logical to me.
11 SENATOR WALDON: Last question,
12 if I may, Mr. President.
13 ACTING PRESIDENT KUHL: Senator
14 Volker, do you continue to yield? The Senator
15 continues to yield.
16 SENATOR WALDON: Thank you, Mr.
17 President.
18 Senator Volker, last question. I
19 apologize. I thought the last one was the last
20 one. Is there a companion bill in the Assembly
21 and, if not, have you worked on conforming what
22 the Assembly is doing so that it will parallel
23 what you're proposing to us for consideration -
4075
1 to us for consideration?
2 SENATOR VOLKER: Senator, there
3 is a companion bill in the Assembly, and it's a
4 Rules bill, I believe by Assemblyman Robach, and
5 I think he sponsored this bill for several
6 years, and we are trying to deal with the
7 Assembly on this issue, and this and a number of
8 issues, we would hope that this year will be
9 resolved before the end of this year.
10 SENATOR WALDON: Thank you very
11 much, Mr. President. Thank you, Senator Volker.
12 ACTING PRESIDENT KUHL: Any other
13 Senator wishing to speak on the bill?
14 (There was no response.)
15 Hearing none, the Secretary will
16 read the last section.
17 THE SECRETARY: Section 2. This
18 act shall take effect on the first day of
19 November.
20 ACTING PRESIDENT KUHL: Call the
21 roll.
22 (The Secretary called the roll.)
23 THE SECRETARY: Ayes 58.
4076
1 ACTING PRESIDENT KUHL: The bill
2 is passed.
3 The Secretary will continue to
4 read the controversial calendar.
5 THE SECRETARY: Calendar Number
6 788, by Senator Maltese -
7 ACTING PRESIDENT KUHL: Senator
8 Montgomery.
9 SENATOR MONTGOMERY: I'm voting
10 no on that bill, 693.
11 ACTING PRESIDENT KUHL: You wish
12 to be recorded in the negative on Calendar
13 Number 695 -- excuse me -- 693?
14 SENATOR MONTGOMERY: Yes.
15 ACTING PRESIDENT KUHL: Okay.
16 Without objection.
17 (There was no response.)
18 Hearing no objection, Senator
19 Montgomery will be recorded in the negative on
20 Calendar Number 693.
21 Senator Smith, you wish to be
22 recorded in the negative on Calendar Number 693
23 also?
4077
1 (Senator Smith nods head.)
2 Senator Waldon?
3 (Senator Waldon nods head.)
4 Without objection.
5 (There was no response.)
6 Hearing no objection, Senator
7 Smith and Senator Waldon will be recorded in the
8 negative and Senator Gold in the negative on
9 Calendar Number 693.
10 Is there any other Senator
11 wishing to be recorded in the negative on
12 Calendar Number 693?
13 (There was no response.)
14 Announce the results.
15 THE SECRETARY: Ayes 54, nays 4.
16 ACTING PRESIDENT KUHL: The bill
17 is passed.
18 The Secretary will continue to
19 call the controversial calendar.
20 THE SECRETARY: Calendar Number
21 788, by Senator Maltese, Senate Print 6901-B, an
22 act to amend the Penal Law, in relation to the
23 crime of partial birth abortion.
4078
1 SENATOR CONNOR: Explanation.
2 ACTING PRESIDENT KUHL: Senator
3 Maltese, an explanation of Calendar Number 788
4 has been asked for by the Minority Leader,
5 Senator Connor.
6 SENATOR MALTESE: Mr. President,
7 we have before us a bill that is somewhat unique
8 in that it establishes the crime of partial
9 birth abortion, and it is a bill that has been
10 termed by people on opposite sides of the issue
11 as either pro-life or anti-choice or
12 anti-abortion.
13 It is unique in that it is an
14 abortion bill that is not in reality an abortion
15 bill but a bill that seeks to prevent something
16 very akin to homicide. The bill itself is a -
17 is substantially similar or almost identical to
18 the Congressional bill that -- H. R. 1833 which
19 was passed overwhelmingly by both the Congress
20 and the United States Senate with both Democrat
21 and Republican support.
22 The bill would ban abortions that
23 are performed by a physician who delivers a
4079
1 living fetus into the vagina and then and only
2 then kills the fetus.
3 The bill specifically defines a
4 partial birth abortion as an abortion in which
5 the person performing the abortion partially
6 vaginally delivers a living fetus before killing
7 the fetus and completing the delivery.
8 Physicians who violate this law would be subject
9 to criminal penalties, but no penalty could be
10 applied to the woman who obtained such an
11 abortion.
12 This specific procedure, partial
13 birth abortion, is often used for second
14 trimester abortions from 20 to 24 weeks, four
15 and a half to five and a half months. It is -
16 it can be used in the third trimester, and in
17 some cases is performed up until the ninth
18 month.
19 The procedure itself, I'll get to
20 in a moment, but what I'd like to mention is
21 that this procedure has been considered by
22 physicians across the state but also across the
23 country, and by and large, very few physicians
4080
1 have supported the procedure or performed the
2 procedure.
3 The American Medical Association
4 -- the National Council on Legislation of the
5 American Medical Association, consisting of 12
6 members specifically chosen for this reason,
7 voted unanimously to recommend the AMA
8 endorsement of the original Congressional bill.
9 The council is made up of 12
10 physicians of different specialties who are
11 charged with studying proposed federal
12 legislation with respect to its impact on the
13 practice of medicine.
14 A member of the council has
15 publicly stated that this was not a recognized
16 medical technique and that the procedure is
17 basically repulsive. However, meeting in
18 October, the AMA Board of Trustees divided on
19 their recommendation -- and that's the board of
20 trustees which is composed of approximately 25
21 -- and they voted to take no position. So we
22 had a situation where their council was
23 unanimously for the legislation and the parent
4081
1 executive body voted to take no position.
2 Now, as far as its similarities
3 or why we have before us a "B" print, the bill
4 was originally modeled after the Congressional
5 version of the partial birth abortion bill
6 sponsored by Bob Canaday of Florida, and that
7 bill contained two sections, one section of
8 which related to imposing civil liability on the
9 physician. Our version did not have that civil
10 liability on the physician. The second portion
11 required that the physician come forward and use
12 as an affirmative defense that he had performed
13 the procedure in order to protect -- in order to
14 save the life of the mother.
15 We, on the "B" version -- and
16 that was the reason for this delay 'til today -
17 we did what I, as a former prosecutor and deputy
18 chief of the homicide bureau, consider an
19 improvement on the bill, we did here in New York
20 in the state Senate, what was done to the
21 Congressional bill by the Senate under the
22 sponsorship of Senator Brown and Senator Dole,
23 and they removed that requirement for the doctor
4082
1 to come forward with the -- with the affirmative
2 defense.
3 Thus, the bill is very simple,
4 very spartan in its terms. It simply indicates
5 "the provisions of this section shall not apply
6 to a partial birth abortion performed by a duly
7 licensed physician that is necessary to save the
8 life of a mother whose life is endangered by a
9 physical disorder, illness or injury where no
10 other medical procedure would suffice for that
11 purpose."
12 I'd like to now read -- we had a
13 press advisory yesterday, Mr. President, where
14 we had with us -- and I believe she may be in
15 the balcony at this time -- a nurse, Brenda
16 Pratt Shafer, and Nurse Shafer speaks from a
17 unique perspective. She had the occasion to be
18 present during the performance of a partial
19 birth abortion by a physician -- or an alleged
20 physician who has made it his specialty to
21 perform these -- this particular procedure, and
22 I'll let Brenda Shafer's words speak for herself
23 as to this procedure.
4083
1 "In September '93, Brenda Pratt
2 Shafer, a registered nurse with 13 years of
3 experience was assigned by her nursing agency to
4 an abortion clinic. Since Nurse Shafer
5 considered herself very pro-choice, she didn't
6 think the assignment would be a problem. She
7 was wrong." This is what Nurse Shafer saw and
8 said. "I stood at the doctor's side and watched
9 him perform a partial birth abortion on a woman
10 who was six months pregnant. The baby's heart
11 beat was clearly visible on the ultrasound
12 screen. The doctor delivered the baby's body
13 and arms, everything but his little head. The
14 baby's body was moving. His little fingers were
15 clasping together. He was kicking his feet.
16 The doctor took a pair of scissors and inserted
17 them into the back of the baby's head, and the
18 baby's arms jerked out in a flinch, a startled
19 reaction like a baby does when he thinks that he
20 might fall. Then the doctor opened the scissors
21 up. Then he stuck the high-powered suction tube
22 into the hole and sucked the baby's brains out.
23 Now the baby was completely limp. I never went
4084
1 back to the clinic, but I am still haunted by
2 the face of that little boy. It was the most
3 perfect, angelic face I have ever seen."
4 Now, opponents of my legislation
5 may say, well -- make all types of allusions to
6 Nurse Shafer, who I want to say right here and
7 now is a very brave, courageous woman to come
8 forward and testify as she did before Congress
9 and to come here to New York too, so that we
10 could have the benefit of her thoughts, but the
11 opponents of the bill might very well say, Well,
12 that was Brenda Shafer. She's changed her
13 mind. Who knows what pressures she was under
14 and what have you.
15 Well, that infamous physician,
16 Dr. Martin Haskell, who pioneered this system,
17 had occasion to present a paper to a fall risk
18 management seminar in September of 1992 in
19 Dallas, Texas and the topic of the seminar
20 sponsored by the National Abortion Federation
21 was Second Trimester Abortion from Every Angle,
22 and we have in the table of contents second
23 trimester D & X, 20 weeks and beyond.
4085
1 I do want to indicate that at
2 this point, the -- what we are now going to
3 label in the Penal Law as partial birth abortion
4 is termed by most physicians D & X. There are
5 two procedures which D & E, which is the most
6 commonly used, dilation and evacuation, and this
7 D & X procedure which is dilation and extraction
8 -- extraction, if you will, of the -- the still
9 -- the fetus, and this is Dr. Haskell's paper
10 presented at the National Abortion Federation.
11 It's not a very lengthy paper, but I'll leave
12 out portions which are very medical about the
13 specific medicinal treatments and what have
14 you.
15 The surgical method in this paper
16 differs from classic D & E in that it does not
17 rely upon dismemberment to remove the fetus nor
18 are inductions or infusions used to expel the
19 intact fetus. Rather, the surgeon grasps and
20 removes a nearly intact fetus through an
21 adequately dilated cervix. The author has
22 coined the term "dilation and extraction", so he
23 lays claim to the terminology, or "D & X" to
4086
1 distinguish it from dismemberment type D & Es.
2 This procedure can be performed
3 in a properly equipped physician's office under
4 local anesthesia. It can be used successfully
5 in patients 20 to 26 weeks in pregnancy. The -
6 he refers at this point to a doctor who has -
7 or a physician who has gone to meet his maker in
8 October, Dr. James T. McMahon, who wrote a
9 letter to Dr. Haskell, and in his letter he
10 states, "Coupled with other refinements and a
11 slower operating time, I performed these
12 procedures up to 32 weeks or more." The author
13 in his paper, Dr. Haskell now, states, "The
14 author has performed over 700 of these
15 procedures with a low rate of complications.
16 The author -- patient selection. The author
17 routinely performs this procedure on all
18 patients" -- that's elective, as well as
19 emergency of any type -- "20 to 24 weeks LMP,
20 last menstrual period, with certain exceptions.
21 The author performs the procedure on selected
22 patients 25 through 26 weeks LMP. Dilation and
23 extraction takes place over three days. In a
4087
1 nutshell, D & X can be described as follows:"
2 and then he lists "Day 1, dilation." The
3 procedure -- and if we put it in context with
4 those who would say that the procedure can be
5 engaged in to save the life of the mother in an
6 emergency situation, we have to put in context
7 the fact that in every single description of
8 this procedure, including this one where Dr.
9 Haskell is spelling it out for the edification
10 of fellow physicians, requires three days. "Day
11 1, dilation. Day 2, more dilation and after day
12 2" -- now, this is an out-patient procedure -
13 "the patient returns home or to a motel
14 overnight. Day 3, the operation."
15 Now, lest you think that Nurse
16 Shafer exaggerated, this is the doctor
17 describing the procedure for his fellow surgeons
18 in this recommendation. "The surgical assistant
19 places an ultrasound probe on the patient's
20 abdomen and scans the fetus locating the lower
21 extremities. This scan provides the surgeon
22 information about the orientation of the fetus
23 and approximate location of the lower
4088
1 extremities. The transducer is then held in
2 position over the lower extremities.
3 "The surgeon introduces a large
4 grasping forcep, such as a Bierer or Hern,
5 through the vaginal and cervical canals into the
6 corpus of the uterus. Based upon his knowledge
7 of fetal orientation, he moves the tip of the
8 instrument carefully towards the fetal lower
9 extremities. When the instrument appears on the
10 sonogram screen, the surgeon is able to open and
11 close to firmly and reliably grasp a lower
12 extremity." Lower extremity, of course in
13 medical terms, one of the baby's legs. "When
14 the instrument appears on the sonogram screen,
15 the surgeon is able to open and close the jaws.
16 The surgeon then applies firm traction to the
17 instrument, causing a version of the fetus (if
18 necessary) and pulls the extremity into the
19 vagina.
20 "By observing through the
21 sonogram the movement of the lower extremity" -
22 so the legs are moving at the time -- "and
23 version on the fetus on the ultrasound screen,
4089
1 the surgeon is assured that his instrument has
2 not inappropriately grasped a maternal
3 structure.
4 "With a lower extremity in the
5 vagina, the surgeon uses his fingers to deliver
6 the opposite lower extremity, then the torso,
7 the shoulders and the upper extremities. The
8 skull lodges at the internal cervical os.
9 Usually there is not enough dilation for it to
10 pass through" -- usually, he says. I'll refer
11 to that later. "The fetus is oriented dorsum or
12 spine up", so with legs down.
13 "At this point, the right-handed
14 surgeon slides the fingers of the left hand
15 along the back of the fetus and 'hooks' the
16 shoulders of the fetus with his index and ring
17 fingers (palm down). Next he slides the tip of
18 the middle finger along the spine towards the
19 skull while applying traction to the shoulders
20 and lower extremities. The middle finger lifts
21 and pushes the anterior cervical lip out of the
22 way.
23 "While maintaining this tension,
4090
1 lifting the cervix and applying traction to the
2 shoulders with the fingers of the left hand, the
3 surgeon takes a pair of blunt curved Metzenbaum
4 scissors in the right hand. He carefully
5 advances the tip curved down along the spine and
6 under his middle finger until he feels it
7 contact the base of the skull under the tip of
8 his middle finger.
9 "Reassessing proper placement of
10 the closed scissor tip and safe elevation of the
11 cervix, the surgeon then forces the scissors
12 into the base of the skull or into the foramen
13 magnum. Having safely entered the skull, he
14 spreads the scissor to enlarge the opening.
15 "The surgeon removes the
16 scissors and introduces a suction catheter into
17 this hole and evacuates the skull contents.
18 With this catheter still in place, he applies
19 traction to the fetus, removing it completely
20 from the patient." That's in Dr. Haskell's own
21 terminology, his own description.
22 Now, in the course -
23 ACTING PRESIDENT KUHL: Senator
4091
1 Maltese, excuse the interruption.
2 Senator Dollinger, why do you
3 rise?
4 SENATOR DOLLINGER: Will Senator
5 Maltese yield to a question?
6 SENATOR MALTESE: No. I'll yield
7 at the proper time, and I'll give Senator
8 Dollinger all the time he will -
9 SENATOR DOLLINGER: Mr.
10 President, even if it deals with the supposed
11 testimony of Nurse Shafer?
12 ACTING PRESIDENT KUHL: Senator
13 Dollinger, Senator Maltese has the floor and he
14 has refused to yield at this time.
15 Senator Maltese, the floor is
16 yours.
17 SENATOR MALTESE: Mr. President,
18 as in any emotional issue, there have been
19 figures tossed around by people on both sides.
20 I have here a statement from the state of New
21 York Department of Health, dated April 22nd,
22 1996, and the table refers to abortions in New
23 York State alone for 1993, the last year that
4092
1 figures were available, and the tables from the
2 New York State Department of Health indicate
3 that in New York State, there were 157,891
4 abortions performed. Out of that 157,000,
5 approximately -- well, approximately -
6 according to this exactly, 3,217 were post-20
7 weeks.
8 The report further goes on to
9 indicate -- by the way, out of that 157,000 in
10 New York State, lamentably 110,000 were from New
11 York City.
12 The report then goes on to
13 describe the amounts for the individual -- the
14 four procedures, dilitation and curettage, they
15 have 8,915; suction curettage, 139,438; dilation
16 an evacuation, 21,358 and of that figure -
17 saline injection was somewhat less, but of that
18 figure, 20-plus, they have the figure at 2,398
19 20 weeks or more.
20 Now, one of the problems is that
21 there is no reliable number available for the
22 amount of abortions that this bill would seek to
23 prevent. The numbers that have been, in some
4093
1 cases, tossed around, are somewhere from 400 to
2 800.
3 I simply wish to point out that
4 with that amount of abortions and the amount of
5 abortions performed in New York City and New
6 York State -- that figure, by the way, to New
7 York State is approximately ten percent of the
8 entire million and a half abortions that are
9 performed nationwide on an annual basis. The
10 fact that Dr. Haskell proudly boasts that he has
11 used a partial birth abortion procedure over 700
12 times and -- I have a letter here from a Dr.
13 William K. Rashbaum who was -- who has offices
14 at 208 East 72nd Street in Manhattan. It is a
15 letter that was directed to the honorable
16 Charles Kennedy, the sponsor of this
17 legislation, opposing the legislation, and he
18 speaks of -- that he wishes them to reconsider
19 the bill, but then he states, "My colleagues and
20 I have completed over 19,000 abortions -
21 procedures -- I'm sorry -- since we began." I
22 have to go back and read the prior sentence. "I
23 started performing and teaching dilation and
4094
1 evacuation techniques in 1978. My colleagues
2 and I have completed over 19,000 procedures
3 since we began. We have done the D & X." -
4 that's the dilation and extraction method -
5 "that is under consideration in the bill
6 routinely since 1979."
7 So, again, I submit that with
8 that amount of abortions, the amount that Dr.
9 Haskell had indicated he has performed -- and
10 this is strictly with reference to the D & X,
11 the dilation and extraction -- that the number
12 would have to be in excess of the 400 per year
13 figure performed nationwide, and we still had no
14 indication of an exact number. I submit, of
15 course, as the sponsor of this procedure that
16 one in New York State is too much.
17 The -- there have been statements
18 made, I know, and as in every issue, whether you
19 find doctors on either side of an issue,
20 physicians take positions that are for or
21 against or what have you. The -- as I mentioned
22 earlier, the council that had been empowered by
23 the medical association found the procedure,
4095
1 while they didn't use that terminology,
2 repulsive or repugnant, but I'd like to -- and
3 just recently, the Pope, Pope John Paul II, and
4 cardinals and bishops took a position on this
5 issue that is both a medical, legal and
6 certainly a moral issue. They don't need my
7 approval one way or another or my approbation,
8 but I certainly feel that if there's any issue
9 that the clergy is entitled -- in fact,
10 obligated to speak out on, it is the issue of
11 abortion per se and certainly this specific
12 procedure.
13 Now, with reference to this
14 specific procedure, Pope John Paul II, when he
15 referred to President Clinton's veto of
16 substantially the same bill, simply -- and I'll
17 read only one line, "called the veto a shameful
18 veto that in practice is equivalent to an
19 incredibly brutal act of aggression against
20 inhuman --" I'm sorry -- "against innocent human
21 life and against the inalienable human rights of
22 the unborn. The veto legalizing the inhuman
23 procedure endangers morally and ethically the
4096
1 future of the society that allows it."
2 Now, some may say that, Well, the
3 Pope is in the Vatican, and so on, somewhat
4 removed, although apparently he seems closer to
5 the issue than many of our legislators, whether
6 they be in Washington or in New York. I have a
7 letter April 16th which was written to President
8 Clinton by eight cardinals from the United
9 States of America, including our own Cardinal
10 John O'Connor. I won't read it. It echoes the
11 Pope's -- although three pages long, it has
12 many, many valid arguments.
13 I would like to read, since I am
14 from Queens County and represent the people in
15 Queens, the brief statement by Bishop Daly, the
16 bishop of the Diocese of Brooklyn and Queens.
17 "The President's lamentable decision to veto
18 legislation that would have terminated partial
19 birth abortions goes contrary to sentiments of a
20 vast majority of Americans. It calls for a
21 response that will radically diminish its
22 effect. At issue is an act performed by a
23 physician that is inhumane and unsupportable for
4097
1 any reason. 'Barbaric' is a strong word, but
2 how else does one characterize a surgical
3 procedure so gruesome that one winces on hearing
4 it described? This explains why a recent poll
5 identified 71 percent of Americans as opposed to
6 it. 70 percent of the House -- of the members
7 of the House and 54 percent of the Senate voted
8 to ban the procedure. A measure introduced in
9 the state Legislature would ban the procedure in
10 New York. We urge the faithful to contact their
11 respective legislators among the 15 Senators and
12 36 Assemblypersons representing constituents in
13 Brooklyn and Queens and urge them to support the
14 legislation. The attacks on the sanctity of
15 life, a gift given to us by Almighty God, have
16 become unrelenting. We must continue to be
17 persistent in supporting life and returning to a
18 culture of life. Let us invoke God's help as we
19 work to preserve life from conception to natural
20 death.".
21 Now -- and, by the way, this is
22 not a Catholic issue. We have had statements
23 made by many prominent Protestant and Jewish -
4098
1 THE PRESIDENT: Senator Mendez,
2 why do you rise?
3 SENATOR MENDEZ: I was wondering
4 if Senator Maltese would yield for a question, a
5 short one.
6 THE PRESIDENT: Senator Maltese,
7 do you yield for a question?
8 SENATOR MALTESE: I have great
9 respect for Senator Mendez, but I would prefer
10 to make my statement and then yield.
11 SENATOR MENDEZ: Okay. Thank
12 you.
13 SENATOR MALTESE: Thank you.
14 THE PRESIDENT: Senator Maltese,
15 you have the floor.
16 SENATOR MALTESE: There have been
17 many points made on this legislation, and one of
18 the arguments made in opposing the legislation
19 is that speaking on behalf of the mother and
20 speaking -- presuming to speak on behalf of the
21 fetus or the unborn child, and the arguments
22 have been made that the fetus, during this
23 procedure, does not feel pain, and the -- the
4099
1 Planned Parenthood Association has circulated a
2 so-called FAX sheet "When Does the Fetus Die",
3 and that FAX sheet indicated that the fetus dies
4 of an overdose of anesthesia given to the
5 mother. These claims were contradicted, not by
6 some pro-lifer, but by Dr. Haskell himself in
7 July 1993. When asked by the American Medical
8 Association's newsletter whether or not the
9 fetus is dead before it enters his patient's
10 birth canal, the doctor responded without
11 hesitation, "No, it's not. No, it's really
12 not", he said. "A percentage are. Probably
13 about one-third of those are definitely dead
14 before I actually start to remove the fetus and
15 probably the other two-thirds are not.".
16 A clinical paper Haskell
17 submitted in 1992 exactly tracks Nurse Shafer's
18 account of his methods, and it goes on and
19 speaks of -- speaks of the methods.
20 In addition, the -- Dr. James
21 McMahon who I referred to earlier and who passed
22 away in October of this past year, the other
23 foremost practitioner of this art, indicated in
4100
1 a defense of his procedure, "The fetus feels no
2 pain", he wrote in a letter to the House
3 Judiciary Committee. "This is because the
4 mother is given narcotic analgesia that passes
5 directly into the fetal blood stream. The
6 result, a medical coma is induced in the fetus.
7 This is neurological fetal demise. There is
8 never a live birth."
9 Plainly, in addition to a lot of
10 other things, the doctor is a liar. "Against
11 this suggestion" -- or was -- "against this
12 suggestion and with great heat, though little
13 press coverage, the nation's anesthesiologists
14 have rebelled. Dr. Norig Ellison, president of
15 the American Society of Anesthesiologists,
16 called the McMahon letter entirely inaccurate in
17 House testimony last month. 'In my medical
18 judgment, it would be necessary in order to
19 achieve neurological demise of the fetus in a
20 partial birth abortion to anesthetize the mother
21 to such a degree as to place her own health in
22 serious jeopardy.'
23 Dr. David Birnbach,
4101
1 president-elect of the Society of Obstetrics,
2 Anesthesia and Perinatology concurred. "If Dr.
3 McMahon was using massive lethal doses of
4 anesthesia during partial birth abortions, he
5 was also definitely placing the mother's life at
6 great risk, and this is absolutely not an
7 acceptable medical practice ", in quotes. "Dr.
8 Ellison said it was a gross misconception that a
9 human fetus feels no pain during partial birth
10 abortions."
11 The last statement that I think
12 is relevant is that "another witness at last
13 month's hearing, the director of pediatric care
14 at Atlanta's Emery University put it, "this
15 procedure, if it was done on an animal in my
16 institution, would not make it through the
17 institutional review process."
18 By the way, both the prior
19 physicians -- anesthesiologists were both
20 labeled as pro-choice. In addition, we hear
21 that, Oh, this is to protect the life of the
22 mother. Despite the statement -- the bare-faced
23 statement by Dr. Haskell that 80 percent are
4102
1 elective, in addition to that, we have -- Dr.
2 Haskell has written that, as I mentioned before,
3 he routinely performs such abortions with
4 limited exceptions and then stated in July of
5 '93, "Most of my abortions are in the 20- to
6 24-week range. In my particular case, probably
7 20 percent are for genetic reasons and the other
8 80 percent are purely elective." Before he
9 died, Dr. McMahon reported that a plurality of
10 what he called non-elective partial birth
11 abortions for reasons of maternal health
12 involved a mother's depression. His most common
13 non-elective fetal indication was Down's
14 syndrome. He sometimes performed the operation
15 because the baby had a cleft palate, and by the
16 way, earlier today at a press conference,
17 Assemblyman Tedisco spoke about his own personal
18 family experience where, in his family, a
19 brother was a victim of Down's syndrome and that
20 he -- he was a valuable addition to the family
21 and performed according to God's expectation of
22 what a life should be.
23 So then we have safety. "Is
4103
1 partial birth abortion ever the safest,
2 necessary procedure in a late-term abortion?"
3 Dr. Warren Hearn, author of Abortion Practice,
4 the Standard American Abortion Textbook and a
5 specialist in abortion -- in late abortions
6 says, "No. I have very serious reservations
7 about this procedure." He told the American
8 Medical News in November. "You really can't
9 defend it. I'm not going to do it and I
10 wouldn't -- I would dispute any statement that
11 this is the safest procedure to use." Quite the
12 contrary. Dr. Hearn, believes it to be
13 potentially dangerous.
14 Now -- and then we have an
15 additional statement by a Professor Robert
16 White, Director of the Division of Neurosurgery
17 and Brain Research Laboratory at Case Western
18 Reserve School of Medicine, saying, "Without
19 question, all of this is a dreadfully painful
20 experience for any infant subjected to such a
21 surgical procedure."
22 While I speak about Down's
23 syndrome and we hear what are admittedly very
4104
1 pitiful, painful stories of women who come
2 forward and testify to some of the abortions
3 that they have undergone, I believe in many of
4 those cases, if the abortionists were not so
5 eager to perform the abortion, there would
6 perhaps be a different result.
7 This morning, members of my staff
8 spoke to Dr. Stephanie Rifkinson, a pediatric
9 neurosurgeon at St. Agnes Hospital in White
10 Plains, and she spoke of hydrocephalus, and that
11 is the abnormal accumulation of water in the
12 brain that we heard -- or some of us heard or
13 read during the Congressional testimony was one
14 of the rationales put forth to undergo this
15 procedure. She made this statement:
16 "Hydrocephalus is curable in a majority of
17 cases. They end up living normal lives with a
18 95 percent or better IQ." As far as an
19 encephalitic baby, that's where -- one where the
20 brain protrudes. There -- if the baby lives
21 through the initial procedure, there is a good
22 prognosis and it can survive. In her opinion,
23 there is no risk to the mother to carry the
4105
1 fetus. Risk is in the delivery because the
2 mother would have to deliver cesarean.
3 She also indicates that in her
4 experience, personal experience, hydrocephalus
5 is curable by inserting a shunt to bypass the
6 blockage, and again, in her opinion, many
7 abortion decisions made are made without
8 consulting a neurosurgeon to determine if her
9 abnormality is curable and the fetus or baby can
10 lead a normal life.
11 And just on the medical testimony
12 with reference to the feeling of the fetus.
13 There's no question. It's not even, I think,
14 controverted in any way. At 14 weeks, the heart
15 pumps several quarts of blood through the body
16 of the fetus every day. A 12-week, unborn baby
17 in the opinion -- and I have a list of
18 physicians, Landrum B. Schettles, M.D., Ph.D.,
19 Daniel N. Robinson, Ph.D., Hearing on Fetal
20 Pain, Arthur C. Guiden, M.D., Textbook on
21 Medical Physiology, and they say a 12-week-old,
22 unborn baby, not 20 weeks, 12 weeks, 8 weeks
23 before has developed the body parts required to
4106
1 experience pain, including all the nerves,
2 spinal cord and thalamus.
3 Now, what do we have before us
4 today? We have a very critical decision. This
5 is not just an ordinary bill. It simply is
6 not. I realize and many of us here realize that
7 there are arguments on both sides of the issue.
8 The House of Representatives and the Senate who
9 were confronted with the very same question, and
10 the House of Representatives by more than a two
11 to one margin passed the bill. The bill won
12 support from more than a few lawmakers who
13 generally favor abortion. It won support from
14 73 Democrats and 215 Republicans, 37 percent of
15 voting Democrats, 93 percent of Republicans.
16 Nearly one-third of the women in the House, 15
17 of 47, including Representative Susan Molinari
18 of Staten Island who has labeled herself
19 pro-choice, Democratic Leader Richard Gephardt,
20 Democratic Whip David Bonier, Representative
21 John Dingell, Ranking Democrat -- who is Ranking
22 Democrat on the Commerce Committee -
23 Representative Lee Hamilton, Democrat,
4107
1 Representative Dave Obey and Congressman Patrick
2 Kennedy, the son of Edward Kennedy.
3 Now, this came up in the Rules
4 Committee, and we had an opportunity to speak
5 about it and, quite honestly, we did not have
6 the opportunity to go through the absolute
7 masses of material that we had at that time and
8 that was submitted to us subsequently. Material
9 has come, not only from New York, but other
10 states in the Union, probably -- or primarily
11 because of the bill being before the Washington,
12 D.C. Congress. The fact that President Clinton
13 vetoed the bill means that the Senate which
14 passed the bill only by 54 to 44 will not be
15 able to override, although the House could
16 probably do so.
17 The issue is before us now.
18 There may be arguments made, Well, one of the
19 prime sponsors in the lower house, the Assembly
20 is -- is Assemblyman Manning and he's a
21 Republican and politics dictates that it's going
22 nowhere. At the same time, another prime
23 co-sponsor is Joe Robach, and he is a Democrat.
4108
1 There are -- I have been advised that other
2 Democrats are getting on the bill, despite
3 considerable pressure not to do so.
4 This is, and absolutely as
5 described by Bishop Daly and others, a gruesome
6 procedure. It is an abhorrent procedure, a
7 barbaric procedure as described by our Majority
8 Leader. It's not something that should be
9 permitted in civilized society. Make no mistake
10 about it. When you sift through Nurse Shafer's
11 testimony and sift through Dr. Haskell's
12 clinical descriptions, what you come up with is
13 a baby that is, in some cases viable, and viable
14 now has gone down to about 22 weeks, so there's
15 no question that in many cases it's viable, that
16 -- and viable is capable of sustaining life
17 outside the womb at the time of birth -- that
18 this is brought down through the birth canal,
19 totally extruded from the vaginal canal, except
20 for the head, and I was assured yesterday by -
21 by, I think it was Dr. San Filippo, various
22 doctors have spoken to us about this, and they
23 are to be commended for coming forward, that in
4109
1 some cases, the pressure of the abortionist is
2 the only thing that keeps the head in the birth
3 canal so that the scissors can be stuck right
4 through into the back of the head.
5 So we have a situation that I,
6 quite frankly, think is akin or very close to a
7 homicide, not something that should be -- at any
8 event should be practiced in civilized society,
9 not something that we here in New York should
10 permit or condone by your vote today, perhaps
11 because of politics or what have you -- and
12 hopefully the Assembly would see it differently
13 -- perhaps it may not become law, but we can
14 take a stand right here and now to do something
15 that condemns this barbaric procedure so that no
16 reputable physician will ever perform it in the
17 future.
18 ACTING PRESIDENT KUHL: Senator
19 Bruno.
20 SENATOR DOLLINGER: Point of
21 order.
22 SENATOR CONNOR: I believe I have
23 the floor, and I asked Senator Maltese -
4110
1 THE PRESIDENT: I have a list.
2 SENATOR CONNOR: Excuse me, Madam
3 President. I asked Senator Maltese for an
4 explanation. That means I have the floor and he
5 yielded -- yielded for his explanation. He
6 yielded to give an explanation as the sponsor.
7 I believe that's the parliamentary procedure.
8 THE PRESIDENT: Senator, I have
9 the list of speakers, and Senator Bruno is next
10 on the list.
11 SENATOR CONNOR: Madam
12 President. Lists? I already have the floor is
13 my point, Madam President. I suggest you
14 consult the parliamentarian.
15 I am perfectly happy to yield to
16 Senator Bruno, but I had the floor and asked
17 Senator Maltese for an explanation.
18 THE PRESIDENT: I believe Senator
19 Bruno has the floor.
20 SENATOR CONNOR: Point of order,
21 Madam President. I have the floor. I'm happy
22 to yield to Senator Bruno, but I suggest we
23 follow parliamentary procedure, not lists.
4111
1 THE PRESIDENT: Senator Bruno.
2 SENATOR BRUNO: Madam President.
3 Senator Connor. Thank you very much.
4 Thank you for the courtesy, Madam
5 President. And I believe, Senator Connor,
6 procedurally, you are correct, and we want to
7 follow the correct procedures in this chamber,
8 certainly.
9 I ask your indulgence here
10 because I have to leave not because I'm not
11 interested in what is here but we have a meeting
12 with the Governor and some others that was
13 supposed to be at 3:00, and it was delayed, and
14 we're going to leave here and do some of the
15 other things that we have to get done today.
16 But I wanted to speak to this
17 issue, Madam President, and Senator Maltese said
18 all of the things that should be said and could
19 be said on this issue. I want to make a point,
20 in that, while I am pro life and have been in my
21 career in public office, this issue is on the
22 floor of the Senate not as a pro life issue, not
23 as an anti-choice issue, but as an issue of what
4112
1 is right and what is wrong. What is right and
2 what is wrong? And I respect people who
3 advocate the pro choice position. I respect
4 what they have to say. I don't agree with what
5 their thoughts are on the issue, but I respect
6 their right of choice.
7 But this is an issue that goes
8 beyond the question of pro choice or pro life.
9 This is an issue of decency, of humanity, and
10 Senator Maltese said it right. One death in a
11 partial birth is one too many -- one death; and
12 when you hear the procedure of a partial birth
13 abortion, there is no justification -- no
14 justification that can be accepted by people who
15 would recognize what is right and what is
16 wrong.
17 We learn, as young people, as
18 children, right from wrong. It is wrong to have
19 a baby delivered -- and being delivered and
20 being removed from the birth canal, it is wrong
21 to then kill that baby. That is not pro
22 choice. That is wrong. That is taking a human
23 life, and we can say what we want to say on the
4113
1 issue. We can make it pro choice, but I would
2 ask you -- while I respect the judgments that
3 each person in this chamber will make
4 individually as they vote, I will respect that,
5 but I will ask you to just examine your thoughts
6 as you review the procedure that takes place.
7 When in this state it's legal to
8 have an abortion -- it's legal, and within the
9 first five, six months, people have abortions,
10 by the thousands, and that's legal, and any
11 excuse that leads a person in the seventh month,
12 eighth month to have a partial birth abortion is
13 wrong, and we can't in this chamber by any vote
14 make it right. It's wrong. It's taking a human
15 life.
16 That baby -- and I was listening
17 to a pro choice proponent describe the procedure
18 of a partial birth abortion, and the person
19 said, "when the baby was being delivered" -
20 "when the baby was being delivered," "when the
21 child was being delivered." You will read that
22 on partial birth abortion, "when the child,"
23 "when the baby" is being delivered.
4114
1 What happens as the baby is being
2 delivered. If the baby's head were to exit the
3 passage, in this state and in this country to
4 then kill that baby would be murder, plain,
5 simple murder. The fact that the baby's head
6 remains in the channel allows that baby to be
7 killed in the name of an abortion? That's
8 wrong. It's wrong. That child is living. That
9 child is moving.
10 All of the tests that are given,
11 fetal blood tests, ultrasound -- all of the
12 tests that are given in the second month of
13 pregnancy, third month, fifth month, can help
14 women make judgments on what is happening within
15 their bodies. They can make those judgments in
16 the third month, in the fourth month. There is
17 no excuse that anyone can make for allowing a
18 baby to be killed in this state or in this
19 country. None, and it's not pro choice. It's
20 not pro choice. It is considered murder.
21 You think about several inches of
22 that baby's head and the placement of it, and
23 that's the judgment we will make in this
4115
1 chamber. If that baby is in the channel with
2 its head -- or out of the channel, and if the
3 baby's head is out of the channel, that baby is
4 born. That baby is born, and then it would be a
5 crime in this state to kill that baby.
6 So we're talking about a
7 procedure that is considered barbaric,
8 inhumane. That's what we're talking about in
9 this chamber. Again, I respect the attitude
10 that's reflected by people who are pro choice.
11 That's a choice that we make, each of us, as we
12 vote, but I'm asking my colleagues to make a
13 judgment on this issue.
14 In Washington, this was
15 bipartisan when it was voted on. Some of the
16 most liberal people in the Washington, Democrats
17 as well as Republicans, voted to make this
18 partial birth abortion illegal in the United
19 States, and it should be illegal in the United
20 States.
21 It's not a partisan issue. It's
22 not pro choice. It's not pro life. It's what
23 is wrong; and when we in our society question
4116
1 young people who get in trouble at early ages,
2 we talk about a permissive society. We talk
3 about people not being able to make judgments,
4 young people. You wonder why? You wonder why
5 when we can deliver a baby and based on where
6 its head is placed at the time commit an act
7 that takes the life of that child, and wonder
8 why when young people read about it, hear about
9 it, see it, debate it, you wonder why they get a
10 sense of injustice, of confusion in their
11 lives.
12 We have to start somewhere and
13 this is a good place to start for all of us
14 here. Just take a look at an issue that is as
15 plain as making the choice on what's right and
16 what is wrong.
17 Thank you, colleagues, and thank
18 you, Madam President, and thank you, Senator
19 Connor.
20 THE PRESIDENT: Senator Connor.
21 Senator Goodman, I had you next
22 on my list.
23 SENATOR CONNOR: Madam
4117
1 President. I'm happy to, by arrangement, yield
2 to Senator Goodman.
3 SENATOR GOODMAN: Madam
4 President. My colleagues. I would like to
5 start my remarks with a fervent prayer which is
6 that there is never, ever again going to be on
7 the planet the necessity for performing the
8 procedure which we are debating today.
9 I pray that because that
10 procedure is obviously one which causes us all
11 the deepest concern and consternation.
12 If we were fortunate enough to
13 know and had prescience that the good Lord would
14 permit all future pregnancies to proceed
15 normally, there would never be the need for this
16 procedure again.
17 But I ask you to join with me in
18 a slightly unconventional analysis of what's
19 going on in this debate, reaching back into my
20 own book of memories to the time when I was a
21 father, three young children, and during the
22 period when my wife was pregnant. What greater
23 blessing could there be in the world than to
4118
1 discover that a wanted baby is on the way, that
2 trip home from the doctor when your wife tells
3 you we're expecting a child, and those weeks and
4 months of anticipation as the development of the
5 child occurs in the womb of the woman and you
6 await with both trepidation and immense
7 anticipation the arrival of the youngster.
8 But now, my friends, journey with
9 me down a fork in the road which, unfortunately,
10 is one which occurs in a number of instances. I
11 will just mention that in the case of my third
12 born, there was a complication at the very end
13 of his birth. His cord was wrapped around his
14 neck, and it was going to be a breech birth;
15 that is to say, he would be born feet first
16 rather than head first; and for a brief,
17 stunning moment, the happiness and the exalted
18 joy of the anticipation of the arrival of that
19 child turned into a moment of fear and a
20 question mark as to what could possibly happen
21 next. I get down on my knees and thank God that
22 the child was born normal and, today, an adult
23 of whom I'm deeply proud as are my other
4119
1 children.
2 But, my friends, I ask you to
3 share with me for just a moment the experiences
4 which occur to people who are not that
5 fortunate. First of all, it is a scientific
6 fact that we do not have the ability to predict
7 precisely the course of a pregnancy. Physicians
8 tell us that even chromosomal evaluations and
9 even the use of sonogram, which, fortunately, at
10 times, can give us the prediction of the sex of
11 the child which sometimes is something we want
12 to know, has shown the advances of medical
13 science. But with all those advances, there is
14 still the possibility that at the last moment
15 something can go awry. By the last moment, I
16 mean in the final trimester of the pregnancy and
17 even beyond the final trimester, in the final
18 days.
19 Now, sit for a moment and suspend
20 your analysis of this just to make a deeply
21 subjective judgment, and, say, suppose you were
22 at home one evening after coming home from work,
23 if you were the male, and your wife said, "I was
4120
1 at the doctor this afternoon, dear. I'm sorry
2 to tell you that something has gone awry. Our
3 child is not going to be a normal child. There
4 is a possibility that this child may perish in
5 my womb from a vital defect which could kill the
6 child before birth, and the doctor has told me
7 that if that child is to die in my womb, the
8 degrading of the fetus and the tissue
9 abnormalities and the toxic substances which
10 unfortunately relate to such an incident could
11 kill me and we could lose me and the child."
12 What shall we do? What are our alternatives
13 under the circumstances wholly unanticipated in
14 which there's dire jeopardy visited upon an
15 innocent and unsuspecting couple who up to this
16 moment have had nothing but a sense of
17 exaltation?
18 My friends, this is very
19 complicated medical material, and I don't begin
20 to have the medical expertise to tell you what
21 is done in all cases, but I will tell you this,
22 that we have examined the testimony of
23 innumerable women, one of whom was here in the
4121
1 capital giving us -- sharing her experience with
2 us, and a number of others who have been quoted
3 either in writing or on videotape which I have
4 observed with great concern over recent days,
5 and in each instance, they have said, "We wanted
6 this child more than anything in the world, but
7 we were to be denied it because..." and now we
8 get into a tragic litany of possibilities.
9 Many defects are so severe that
10 they are incompatible with life: A child born
11 with no kidney, a heart with one chamber instead
12 of four, large amounts of brain tissue missing
13 or positioned in places, God help us, outside
14 the skull -- the brain is situated outside the
15 child's skull, and, indeed, there may not be a
16 skull at all. When such abnormalities occur, a
17 couple faces terrible choices, and the procedure
18 which we're debating here today is not one that
19 constitutes murder or promiscuous use of the
20 medical procedure for sex selection or to cure a
21 cleft palate or any one of a wide variety of
22 other abnormalities.
23 In fact, there are techniques
4122
1 which medical science can now use to correct
2 abnormalities during the process of gestation
3 and during the birth period itself. We've been
4 blessed with new tools, but there are
5 innumerable instances, fortunately, quite rare,
6 in which we do not have those available to us.
7 Now, I ask each and every
8 individual one of you to examine your own
9 analytical sense and your conscience to say,
10 when your wife comes home to you or you are the
11 wife, indeed, and you discover this tragic turn
12 of the wheel of fate, what should be done.
13 Well, there are some options, and
14 let's discuss them quite candidly. First of
15 all, why not let nature take its course and let
16 the woman go to term and deliver the baby and
17 pray for a miracle, even though we know that
18 miracle is obviated by the circumstances.
19 Fetuses with severe abnormalities have a high
20 chance of dying in utero even before labor
21 begins, and as I've said to you, when the fetus
22 dies in the mother's womb, the tissues break
23 down, and that could kill the mother. Make no
4123
1 mistake about it. That is a demonstrable
2 medical fact. The dead fetus within the mother
3 is a toxic experience of grave jeopardy.
4 It can -- I don't really think
5 there is a need to elaborate what can happen to
6 the mother. There is a list of horrors which
7 are tragic beyond belief.
8 Now, the question is, why not
9 induce labor with drugs? The cervix which holds
10 the uterus closed during pregnancy is very
11 resistant to dilation until about 36 weeks. For
12 those of you who sat with your wife while
13 awaiting the arrival of the child you remember
14 there's a familiar medical expression, "How many
15 fingers dilated is she?" There is a measurement
16 approximating the width of a human finger which
17 tells you when the mouth of the cervix is open,
18 and that permits circumstances which permit the
19 baby to be born. Prior to that, it is not
20 possible without the intervention of medicines
21 to have the child born. Now, inductions can be
22 done by -- at various points along the way. But
23 because of the danger of uterine rupture,
4124
1 inductions require constant nursing supervision
2 and are, therefore, done in the labor and
3 delivery room. The physical pain is greatly
4 intensified by the emotional pain of losing the
5 wanted pregnancy, and there are immense problems
6 with this type of approach.
7 Why not just do a Caesarean?
8 Perfectly logical question. A Caesarean
9 delivery generally involves twice as much blood
10 loss as a vaginal delivery; and before 36 weeks
11 gestation, the lower segment of the uterus is
12 usually too thick to use a standard horizontal
13 incision, so a vertical incision is necessary.
14 So what? Any uterine incision complicates a
15 future pregnancy, but a vertical incision is
16 more dangerous and jeopardizes both the mother's
17 health and any future pregnancy. When the
18 uterus has a vertical scar future pregnancies
19 require a Caesarean always and are more apt to
20 be complicated by uterine rupture.
21 Therefore, a new issue presents
22 itself. What about the future fertility of the
23 mother and the future capacity of the mother to
4125
1 give birth? If there are procedures in the
2 birth that jeopardize that, that's a matter of
3 vital concern, a matter relating not only to the
4 impending possible death of the mother but
5 depriving her of the opportunity to have more
6 wanted children.
7 Is there a safer and better
8 option? Medical science says yes. The safe and
9 better option is the tragic one which I pray we
10 will never have to use. But if we should, do we
11 not wish to have it in our armamentarium of
12 solutions to this type of problem that I have
13 described. This is the moral and ethical
14 dilemma which this house is asked to evaluate
15 today, and I say it is not an easy corn. I'm
16 not going to say to you this is simple, you
17 brush this decision off your lapel like a speck
18 of dust.
19 This requires, my colleagues, the
20 most profound introspection, and we must try to
21 ask ourselves, are the issues on the scales of
22 life so significant that we would dare
23 countenance what is obviously a repugnant
4126
1 procedure? The procedure itself has been amply
2 described. Senator Maltese in his great
3 sincerity has given us various documented
4 indications of how horrible this is.
5 I don't like to think about
6 this. This is uncomfortable. I never thought
7 I'd have to talk about it on the floor of this
8 house. But, my friends, if our objective is,
9 indeed, to guard the health of the mother, if it
10 is to guard the capacity for her to have future
11 children, this is something we can't escape.
12 Now, there has been discussion
13 about the President's veto message. I'm not a
14 great fan of the incumbent President, but this
15 is quite a veto message, and I'm going to share
16 parts of it with you. I think it's highly
17 important.
18 The President has said this bill
19 does not allow women to protect themselves from
20 serious threats to their health. The decision
21 to have an abortion generally should be between
22 a woman, her doctor, her conscience and her
23 God. "I've long opposed late term abortions,"
4127
1 says the President, "except where necessary to
2 protect the life or health of the mother. I can
3 not support use of a procedure on an elective
4 basis where the abortion is being performed for
5 nonhealth-related reasons and there are equally
6 safe medical procedures available. Rare and
7 tragic situations can occur in a woman's
8 pregnancy in which a doctor's medical judgment
9 for use of this procedure may be necessary to
10 save a woman's life or protect her against
11 serious injury or her health. In these
12 situations in which a woman and her family must
13 make an awful choice, the Constitution requires,
14 as it should, that the ability to choose this
15 procedure be protected."
16 Just a few more excerpts.
17 "Babies have fatal conditions and would not
18 live...who wanted anything" -- these are for
19 people who wanted anything other than an
20 abortion, but were advised by their doctors that
21 this procedure was their best chance to avert
22 the risk of death and grave harm, which in some
23 cases would have included an inability to ever
4128
1 bear children again. These babies were certain
2 to perish before, during, or shortly after
3 birth, and the only question was how much grave
4 damage was going to be done to the woman. "I
5 can not sign this house bill, H.R. 1833, because
6 by treating doctors who perform the procedure in
7 these tragic cases as criminals, the bill poses
8 a danger of serious harm to women. That is why
9 I implore Congress to add an exception for the
10 small number of compelling cases where selection
11 of the procedure in the medical judgment of the
12 attending physician was necessary to preserve
13 the life of the woman or avert serious adverse
14 consequences to her health. The life exception
15 in the current bill only covers cases where the
16 doctor believes that the woman will die. It
17 fails to cover cases where absent the procedure
18 serious physical harm, often including losing
19 the ability to have more children, is very
20 likely to occur. I told Congress that I would
21 sign the bill if it were amended to add an
22 exception for serious health consequences. I
23 understand the desire to eliminate the use of a
4129
1 procedure that appears inhumane, but to
2 eliminate it without taking into consideration
3 the rare and tragic circumstances in which its
4 use may be necessary would be even more
5 inhumane.
6 "The Congress chose not to adopt
7 the sensible and constitutionally appropriate
8 proposal I made, instead leaving women
9 unprotected against serious health risks."
10 The President is right, I
11 believe. You may not agree. The President
12 vetoed the bill, and it's very unlikely that the
13 bill will be overridden. We will pass the bill
14 today because I have no doubt that a majority of
15 my colleagues will vote for it. But it will not
16 become law because, as we know, it is a one
17 house bill.
18 So you ask, why do this? Why do
19 it at all. Perhaps there's an answer; and that
20 is, that it gives us an opportunity to ventilate
21 some of the logic or illogic that lies in these
22 very sensitive questions; and if that be the
23 case, sobeit.
4130
1 Madam President. Let me sum up
2 with this simple thought. So often, in a case
3 where an elected official who represents
4 approximately 300,000 people must try to make
5 agonizing decisions, it boils down essentially
6 to an elemental matter of gut reaction or common
7 sense, and that can best be achieved when one
8 tries to empathize with the problems that one's
9 constituents suffer from.
10 The superficial indictment of
11 this procedure is almost ineluctable. It's
12 almost incontrovertible when you hear all the
13 horrors that seem to be associated with it. But
14 the fact is that if we take just a few moments
15 to think what it means, those of you who've had
16 children -- I suspect maybe a majority in this
17 house have had the privilege and the pleasure
18 and the exalted experience of parenthood -- we
19 know how wonderful that is, but we rarely have
20 occasion to stop and think what happens when
21 God's blessings go awry, and it can happen and
22 it does happen, and it is in those instances
23 where our humane instincts must serve us, and
4131
1 that is why I implore you, my colleagues, to
2 rethink this matter and to defeat this bill in
3 the interest of our constituents' concerns.
4 THE PRESIDENT: Thank you,
5 Senator Goodman.
6 SENATOR PADAVAN: Madam
7 President. Will Senator Goodman yield to a
8 question?
9 SENATOR GOODMAN: Yes, I will,
10 Senator Padavan.
11 THE PRESIDENT: Senator Goodman
12 yields.
13 SENATOR PADAVAN: Senator,
14 listening very carefully to everything you had
15 to say, I get the impression, correct me if I'm
16 wrong, that in your view and based on the
17 information you have at hand that all of the
18 partial birth abortions that have been done in
19 this state and elsewhere were done for medical
20 reasons relevant to the health or well-being of
21 the life of the mother or because the fetus was
22 in such terrible condition that it was
23 necessary.
4132
1 THE PRESIDENT: Senator Goodman.
2 SENATOR PADAVAN: And my question
3 to you, Senator, is are any of the abortions,
4 partial birth abortions that were performed, in
5 your view, elective, meaning none of the
6 circumstances you described were present?
7 SENATOR GOODMAN: Senator, New
8 York already bans abortions after 24 weeks
9 except to save a mother's life; and after 20
10 weeks gestation, the state requires a second
11 doctor to be present to provide medical
12 attention to the fetus, even though fetuses
13 aren't capable of survival at that point.
14 So my answer to you is that if
15 there is any other reason for which these
16 abortions have been performed, it would have
17 been illegal and there is no necessity for us
18 further to regulate it.
19 SENATOR PADAVAN: Senator, that
20 doesn't answer the question. I know what's
21 legal and illegal. That's what I'm leading up
22 to. The fact remains, are you representing to
23 this body that none of these abortions
4133
1 performed, partial birth abortions well
2 described here by Senator Maltese, were done for
3 elective purposes?
4 SENATOR GOODMAN: I'm saying to
5 you, Senator, that none have been done illegally
6 and that in the context of this debate the
7 significant and paramount question is whether we
8 require an overarching law to press down upon
9 this further regulation and to impose a penalty
10 of felony.
11 I have no way of knowing the
12 answer to your question nor -
13 SENATOR PADAVAN: All right.
14 That's a fair answer.
15 SENATOR GOODMAN: Excuse me. I'm
16 not quite finished.
17 I have no way of knowing the
18 answer nor, I suspect, do you, but I do know
19 with certainty that the law would preclude it
20 and, therefore, the need for yet another law
21 which is based, in my judgment, on incomplete
22 evidence is clearly superfluous.
23 SENATOR PADAVAN: Would you yield
4134
1 to a follow-up question, Senator?
2 THE PRESIDENT: Senator Goodman,
3 do you yield?
4 SENATOR GOODMAN: I yield, Madam
5 President.
6 THE PRESIDENT: Senator Padavan.
7 SENATOR PADAVAN: Your suggestion
8 is -- again, if I heard you correctly, was that
9 we should include or as the President seemed to
10 imply in the message you read, the issue of the
11 health of the mother, serious consequences to
12 the health of the mother -- not the life but the
13 health of the mother. Would that include mental
14 health; and how does that relate to your former
15 answer, your first answer or your answer to my
16 first question?
17 THE PRESIDENT: Senator Goodman.
18 SENATOR GOODMAN: Senator, I
19 believe that the answer to that lies in a basic
20 conviction of mine, which is that those
21 judgments can best be made by the physician, by
22 his patient, by the patient's spiritual guide
23 and by the patient's family, and that for a
4135
1 legislature from the remote point that we stand
2 in Albany to reach its hand into the delivery
3 room of a hospital, conceivably hundreds and
4 hundreds of miles from the point at which we
5 speak, for us to presume that our wisdom can be
6 so great that it can permit the decisions to be
7 revoked by a physician in whose judgment
8 something needs to be done, provided it's legal,
9 would be highly inappropriate.
10 THE PRESIDENT: Senator Padavan.
11 SENATOR PADAVAN: Madam
12 President, if the Senator would yield further.
13 Senator, what I asked, and
14 perhaps I didn't make myself clear, your
15 suggestion and that of the President, I gather,
16 that the bill be amended to include adverse
17 health consequences, would that include mental
18 health, depression, or any other related area?
19 THE PRESIDENT: Senator Goodman.
20 SENATOR GOODMAN: My answer is it
21 is none of our damn business, in the sense that
22 it should be a decision between the individual
23 physician, the attending physician who has all
4136
1 of the facts relating to the pregnancy, the
2 mother herself, her spiritual advisor and her
3 family advisor. So the answer is I don't know.
4 SENATOR PADAVAN: It is our damn
5 business, but we can talk about that later.
6 Thank you.
7 THE PRESIDENT: Senator Connor.
8 SENATOR CONNOR: Thank you, Madam
9 President. I would call up my amendment at the
10 desk and waive its reading and offer an
11 explanation.
12 THE PRESIDENT: Senator Connor on
13 the amendment.
14 SENATOR CONNOR: Thank you, Madam
15 President. This is, indeed, an issue that, and
16 I've talked to many members on both sides of the
17 aisle -- that obviously people of conscience
18 differ upon, and I think many people have
19 evaluated this with a fresh look and haven't
20 just reacted from their prior positions on
21 abortion-related legislation, and I think what
22 that reflects is everyone, first of all, has a
23 line in their mind.
4137
1 And the present state of the law
2 as I have often said, in my view on it, is we
3 are a diverse state. We have many different
4 philosophical, moral, religious traditions and,
5 within those traditions or among those
6 traditions, I should say, there are differing
7 views about fundamental issues of when life
8 begins, when personality adheres to either a
9 fetus or a born child and, therefore, we would
10 perhaps want to attach legal rights at that
11 point.
12 But I think within all those
13 traditions, there's a line. If it differ from
14 one to the other, there is some line; and I have
15 listened. I listened to Senator Maltese, and I
16 have read some of the literature if it can be
17 called that and heard popular accounts of
18 different procedures. I have talked to people
19 on both sides, and, indeed, if you listen to one
20 description of this procedure, it sounds like
21 it's either right on the line or over the line
22 for most traditions.
23 And in terms of talking to people
4138
1 on both sides of this issue, I have come to
2 learn one thing with a certainty -- one thing
3 with a certainty. Don't rely on what you hear
4 from the most committed people on either side
5 and their witnesses because they are advocates
6 and people do shade the cause one way or the
7 other, and in the course of doing -- evaluating
8 this bill, a lot of questions have arisen.
9 Number 1 question is: What does
10 partial birth abortion mean? Now, Senator
11 "doctor" Maltese offered one description, but
12 it's not a medical description, and he admitted
13 that. And, clearly, this is a term that's
14 chosen -- not here but has been chosen because
15 it works in the media. It conveys a certain
16 graphic message, and it, in some respects, begs
17 the question, by using the term "birth,"
18 obviously, but I have talked to many physicians
19 and none of them know this term. None of them
20 use this term except some who seem to be
21 advocating one position particularly, sometimes
22 the other.
23 I have talked to a couple of
4139
1 obstetricians or had a couple of obstetricians
2 contacted who are not involved in this debate,
3 who you won't find testifying formally or
4 informally by the pro choice people or the pro
5 life people or whatever. The reaction I got is,
6 "We don't know what this means. I've never
7 heard of it being done certainly not in New
8 York," and that cuts one way.
9 But, Senator Maltese, I'll tell
10 you. I also asked some of them under what
11 circumstances would some fetal abnormality
12 jeopardize, for example, the future fertility or
13 health of a woman were it to be delivered, and I
14 get the answer, "Well, I don't know." These are
15 from obstetricians, "I don't know." So what's
16 clear to me is nothing is very clear about
17 this.
18 The only thing that is very clear
19 about this is some people on the national scene
20 particularly -- now it seems to have seeped its
21 way to the State of New York -- see this as some
22 sort of campaign issue, a good issue with which
23 to paint people as either extremist or
4140
1 insensitive or whatever.
2 The fact is -- the fact is for
3 many traditions, moral traditions that view
4 abortion as wrong, the method doesn't really
5 matter, and this bill is about a method, about a
6 particularly graphically disturbing method. But
7 you know what? Many, many medical procedures
8 are quite disturbing, I'm sure even to the
9 medical people. You know an operating room
10 isn't pretty no matter what the procedure is.
11 But the one thing that kind of
12 disturbs me, frankly, is an attempt to make this
13 a partisan nature, and I know Senator Bruno said
14 it is not a partisan issue, and it is not. The
15 citing of prominent Democrats in Washington who
16 voted for a comparable bill. I don't know what
17 point that drives to unless it is to try and
18 depict some underlying partisan consideration.
19 I would remind this house that
20 New York's present portion law on the books, on
21 the statute books passed in 1970 by a Republican
22 controlled Senate under Earl Brydges, passed in
23 1970 by a Republican controlled Assembly under
4141
1 Perry Duryea, and signed by Nelson Rockefeller,
2 a Republican Governor, remains on the books
3 although some aspects of it, perhaps -- and it
4 predates Rowe v. Wade. Some aspects of it may
5 in fact be interpreted by courts in light of the
6 subsequent decision in Rowe v. Wade and other
7 cases.
8 That law does, as Senator Goodman
9 pointed out -- that law does forbid third
10 trimester abortions except to save the life of
11 the mother; and because Rowe v. Wade also
12 addressed the health concerns of the woman, it
13 has been interpreted to further be modified by
14 that decision to apply in certain circumstances
15 when the health of the woman is in serious
16 jeopardy. But that law remains on the books.
17 So when I hear evidence from
18 advocates for this bill that cite a doctor who
19 says, "Oh, I perform lots of these in New York
20 and in 80 percent of the cases they were merely
21 elective," I say why are we listening to
22 testimony from such an admitted outlaw? Those
23 operations were illegal if, indeed, they were
4142
1 performed for those reasons by that doctor who
2 now comes and said to us, "I did it." To me,
3 not a credible witness. To me, not a credible
4 witness for obvious reasons.
5 Now, while Senator Bruno talked
6 very much about the third trimester, his concern
7 with the stage of fetal development during that
8 time and the status in the law as it is and as
9 he would have it be with respect to that third
10 trimester, Senator Maltese hasn't limited his
11 bill, and he was quite candid about it. His
12 bill deals with a method. His bill deals with a
13 method regardless of the stage of gestation
14 involved.
15 And, rightly or wrongly, you can
16 agree or disagree, but the Supreme Court has
17 told us in Rowe v. Wade it is the law of the
18 land that the legislature of a state can only
19 outlaw abortion in the third trimester except
20 when a mother's life is in danger or her health
21 is in danger. So Senator Maltese has been quite
22 candid. He has confirmed for us what many of
23 the pro choice people have been saying. This
4143
1 bill isn't limited to a procedure that occurs
2 very late in a pregnancy, in the third
3 trimester.
4 The interesting thing about this
5 approach of attacking a method is, if you
6 believe that third trimester abortion is wrong,
7 ought to remain wrong, you ought not care about
8 the method, distasteful, I mean, or whether it's
9 a cleaned-up method that seems somehow more
10 palatable and remote. Indeed, I'm sure many,
11 many advocates of great conscience who feel that
12 public policy, the public policy of the State of
13 New York ought to reflect their particular
14 religious, moral, ethical tradition that might
15 view, for example, life as beginning at
16 conception, would in all honesty have to say the
17 method doesn't matter. The method doesn't
18 matter; abortion is wrong. So why this attack
19 on a method other than, frankly the shock value
20 involved?
21 And, as I say, this is not a
22 partisan issue. There is no Democratic or
23 Republican position on this. Indeed, we have in
4144
1 this very house people from both parties on both
2 sides of this issue. The amendment that I have
3 offered -
4 And let me tell you my
5 conclusions, therefore, about the main bill. I
6 really regret that we haven't had the
7 opportunity to have serious hearings on this
8 from serious medical people who are not enlisted
9 in any cause. They are not enlisted in a pro
10 choice cause; they are not enlisted in a pro
11 life cause, or let's hear medical opinion from
12 those sides, but let's also hear some middle
13 ground medical opinion, because I have heard
14 quite contrary opinions on what this procedure
15 is, when it is necessary, when it is
16 appropriately used, when it is presently legally
17 used, to the extent that if I admit to some
18 confusion, I share it.
19 And Senator Maltese says, you
20 know, we're really here to vote on an issue, and
21 he acknowledged that it's going nowhere as a
22 matter of law or as a statute, but he felt we
23 ought to make a statement; and, indeed, I sat
4145
1 here wondering, then, "Why not pass a sense of a
2 Senate resolution instead of a one-house
3 criminalizing bill?" if what we're really about
4 is expressing some sense of revulsion at a
5 particular medical method and then, having done
6 that, let the medical profession come back and
7 say that we don't know anything about practicing
8 medicine because most of us, probably none of
9 us, know that much about it, to tell you the
10 truth.
11 And my conclusion, therefore, is
12 that it's very difficult for me to accept this
13 bill particularly as is because it is just a
14 statement. It deals with a procedure. It
15 leaves gaps. It's own proponents differ as to
16 whether it's a third trimester or a 20-week bill
17 if you talk about periods of gestation.
18 The one thing it's missing -- and
19 if you want to talk about absolutes, and you
20 know this is a big -- gets framed in absolutes
21 all the time. People use words like "murderer"
22 and so on and so forth, absolute terms whereby
23 one judges another, and I don't presume to judge
4146
1 anyone nor do I think we can fairly judge nor do
2 I think any respected religious leader pretends
3 to judge the individual conscience of anyone, of
4 any woman, certainly, who finds the necessity or
5 undergoes an abortion at any stage, because it
6 is a difficult personal choice and, ultimately,
7 we are all accountable to our own consciences.
8 But we frame it in absolutes, but
9 Senator Maltese's bill isn't absolute. It has
10 an exception. It has an exception written into
11 it in those cases where it's necessary to
12 preserve and save the life of the woman and I
13 think we probably all think that's a reasonable
14 exception. Is it an exception to the absolute
15 moral law as some people see it? Yes, it is.
16 But it's a public policy exception that I
17 believe we all agree it is wise as a matter of
18 public policy to make. Indeed, even as we for
19 give those who in self-defense take action, we
20 must recognize the right of every person in this
21 state including, certainly, the women in this
22 state to preserve their rights, to take action
23 to do that.
4147
1 And I think we must go further.
2 I think the law of the land compels it and good
3 public policy -- if not theology, good public
4 policy, which is our business, because I doubt
5 any in this body pretend to be theologians. I
6 certainly am not, and I don't have any
7 theological quarrels with anyone.
8 But as a matter of public policy,
9 we ought to protect the health of the women in
10 this state, and we ought to recognize that a
11 woman has a right under these circumstances to
12 take action consulting with her physician and
13 those with whom else she chooses to consult. I
14 doubt many women in this state would choose to
15 consult with the Legislature in this state over
16 such an important personal decision. But if
17 they chose to, we all have phone numbers -- but
18 whoever they chose to consult with, and their
19 physician and make that choice to preserve their
20 health from serious adverse consequences.
21 Now, we know people will quarrel
22 and say, does that include psychological? Does
23 that include this and that? What do I mean by
4148
1 this amendment? Therefore, what this amendment
2 does is add a further exception to Senator
3 Maltese's bill to provide that the provisions
4 shall not apply to an abortion performed where
5 in the medical judgment of the attending
6 physician the abortion is necessary to preserve
7 the life of the woman or avert serious adverse
8 health consequences to the woman.
9 Now, serious adverse health
10 consequences, what does that mean? Well, I
11 suppose as proposed by me or written by me or
12 proposed by the President, it's as accurate a
13 description of a common sense thing as the term
14 partial birth abortion is. I don't know that
15 it's out of the medical textbooks, but I know in
16 common sense what we mean. It doesn't mean an
17 ingrown toe nail. It doesn't mean a slight
18 headache that goes away in ten minutes. It
19 doesn't mean inconvenience. Serious adverse
20 health consequences I think we all understand
21 mean serious physical damage, having the element
22 of perhaps permanent damage, or having serious
23 other consequences like infertility or some
4149
1 other physical function that would be impaired
2 in the future in a serious way. That's what it
3 means. That's what it means.
4 And if anybody wants to get up
5 and say, "I'm not sure it might not include
6 something too wide," well, show me. Prove it to
7 me. Just as Senator Maltese wants to make a
8 statement about something his bill calls partial
9 birth abortion, I want to make a statement about
10 the value of the serious health concerns of the
11 women of the State of New York and accept this
12 amendment -- accept this amendment that allows
13 an exception to protect a woman in the case of
14 serious adverse health consequences. You know,
15 and, by the way, some may get up and say there
16 aren't that many serious adverse health
17 consequences. So, there aren't. Whatever there
18 are, there are, and there ought to be an
19 exception.
20 Add this amendment to the bill.
21 Add this amendment to the bill, and I would have
22 no problem with the bill as a statement, as a
23 statement addressed at the procedure that
4150
1 Senator Maltese described which I don't really
2 have the competence. I have public policy
3 competence. I certainly don't have medical
4 competence to decide whether it happens quite
5 that way or not. But, you know what, in the
6 late term, I don't really care how it happens.
7 I don't really care how they do a third
8 trimester abortion. I'm not for it. I'm not
9 for it unless it's absolutely medically
10 necessary to save a woman's life or preserve her
11 from adverse serious health consequences.
12 So, Madam President, I would urge
13 the adoption of this amendment. It is similar
14 to that which the President held out. It is
15 made in all seriousness, because I think it is
16 necessary. It is the right of a woman. Whether
17 one disagree with that right as a moral or
18 theological principle, I think it is a matter of
19 the public policy in our diverse and free
20 society that a woman together with her physician
21 has a right to take action to preserve her life
22 and her serious health concerns.
23 And, again, in my mind, this
4151
1 method, any other method, unless done for these
2 reasons ought to remain, as it is, illegal.
3 THE PRESIDENT: Does anyone
4 desire to speak on the amendment?
5 On the amendment, Senator Gold.
6 SENATOR GOLD: Thank you, Madam
7 President.
8 SENATOR LEICHTER: Excuse me,
9 Madam President. With all due respect to
10 Senator Gold, I think that we have a list.
11 THE PRESIDENT: That's right. We
12 do. I'm going to call for a question on the
13 amendment.
14 SENATOR GOLD: I think I'm on the
15 list next, anyway.
16 SENATOR LEICHTER: Okay.
17 SENATOR GOLD: I'm next on the
18 list.
19 THE PRESIDENT: Senator Gold is
20 next on the list.
21 SENATOR LEICHTER: May I just
22 continue my point of order because as you called
23 it, Madam President, it seemed as if you were
4152
1 going to set up a new list on the amendment.
2 THE PRESIDENT: No.
3 SENATOR LEICHTER: All right.
4 You will continue on the list. Thank you.
5 SENATOR GOLD: Thank you, Madam
6 President, and my fellow "doctors."
7 I guess, at times, I'm as good at
8 pointing at the other side of the aisle and
9 claiming politics is being done as anybody else,
10 and I think certainly, Senator Maltese, this is
11 one day when that is inappropriate because there
12 certainly will be people on both sides who do
13 various things; and if nothing else, we can all
14 agree that this certainly ought to be a vote of
15 conscience and not one of politics.
16 But it's interesting. My dear
17 friend and colleague Senator Farley and I were
18 exchanging some words about this a couple of
19 days ago, and Senator Farley said, "Well, this
20 is an issue that really should be on the floor,"
21 and I said to Senator Farley, "Well, that may be
22 so but we don't vote on issues; we vote on
23 specific pieces of legislation to become law,"
4153
1 and Senator Farley said, "Manny, you're wrong;
2 we vote on issues."
3 Senator Farley, unfortunately,
4 you're right and I am wrong, although I wish I
5 were right. Because when we finish talking
6 about issues, a law sometimes comes out of it,
7 and then in the courtroom a judge and a jury
8 does not want to know about an issue. They are
9 bound by a piece of paper.
10 Having said that and recognizing
11 that Senator Farley is probably right and today
12 we're discussing issues, unfortunately, I am
13 disturbed as a law maker that there are words
14 used in this bill that really are not defined in
15 law. I'm disturbed that there are memos that
16 question whether doctors or people in the
17 medical professions can really deal with this
18 law as it's written.
19 I am also interested in the
20 observation that we have had legislation on this
21 floor -- I think it was offered by Senator Levy
22 but I may be wrong -- which discusses noise in
23 our community; and when it comes to discussing
4154
1 noise, we can put into law decibel levels and
2 all kinds of technical things to tell people how
3 bad their boom boxes are or their car radios
4 are, but when it comes to an issue of this
5 particular magnitude and medical significance,
6 we can't seem to get definitions or anything
7 more exacting than this bill. I think that's
8 extraordinarily curious.
9 I was very much taken by and want
10 to compliment my colleague Senator Goodman,
11 particularly the touch of starting with a
12 prayer. I think that that was very, very taste
13 ful and, Senator, I would concur in that
14 remark. Interestingly enough, Senator, we don't
15 know so much about each other until we get into
16 certain debates, and I think an awful lot of
17 personal things are kept that are personal, but
18 having also had a daughter born with an
19 umbilical cord around her neck and gone through
20 that, I can sympathize to what you were saying.
21 This debate also happens on the eve of the
22 yahrzeit of a son of mine who passed away as a
23 result of SIDS.
4155
1 So, Senator, I and others know
2 what it is to have children and to kvell with
3 them and to love them, and I know what it is to
4 have the losses, and we all know that. We all
5 know that and appreciate that.
6 But I think that the most telling
7 conversations that I have had in this area were
8 with my own leader and also with some people on
9 your side of the aisle who I won't name, because
10 what Senator Connor has said in private is
11 pretty much what he said in public, and what
12 some of the Republican colleagues of mine have
13 said in private will probably stay there. But
14 what it is is, why can't we sit down and get a
15 bill and have everybody participate? Because if
16 there is a terrible thing going on out there and
17 it is not a pro choice issue, it's not an
18 abortion issue, it's a more humane kind of
19 thing, why not just let's really get a bill that
20 the liberals, the conservatives, the pro's, the
21 con's, can agree that something is wrong? We
22 can take away the label and maybe all of us get
23 together on that issue.
4156
1 And to tell you the truth, I
2 don't know why. I don't know why. I feel very
3 much similar to Senator Connor that I kind of
4 wish that there was a bill of this nature in
5 this area dealing with this issue that I could
6 support, and I'll tell you why, Senator
7 Maltese.
8 Back in the days when abortion
9 become legal, there was a vote in the Assembly
10 and Perry Duryea said, if there were 75 votes,
11 he as the Speaker would cast the 76th vote, and
12 there was a special election in February of that
13 year, and it was very hotly contested and
14 although the district was overwhelmingly
15 Democratic, thanks to Senator Maltese and some
16 of his colleagues, I almost lost that special
17 election. But having won it, I was the 75th
18 vote which forced Perry Duryea to cast the 76th
19 vote, so that election was very important in
20 terms of the history of abortion in New York
21 State.
22 Having said that I personally,
23 Senator, don't believe in abortion. So you say,
4157
1 well, how did you cast your vote? My vote was
2 not whether I personally wanted to be involved.
3 It was on the overall issue of women's right and
4 a particular woman's right to make a choice.
5 So, Senator, it's not that I and
6 others along the line may have said that you
7 wake up each morning praying that abortions take
8 place, that we are for abortion. It's such a
9 terrible way to phrase it. The only thing I
10 think we have ever said is that we are not
11 doctors, that this is an issue between a woman
12 and her doctor, and maybe we're not as smart as
13 we would like to think we are. We ought to keep
14 our nose out of it; and from that point of view,
15 it made some sense.
16 Having said that, Senator, I do
17 believe as a human being I'm allowed to have a
18 mind, and if I think something is really wrong
19 and goes past a certain line, I'm not afraid to
20 say that.
21 Senator Maltese, you are in an
22 area where many of us who were responsible for
23 changes in New York State law in the area of
4158
1 abortion would like to work with you to draw a
2 line where everyone can agree we have gone
3 perhaps too far, and where doctors and women can
4 agree, and I'm sorry that unfortunately we have
5 not worked towards that.
6 I think that, as a minimum,
7 Senator Connor is right. If the Connor
8 amendment were accepted, Senator, we get a lot
9 out of the way. We don't have to use
10 expressions like Rowe v. Wade. We don't have to
11 worry whether we are at that point. We don't
12 have to worry about whether the Maltese bill is
13 an attempt to go behind Rowe v. Wade. We don't
14 have to worry about where the trimesters are
15 coming in. If the Connor bill were to pass,
16 Senator, it might alleviate an awful lot concern
17 of a lot of people in this chamber.
18 There are certain people in this
19 chamber, I'm sure, who might feel that if that
20 amendment passed, there are still other things
21 they are looking for; and I shrug my shoulders
22 and, Senator, I tell you that could be the case
23 with many, many things in many situations.
4159
1 But your proposal, Senator
2 Maltese, if it passes today will not become the
3 law of the land today or tomorrow or next week,
4 so we are not rushing to save some situation
5 that you may have in mind. On the other hand,
6 if the Connor amendment were to pass, it might
7 change dramatically the whole negotiation in
8 this area.
9 I have heard people say they're
10 very worried about this bill because New York
11 State is a leader; and while the federal
12 government is dealing with this issue, if New
13 York State were to do something, that might have
14 some effect.
15 And things are happening
16 nationally, Senator. I think it's fascinating
17 that the presidential choice-of-your-party-to-be
18 is now faced with problems within the party
19 itself. We have our Governor, we have Christie
20 Whitman, and I heard today that Governor Pete
21 Wilson of California is now getting on that
22 bandwagon which says that let's get the abortion
23 issue out of your party's platform. I know
4160
1 Senator Dole is not happy with that.
2 But we in this state might be
3 able to do something in this area which is very
4 helpful, but I think, Senator, if that's going
5 to happen then the dialogue has to be between
6 people of good will who, perhaps, have been on
7 opposite sides, very extreme opposite sides of
8 this debate in years gone by, coming in and
9 saying we might have trouble in the middle, but
10 we can cut the extremes and show people this is
11 an area where it's possible to work.
12 So I am going to basically rest
13 on what I have said. I think Senator Connor
14 said it extraordinarily well. I'm very proud of
15 the remarks of Senator Goodman, and, Senator
16 Maltese, I'm proud of you, too, because I know
17 you fight for what you believe in, and this is
18 an area where you are totally sincere. But,
19 Senator, I think you are missing an opportunity
20 if you out of hand vote for Senator Connor's
21 amendment. It is well thought out. It is not a
22 crazy. It is not an amendment that takes you
23 away from any place that you could not be
4161
1 comfortable; and for that reason, I will support
2 the amendment and sincerely hope that it passes.
3 THE PRESIDENT: Has everyone who
4 wishes to speak on the amendment been heard?
5 (There was no response.)
6 The question is on the
7 amendment. All those in favor.
8 (Response of "Slow roll call.")
9 Are there five members requesting
10 a slow roll call?
11 (Whereupon, members requesting a
12 slow roll call were standing.)
13 The Secretary will call the
14 roll. All those in favor of the amendment
15 signify by saying aye.
16 THE SECRETARY: Senator Abate.
17 SENATOR ABATE: Aye.
18 THE SECRETARY: Senator Alesi.
19 SENATOR ALESI: No.
20 THE SECRETARY: Senator Babbush.
21 (There was no response.)
22 Senator Bruno.
23 SENATOR BRUNO: (Indicating no.)
4162
1 THE SECRETARY: Senator Connor.
2 SENATOR CONNOR: Madam
3 President. In explaining my vote, I want to
4 address something that I think is an under
5 current here, and that is somehow or other that
6 serious -- the term serious adverse health
7 consequences can somehow be lightly invoked,
8 somehow be deemed to be abortion on demand.
9 That is not the intent of this sponsorship. I
10 think I made that clear. We are talking about
11 serious adverse physical health consequences to
12 the woman; and if someone has a better word of
13 art for this, I welcome that addition, but I
14 think it's our obligation in making public
15 policy to preserve this right for women to take
16 an action to preserve themselves from serious
17 consequences.
18 I vote aye.
19 THE PRESIDENT: Thank you.
20 Senator Abate is going to explain
21 her vote.
22 SENATOR ABATE: Yes. I support
23 this amendment, and I think we can gain courage
4163
1 and guidance from a number of other states
2 throughout the country that do not allow
3 abortions after viability unless in fact they
4 are necessary to preserve the women's life or
5 physical health, but both exceptions are
6 included in the law, and let me just put on the
7 record how many states allow these abortions,
8 again, to preserve the life or the health of the
9 mother -- Alabama, Arizona, Arkansas,
10 California, Connecticut, Indiana, Iowa,
11 Kentucky, Louisiana, Maine, Maryland,
12 Massachusetts, Minnesota, Missouri, Montana,
13 Nebraska, Nevada, North Carolina, North Dakota,
14 Oklahoma, Pennsylvania, South Carolina, South
15 Dakota, Tennessee, Texas, Virginia, Washington,
16 Wisconsin, Wyoming. Over 30 some states in
17 their wisdom -- and let us take guidance from
18 their action -- have said that no one likes late
19 term abortions, but when it's necessary under
20 the medical guidance of -- sound medical
21 guidance, when it's necessary to preserve the
22 life of the mother or preserve the woman against
23 unnecessary health consequences, the law of the
4164
1 land and this law is enacted in many states
2 throughout this country.
3 Again, this is not a courageous
4 step in this state. We should follow the wisdom
5 and guidance of so many other states in this
6 country.
7 THE PRESIDENT: Thank you,
8 Senator Abate.
9 Continue to call the roll,
10 please.
11 THE SECRETARY: Senator Cook.
12 SENATOR COOK: Yes.
13 THE SECRETARY: Senator
14 DeFrancisco.
15 SENATOR DeFRANCISCO: No.
16 THE SECRETARY: Senator DiCarlo.
17 SENATOR DiCARLO: No.
18 THE SECRETARY: Senator
19 Dollinger.
20 SENATOR DOLLINGER: To explain my
21 vote, Madam President.
22 THE PRESIDENT: Senator
23 Dollinger.
4165
1 SENATOR DOLLINGER: Madam
2 President. I have a lot to say about this bill,
3 and I'll wait until we consider the bill on the
4 merits, but it seems to me that if we want to
5 follow the guidance of our leader, Senator
6 Bruno, about what the right thing to do is, this
7 is it. The Constitution of the United States,
8 the document that governs all of our conduct,
9 the one that we're sworn to uphold when we took
10 an oath of office, says that a late term
11 abortion cannot be performed unless the life or
12 the health of the mother is at stake. That's
13 what it says according to the United States
14 Supreme Court.
15 I know there are a lot of people
16 in this room -- in fact, there are a lot of
17 people who will vote on this measure who
18 disagree profoundly with the Supreme Court's
19 articulation; but, nonetheless, that's what our
20 Constitution tells us. What this bill will do
21 is -- in my judgment, this bill will take us
22 exactly as far as the United States Constitution
23 allows an elected majority to go. United States
4166
1 Supreme Court has said we can not force a woman
2 to choose between her life and her health in
3 making this decision.
4 If this amendment passes, as I
5 believe it should, because I believe we've got
6 the power to move that far and that we should
7 move that far, but if this amendment passes and
8 this bill is changed, I will vote for this bill
9 as an exercise of the power given to this
10 Legislature representing a majority of people in
11 this state to do the right thing. Without it,
12 under the Constitution that we all revere, we
13 will do the wrong thing.
14 I vote aye, Madam President.
15 THE PRESIDENT: Thank you,
16 Senator Dollinger.
17 Continue the roll call, please.
18 THE SECRETARY: Senator Espada.
19 SENATOR ESPADA: Yes.
20 THE SECRETARY: Senator Farley.
21 SENATOR FARLEY: No.
22 THE SECRETARY: Senator Gold.
23 SENATOR GOLD: Yes on the
4167
1 amendment.
2 THE SECRETARY: Senator
3 Gonzalez.
4 SENATOR GONZALEZ: Yes.
5 THE SECRETARY: Senator Goodman.
6 SENATOR GOODMAN: Yes.
7 THE SECRETARY: Senator Hannon.
8 SENATOR HANNON: No.
9 THE SECRETARY: Senator Hoblock.
10 SENATOR HOBLOCK: No.
11 THE SECRETARY: Senator
12 Hoffmann.
13 SENATOR HOFFMANN: Yes.
14 THE SECRETARY: Senator Holland.
15 SENATOR HOLLAND: No.
16 THE SECRETARY: Senator Johnson.
17 SENATOR JOHNSON: No.
18 THE SECRETARY: Senator Kruger.
19 (There was no response.)
20 Senator Kuhl.
21 SENATOR KUHL: No.
22 THE SECRETARY: Senator Lachman.
23 SENATOR LACHMAN: Aye on the
4168
1 amendment.
2 THE PRESIDENT: Senator Lack.
3 SENATOR LACK: No.
4 THE SECRETARY: Senator Larkin.
5 SENATOR LARKIN: No.
6 THE SECRETARY: Senator LaValle.
7 SENATOR LAVALLE: No.
8 THE SECRETARY: Senator Leibell.
9 SENATOR LEIBELL: No.
10 THE SECRETARY: Senator Leichter.
11 THE PRESIDENT: Senator Leichter.
12 SENATOR LEICHTER: To briefly
13 explain my vote.
14 I think it's regrettable that we
15 would turn down an amendment that would
16 recognize the importance of the health of the
17 woman; and as Senator Connor has raised it, he
18 has really made it extremely narrow. In fact, I
19 must say so narrow that it causes me some
20 question as to whether it would cure what I
21 consider a major constitutional and other
22 deficiencies in the bill before us. But there
23 is no question that this amendment at least in
4169
1 recognizing the importance of the health of the
2 mother makes a great improvement.
3 I vote yes.
4 THE PRESIDENT: Continue the roll
5 call, please.
6 THE SECRETARY: Senator Levy.
7 SENATOR LEVY: No.
8 THE SECRETARY: Senator Libous.
9 SENATOR LIBOUS: No.
10 THE SECRETARY: Senator Maltese.
11 SENATOR MALTESE: No.
12 THE SECRETARY: Senator
13 Marcellino.
14 SENATOR MARCELLINO: No.
15 THE SECRETARY: Senator Marchi.
16 SENATOR MARCHI: Madam President.
17 THE PRESIDENT: Senator Marchi.
18 SENATOR MARCHI: I think it's a
19 bit disingenuous to urge this amendment when the
20 measure that was described by Senator Maltese as
21 being a one-houser. Does that mean that the
22 Assembly will not take notice of what has been
23 offered by my distinguished colleague and pass
4170
1 it? In that event, you would have a
2 conference. In that event, the fact that there
3 is this emotion and this feeling would have an
4 auspices under which it would be discussed. I
5 have an idea, and I hope I'm wrong, Madam
6 President, there is no expectation in this house
7 that this bill will be taken up at all in the
8 House, and that's why it's being termed a one
9 houser. I hope I'm wrong.
10 I vote no.
11 THE PRESIDENT: Continue the roll
12 call, please.
13 THE SECRETARY: Senator
14 Markowitz.
15 SENATOR MARKOWITZ: Yes.
16 THE SECRETARY: Senator Maziarz.
17 SENATOR MAZIARZ: No.
18 THE SECRETARY: Senator Mendez.
19 SENATOR MENDEZ: Yes.
20 THE SECRETARY: Senator
21 Montgomery.
22 SENATOR MONTGOMERY: Yes.
23 THE SECRETARY: Senator Nanula.
4171
1 SENATOR NANULA: Yes.
2 THE SECRETARY: Senator
3 Nozzolio.
4 SENATOR NOZZOLIO: No.
5 THE SECRETARY: Senator Onorato.
6 SENATOR ONORATO: Aye.
7 THE SECRETARY: Senator
8 Oppenheimer.
9 SENATOR OPPENHEIMER: I will be
10 voting yes.
11 THE PRESIDENT: Senator
12 Oppenheimer.
13 SENATOR OPPENHEIMER: Thank you,
14 Madam President. If we are to be concerned
15 about the constitutionality of the laws that we
16 pass in this chamber and in New York State, I
17 think we have to consider this amendment and
18 vote positively on it, because, otherwise, we
19 are voting on something that is
20 unconstitutional. It is very clear that we by
21 law -- Rowe versus Wade says we can not impose
22 restrictions on a woman's health when the
23 question is the woman's health versus the
4172
1 survival of the fetus; and in this instance by
2 not looking at the woman's health, be it
3 emotional or be it physical or be it
4 reproductive health, we are simply not looking
5 at the health.
6 And that health question -- it
7 was raised before. Do we mean emotional
8 health? I think we mean what the medical
9 profession deems to be of important
10 consideration to that pregnant woman. We are
11 not doctors. We should not be trying to make
12 those decisions. We should be looking at
13 government and dealing with governmental
14 issues.
15 I vote yes.
16 THE PRESIDENT: Thank you.
17 Continue the roll call vote,
18 please.
19 THE PRESIDENT: Senator Padavan.
20 SENATOR PADAVAN: No.
21 THE SECRETARY: Senator Paterson.
22 THE PRESIDENT: Senator Paterson.
23 SENATOR PATERSON: Madam
4173
1 President. To explain my vote. I think that
2 Senator Maltese has identified a problem and
3 Senator Connor has refined it. The issue of a
4 woman's health and the serious ramifications are
5 extremely serious and are well identified in
6 this amendment and I think must be adopted.
7 Unfortunately, I think that we
8 have all collectively, maybe not individually,
9 done a disservice to the public regardless of
10 how we stand on this particular issue by rushing
11 this bill, by bringing it before the house as we
12 did last week; and, interestingly enough, the
13 effective date of this bill wouldn't have been
14 immediately -- as you think it would be if this
15 was such a serious emergency -- but the
16 effective date of this bill is in November, and
17 I think that this is really indicative of the
18 politics of confusion, which we have even heard
19 in this particular debate. What we have allowed
20 is for those who have the strongest voices and
21 the greatest resources to impress their views on
22 us rather than doing as Senator Connor
23 suggested, holding hearings and really
4174
1 approaching some of the medical personnel and
2 some of the organizations that don't have a
3 vital interest in advocacy and bringing them
4 before us to get, perhaps, a more prescribed
5 and, certainly, more scrupulous look at this
6 particular bill.
7 This is not to, in any way,
8 diminish the efforts of people who feel very
9 strongly about this issue who have come here to
10 lobby and come here to watch this debate today.
11 We certainly respect them and we certainly feel
12 that there is sincerity in their point of view,
13 but the fact remains that this is a deliberative
14 body that is supposed to examine the information
15 in a very cautious fashion, which we have not
16 done in this particular issue. What we have
17 done, rather, is to antagonize the constituency
18 regardless of how people feel on such a
19 sensitive issue and an issue that is so close to
20 people's hearts and touches their moral
21 character.
22 I don't know how any of us as
23 part of this chamber can leave here today with
4175
1 any kind of dignity, knowing that we have
2 allowed this to happen, other than those of us
3 who tried to challenge the process that has
4 produced this kind of situation.
5 I think the amendment is a fine
6 amendment and addresses the constitutional
7 guarantees that already exist as a result of the
8 Rowe v. Wade Supreme Court decision of 1972, and
9 I think that it should be adopted and this
10 discussion will go on, but we should remember
11 that the focus of this discussion is today, and
12 so to put my vote on the record I'm in favor.
13 THE PRESIDENT: Thank you.
14 Continue the roll call, please.
15 THE SECRETARY: Senator Present.
16 SENATOR PRESENT: No.
17 THE SECRETARY: Senator Rath.
18 SENATOR RATH: No.
19 THE SECRETARY: Senator Saland.
20 SENATOR SALAND: No.
21 THE SECRETARY: Senator
22 Santiago.
23 SENATOR SANTIAGO: Yes.
4176
1 THE SECRETARY: Senator
2 Seabrook.
3 SENATOR SEABROOK: Yes.
4 THE SECRETARY: Senator Sears.
5 SENATOR SEARS: No.
6 THE SECRETARY: Senator Seward.
7 SENATOR SEWARD: No.
8 THE SECRETARY: Senator Skelos.
9 SENATOR SKELOS: No.
10 THE SECRETARY: Senator Smith.
11 SENATOR SMITH: Yes.
12 THE SECRETARY: Senator Spano.
13 SENATOR SPANO: No.
14 THE SECRETARY: Senator
15 Stachowski.
16 SENATOR STACHOWSKI: Yes.
17 THE SECRETARY: Senator Stafford.
18 SENATOR STAFFORD: No.
19 THE SECRETARY: Senator Stavisky.
20 SENATOR STAVISKY: Aye.
21 THE SECRETARY: Senator Trunzo.
22 SENATOR TRUNZO: No.
23 THE SECRETARY: Senator Tully.
4177
1 SENATOR TULLY: No.
2 THE SECRETARY: Senator Velella.
3 SENATOR VELELLA: No.
4 THE SECRETARY: Senator Volker.
5 SENATOR VOLKER: No.
6 THE SECRETARY: Senator Waldon.
7 SENATOR WALDON: To explain my
8 vote.
9 THE PRESIDENT: Senator Waldon.
10 SENATOR WALDON: Thank you very
11 much, Madam President.
12 What we have seen here today is
13 great theater. We have a proposal which
14 obviously is admittedly a one-house bill. We
15 have a proposal which flies in the face of the
16 Constitution not of New York State but of the
17 United States. It flies in the face of court
18 precedent; and when someone in the guise of
19 Senator Connor, the Minority Leader, makes an
20 amendment proposal which will cure the defects
21 of the one-house bill which flies in the face of
22 the Constitution, we're going to defeat that
23 amendment. I believe that we should be ashamed
4178
1 of ourselves as an institution. We should be
2 ashamed of the disrespect shown by this proposal
3 and our action regarding the bedrock of our
4 nation, the Constitution of the United States.
5 We should be ashamed of playing to the gallery
6 on an issue that is a one-house issue because we
7 know in its present state, unless this amendment
8 is accepted, is incorporated into the bill and
9 through consultation with the Assembly is made a
10 bill of both houses that our Governor can act
11 upon, we know that all we're doing is spinning
12 our wheels in the muck and mire of political
13 rhetoric.
14 For all of those reasons, I must
15 vote with Senator Connor because I believe his
16 wisdom is the wisdom that is shown in this body
17 today.
18 THE PRESIDENT: Thank you,
19 Senator Waldon.
20 Continuing the roll call, please.
21 THE SECRETARY: Senator Wright.
22 SENATOR WRIGHT: No.
23 THE PRESIDENT: Absentees,
4179
1 please.
2 THE SECRETARY: Senator Babbush.
3 SENATOR BABBUSH: It's very rare
4 that I get up. I have to tell you I support my
5 leader, Marty Connor, on this issue completely.
6 I am voting yes on the amendment, and let me
7 tell you. This bill should not even be here
8 because, if you want to talk about abortion, and
9 all respect to Senator Maltese, this bill is an
10 abortion.
11 Thank you.
12 THE SECRETARY: Senator Kruger.
13 (There was no response.)
14 THE PRESIDENT: Results, please.
15 THE SECRETARY: Ayes 25. Nays
16 35.
17 THE PRESIDENT: The amendment is
18 defeated.
19 Senator Farley.
20 SENATOR FARLEY: Thank you, Madam
21 President.
22 Let me first say, Senator
23 Maltese, I applaud you for bringing this bill
4180
1 before us dealing with this partial birth
2 procedure. This is a procedure that shocks
3 humanity. 85 percent of our state is appalled
4 by this barbaric procedure.
5 Senator Bruno said it very
6 clearly. This is not a pro-choice, pro-life
7 issue. It's an issue of common decency. You
8 know, in the Conference the other day, a doctor
9 was asked, Is there another procedure that can
10 be opted for, another procedure than where you
11 suck the brain out of the babies, out of their
12 skull? He said, yes, there are a couple other
13 procedures: A saline solution procedure where
14 they inject a saline solution into the umbilical
15 cord and a chemical is inserted in the uterus,
16 and so forth, but both of these endanger the
17 mother, and they didn't necessarily abort the
18 child. The procedure that is used in almost all
19 cases is this partial birth procedure where you
20 jam an instrument into their skull and suck the
21 brains out of a child that could live on its own
22 supposedly.
23 Incidentally, with all -- with
4181
1 all of these -- this discussion, and I think
2 there's a point that they're trying to make,
3 Senator Maltese's bill does protect the life of
4 a mother.
5 It's kind of shocking, the other
6 day in the New York Post that a woman testifying
7 before the United States Congress who's a
8 subject of a seven and a half-month abortion,
9 doctor was out of the room, she happened to
10 live, and she says, "I'm happy to be alive and I
11 thank God every day for life."
12 It's pretty horrible when you
13 think that these late-term abortions even
14 exist. But let me say this: We're talking about
15 one-house bills, and Senator Waldon who I
16 respect and I know that abhors this procedure,
17 Senator Connor, I know has influence and I'm
18 confident that he could get a Majority member of
19 the other house to introduce a bill and it would
20 pass with overwhelming support with his
21 amendment over there, and we could have a
22 conference committee, as Senator Marchi has
23 spoken about, and we could have something that
4182
1 the Governor has said that he would be pleased
2 to sign.
3 This is a procedure that should
4 not be allowed in this state. It's a procedure
5 that shouldn't be allowed in the United States.
6 When you're talking about the health of the
7 mother, now I realize -- and I applaud Senator
8 Connor on his amendment that he just didn't say
9 health of the mother, because Senator Padavan
10 was on a hot issue. The health of a mother is
11 such a loophole that you could drive a truck
12 through it. There's no question about that.
13 What kind of health are you talking about?
14 Mental health? Physical health? Everybody's got
15 some health problems.
16 This is a piece of legislation
17 that will pass this house. This is not neces
18 sarily a one-house bill. The people of this
19 state, and your constituents, are going to
20 demand that we do something about this barbaric
21 procedure. As I said earlier, it is a matter -
22 an issue of common decency.
23 How anyone -- anyone in this
4183
1 chamber can justify this procedure, it leaves me
2 cold. As this Nurse Shafer said at the
3 Conference -- this was a young woman who was
4 very pro-choice, working in an abortion clinic,
5 observed and I guess participated in this
6 procedure. She left the room and has devoted, I
7 would say, a significant amount of energy in her
8 life to seeing that this partial birth abortion
9 procedure is outlawed, and I applaud her for it.
10 I urge the passage of this bill
11 and I applaud the sponsor, and I'm confident and
12 hopeful that working together that we can make
13 sure that this procedure never takes place in
14 New York State.
15 THE PRESIDENT: Senator Cook.
16 SENATOR COOK: Thank you, Madam
17 President.
18 Senator Maltese, would you be
19 willing to yield to some questions, please?
20 THE PRESIDENT: Senator Maltese.
21 SENATOR COOK: Senator, I don't
22 have the benefit of a legal education, so I'm
23 going to ask you questions that really relate to
4184
1 the legal aspects of this bill because I know
2 you've been a prosecutor and you would
3 understand these things better than I do.
4 The first question I have is
5 that, as has been indicated, the words "partial
6 birth abortion" is not a word of art in the
7 field of medicine. You defined it in the law
8 then as "partially vaginally delivering a living
9 fetus" and you've indicated that the
10 preponderance, at least of the testimony that
11 you have, is that indeed the fetus is living at
12 the point -- at the point when, as you said, it
13 is then killed by the doctor.
14 There are at least some
15 physicians, however, who dispute that, as you've
16 also cited, even though you disagree with them.
17 You've cited that there are physicians who state
18 that. My question is, leaving this definition
19 in the law as it is without it being a word of
20 art in medicine, isn't that going to bog down
21 any kind of legal proceeding in a question of
22 fact as to at what point the death actually took
23 place? That is, since your definition says it
4185
1 has to be delivered before killing, isn't that
2 going to be a question of fact that people are
3 going to have to testify to before you can even
4 get to the point of deciding whether you've had
5 a partial birth abortion under this bill?
6 SENATOR MALTESE: Mr. President,
7 and my esteemed colleague, there's been a
8 reference made a number of times to our
9 inability in large -- to a large extent to cope
10 with the medical terminology and medical terms
11 and, like my colleagues who previously addressed
12 themselves to this issue, I don't pretend to
13 have any special medical knowledge.
14 I did, in the course of drafting
15 this legislation and in making it virtually
16 identical to the federal legislation, speak to a
17 number of physicians and obstetricians and
18 people in the medical field.
19 The terminology, "partial birth
20 abortion," was one that was copied exactly from
21 the federal legislation, but, quite frankly, the
22 same physicians, Dr. Haskell and others who
23 indicated that they had initiated and coined the
4186
1 first expression, the "D & E", the dilation and
2 evacuation, we now know, based on their
3 representations and their statements, that prior
4 to 1978, there was no such procedure, no such
5 procedure or medical procedure termed as such.
6 In 1979, apparently as an out
7 growth of the dilation and evacuation which was
8 to leave the fetus within the woman and pull it
9 out piece by piece, the doctor -- apparently Dr.
10 Haskell and Dr. McMahon came up with this
11 procedure which they named dilation and
12 extraction, "D & Ex".
13 So my view not as an attorney,
14 and I find many times that legislators or others
15 who are not attorneys indicate that they lack
16 the legal knowledge and acumen of lawyers, but
17 I've always found that the -- to the so-called
18 common man, the average attorney lacks a certain
19 amount of common sense.
20 In this case, I would hope that
21 we've used it. A partial birth abortion has
22 been very clearly defined within the four
23 corners of this legislation, in that it is
4187
1 termed, and it says, "As used in this section,
2 the term," quote, "'partial birth abortion',"
3 unquote, "means partially vaginally delivering
4 ***" so that would mean, that would preclude a
5 C-section, a living fetus, so that would have to
6 be a fetus that was extracted and living at the
7 time before killing the fetus, terminating its
8 life and stopping -- and this I discussed with
9 physicians and -
10 SENATOR COOK: Mr. President,
11 will the Senator yield?
12 SENATOR MALTESE: Yes.
13 SENATOR COOK: That's precisely
14 the point. Don't you have a question of fact
15 there then as to whether, in fact, if you're in
16 the middle of a prosecution, that that fetus was
17 delivered -- was living at the time of delivery?
18 I mean, haven't you created a question of fact
19 there that becomes the focal point of the whole
20 -- the whole trial because you haven't even
21 determined -- you have to determine whether a
22 crime has been committed, and you basically have
23 to find out whether the requirements of that
4188
1 definition have been met?
2 SENATOR MALTESE: Well, Mr.
3 President, that's true. At the same time as we
4 heard the procedure described both by Nurse
5 Shafer and by Dr. Haskell's description of the
6 procedure, and earlier today and yesterday by
7 other physicians, they apparently locate the
8 fetus by sonogram, and during the course of the
9 operation actually watch the fetus so that they
10 can get the, as they call them, "lower
11 extremities" and pull the baby out.
12 In the course of these sonograms,
13 I am told -- and I have only seen pictures and
14 not the sonogram itself -- I am told that you
15 can very vividly see the heart beating, so I -
16 and these are a permanent record that can be -
17 that can be available to anybody with dates and
18 times on the sonogram -- so presumably right up
19 to the moment of extraction, you can watch the
20 fetus travel the vaginal canal right to extrus
21 ion and see that it is in fact living, at least
22 in the case of a fetus that is in fact living
23 and, as Dr. Haskell indicated, is in fact in
4189
1 some two-thirds of the partial birth abortions
2 that he performs.
3 SENATOR COOK: O.K. The bill,
4 Senator -- if you will continue to yield.
5 SENATOR MALTESE: Yes.
6 ACTING PRESIDENT KUHL: Senator
7 Maltese, do you continue to yield?
8 SENATOR MALTESE: Yes.
9 ACTING PRESIDENT KUHL: Senator
10 continues to yield.
11 SENATOR COOK: -- creates the
12 title of the crime of "partial birth abortion."
13 Senator, I assume that, since it's a crime, the
14 district attorney basically has the
15 responsibility to prosecute the criminal?
16 SENATOR MALTESE: Yes, Mr.
17 President, he does.
18 SENATOR COOK: How does a
19 district attorney find out this crime has been
20 committed?
21 SENATOR MALTESE: Well, Mr.
22 President, it would be as in any other, a
23 question of fact. I assume someone either
4190
1 present in the operating room or someone aware
2 of it would bring it to the attention of a
3 district attorney and that there had been a
4 violation of law, in this case or in any
5 others.
6 SENATOR COOK: O.K. Senator,
7 you've been a former district attorney. Maybe
8 you can help me with this. We now have, say,
9 the nurse who has been present in the operating
10 room is a witness to this crime. The -- as I
11 understand it, the nurse would then call the
12 district attorney and say, "I was a witness when
13 a crime was committed, and an abortion was
14 performed on Mrs. X."
15 What does the district attorney
16 do then? He goes to the judge and he says: I
17 have reason to believe that a crime was
18 committed. I need to have access to Mrs. X'
19 hospital records so that, in fact, I have
20 information to present to the grand jury to show
21 that this abortion -- this crime was committed,
22 because I've got to present a bill, a part of
23 the cause here if the jury -- if the grand jury
4191
1 is going to indict someone I'm going to have to
2 present a medical record, presumably at least,
3 to show that this crime was committed so that
4 they can make a -- hand up an indictment.
5 Wouldn't that be the case?
6 SENATOR MALTESE: Mr. President,
7 you know, a district attorney has it within his
8 power to decide which cases to prosecute and
9 which cases not to prosecute, so I -- I assume
10 that, since this is a felony, he would make a
11 determination based on available facts and
12 decide what the evidence to present to a grand
13 jury and then he would at that point in time
14 depending on the grand jury's action -
15 SENATOR COOK: But wouldn't you
16 -- wouldn't you agree, Senator, that if you
17 were prosecuting -
18 ACTING PRESIDENT KUHL: Senator
19 Cook, are you asking Senator Maltese to answer
20 some more questions?
21 SENATOR COOK: Yes.
22 ACTING PRESIDENT KUHL: Senator
23 Maltese, do you yield?
4192
1 SENATOR MALTESE: Yes.
2 ACTING PRESIDENT KUHL: Senator
3 yields.
4 SENATOR COOK: Senator Maltese,
5 if you were the district attorney and you were
6 going to appear before the grand jury to ask for
7 an indictment, then at the very least you would
8 have to bring in a medical record to show that
9 the crime had been committed, which means that
10 you're going to, in some manner, have to get
11 access to the woman's medical record and you're
12 going to have to present that medical record to
13 the district attorney because you're going to
14 have to show in some manner that this crime
15 happened.
16 SENATOR MALTESE: Mr. President,
17 I -- with all due respect, Charlie -- Senator
18 Cook, I don't follow your conclusion. All these
19 questions are questions of fact that would be
20 determined by the district attorney and how he
21 assembles his proof is a matter of discretion to
22 the district attorney, so I -- I assume he would
23 use whatever sources at his disposal as to the
4193
1 people that were presented, the person who had
2 brought the matter to his attention, the
3 hospital records and whatever other information,
4 probably subpoena or request the appearance of
5 the physician, attending physicians, nurses and
6 the person -- the person herself who brought the
7 -- the person herself who underwent the
8 procedure.
9 SENATOR COOK: So that either
10 you're going to have to bring this woman who's
11 had the abortion in to appear before the grand
12 jury or else you're going to have to bring her
13 medical records in to show that the abortion -
14 I -- I guess, Senator, what I'm trying to get at
15 is, through some credible evidence, as I
16 understand it, a grand jury is going to have to
17 have some indication that this crime took place,
18 and what I'm trying to get at is, wouldn't it be
19 at the minimum a necessity to provide the grand
20 jury with the medical record of the woman to
21 show that the crime happened?
22 SENATOR MALTESE: Mr. President,
23 yes, but you know, one of the questions that
4194
1 came up with reference to our speaking to
2 physicians and obstetricians in connection with
3 this statute, was what -- at what stage do -
4 does a physician perform a partial birth
5 abortion, and what was indicated to us is that
6 in all the early stages where the other
7 procedures that we've described took place, the
8 fetus was undeveloped, relatively undeveloped -
9 a mass of protoplasm, a mush as one doctor
10 described it -- and unable to reach this point
11 of gestation, but that somewhere around 17 or 18
12 weeks and then going toward 20 weeks, the skull
13 -- the calcification of the body and the skull
14 was such that the prior procedure which was so
15 ostensibly followed, the dilation and
16 evacuation, became much more difficult because
17 the instruments that were inserted did not have
18 the ease of being able to -- to break off
19 portions of the fetus' body and bring -- and
20 bring them out. So in this case, they had a
21 relatively solid head which would proceed only
22 with great difficulty after three days of
23 dilation through the birth canal, and there have
4195
1 been -- they felt that this procedure would only
2 be even possible after 20 weeks, so I think it
3 would be, as always, a question of fact and a
4 question of proof as to what the district
5 attorney would put into -- to evidence.
6 I can say after being there three
7 and a half years and in homicide that questions
8 of abortion or questions of birth or questions
9 relating to abortions and termination of life in
10 either infants or newborns, or miscarriages,
11 were areas that were tread into with great
12 reluctance. The average district attorney, like
13 most of us, was very reluctant to go into the
14 area because of the difficulty of securing
15 proof, the difficulty of securing medical
16 evidence and medical testimony and the
17 difficulty of ascertaining with specificity
18 exactly what had transpired.
19 SENATOR COOK: So that it's a
20 very difficult thing to establish as proof.
21 Now, Senator, let me, if I may, ask -
22 ACTING PRESIDENT KUHL: Senator
23 Maltese, you continue to yield? Senator
4196
1 continues to yield.
2 SENATOR COOK: Senator, I assume
3 if you were a district attorney, you wouldn't
4 want to go into a trial with a single count
5 indictment if you could avoid it. You probably
6 would want to, in effect, establish that there
7 had been a -- a pattern on the part of this
8 doctor to -- to perform these illegal
9 abortions.
10 How would you do that? Would you
11 then search his medical records to find out all
12 the women who had abortions and then go and
13 check their medical records to find out, in
14 fact, that they had abortions and then you would
15 present their medical records to the grand jury
16 so that they were able to hand up a multi-point,
17 several-count injunction -- or, I'm sorry,
18 indictment as opposed to a single count? Would
19 that be a reasonable way that you would proceed?
20 SENATOR MALTESE: Mr. President,
21 I think in -- with reference to this specific
22 proposed legislation, we have a situation as we
23 had in so many of the bills relating to abortion
4197
1 and right to life of any type, we, I believe,
2 would have almost immediately a test case. We
3 would have almost immediately doctors who would
4 come forward as doctors have in the past, or
5 abortion doctors, and confess or admit to
6 performing something totally within the -
7 within the statute that was not done to -- to
8 save the life of the mother, that was -- you
9 know, that was done purely electively and would
10 be within the four corners of the proposed
11 legislation.
12 So I don't know that you would
13 have any great difficulty at least in the first
14 few cases were you to decide to prosecute.
15 SENATOR COOK: So, in other words
16 -- Mr. President, if I may. So, in other
17 words, Senator, you're basically concluding a
18 doctor is going to confess that he committed the
19 act, but he's going to challenge it on
20 constitutional grounds; is that what you base it
21 on?
22 SENATOR MALTESE: That's what I
23 believe would happen. It's a matter of
4198
1 conjecture.
2 SENATOR COOK: Well, let's assume
3 -- Senator, let's assume that some doctor had
4 done this and it was determined to be
5 constitutional, and I just want to -- I want to
6 figure out how you go -- how you proceed in
7 prosecuting someone who has committed this crime
8 because it seems to me that you then have to
9 proceed from the point where you have gotten the
10 indictment.
11 You have a trial. Now, at that
12 point I would assume you have to call the
13 witnesses and that the most important witness
14 would be the woman who would have the abortion
15 because she is -- certainly has the most first
16 hand information, so probably when you get ready
17 to try this doctor for this crime, you're going
18 to have to put the woman who had the abortion on
19 the witness stand and establish the fact that,
20 in fact, she had the abortion. Would that be a
21 reasonable case?
22 SENATOR MALTESE: It would seem
23 to be a logical -- a logical situation that she
4199
1 would, in fact, having been present and having
2 the abortion performed, yes.
3 SENATOR COOK: So that -- Mr.
4 President, if the Senator continues to yield.
5 ACTING PRESIDENT KUHL: Senator
6 Maltese, you continue to yield?
7 SENATOR COOK: So that basically,
8 a woman goes to her doctor and she asks the
9 doctor to -- or she has a problem because we're
10 talking about a problem of abortion. She has an
11 abortion. She then is going to find herself on
12 a witness stand sharing with the whole world the
13 most intimate secrets about her health, about
14 what were the circumstances surrounding this
15 abortion because then, as I understand it, the
16 defense that the doctor would then make was that
17 it was a case of the imminent death of the woman
18 if the abortion weren't performed or, if Senator
19 Connor's amendment had been adopted, it would be
20 the question of the health, whatever that may
21 be, that all of these issues then become a
22 matter of conjecture in open court and the point
23 being, Senator, that you very thoughtfully said
4200
1 that the female on whom the partial birth
2 abortion has been performed may not be
3 prosecuted, so you very carefully now have given
4 the woman every -- taken away every excuse that
5 she would have for not testifying because she
6 now, since she can't self-incriminate, she now
7 has to go in and basically answer all sorts of
8 questions about her health, her life, her
9 abortion, in a public court in order to gain the
10 information that would be necessary to -- to
11 successfully prosecute the doctor for the crime
12 that he was -- that he's committed.
13 Would that be -- would that be
14 logical?
15 SENATOR MALTESE: Mr. President,
16 I don't know that anything that's done either by
17 judges or DAs or courts or members of this
18 Legislature are logical. At the same time, I
19 think we have an obligation to try to craft
20 legislation as best as we can to make certain
21 acts a crime and, as far as the district
22 attorneys, they have the sworn duty to try to
23 uphold the law and to prosecute miscreants and
4201
1 persons who violate the law.
2 I think that the difficulty of
3 prosecuting a case, one of the things that in -
4 in referring to juries on homicides, especially
5 homicides where you had no one else present but
6 the perpetrator and the victim, is you would say
7 sometimes to the jury that a homicide, in many
8 cases, is the toughest crime to prove because
9 the only person that -- if you kill the victim
10 and there's no one else present, the only person
11 that is present is the alleged perpetrator, and
12 his point of view is the only one that comes
13 across to a jury.
14 So I think here you have at least
15 additional witnesses. It's done usually quite
16 openly and notoriously, and I think that it's
17 just a matter of difficulty of proof. I don't
18 know that that should be the defining factor in
19 our adopting legislation of any kind, especially
20 legislation like this.
21 SENATOR COOK: Mr. President.
22 Thank you. Thank you, Senator Maltese. I want
23 to thank you for your courtesy as always.
4202
1 You've always been a gentleman, and I know that
2 you're very sincere in this -- in this bill.
3 The bill creates the crime of
4 illegally performing an abortion, and in name at
5 least the doctor is the one who is charged with
6 the crime and who will sit there as the
7 defendant in the trial; but the person who is
8 really on trial is the woman because she is
9 first going to have people rummaging around in
10 her private medical records in order to
11 establish that the crime occurred. She is going
12 to be on the witness stand where she is going to
13 have to testify that, in fact, she had the
14 abortion. She is going to be cross-examined to
15 determine that, in fact, there was a reason,
16 supposedly a justification, for having the
17 abortion. Her most private -- the most private
18 information about her life is going to be put on
19 trial in front of the whole world to see and,
20 Senator, if this were a measure which in some
21 manner would possibly make the abortion more
22 more humane or more desirable, perhaps that
23 would be one point; but the real point is that
4203
1 this does not do that.
2 This is a bill which victimizes
3 the woman by putting her on trial and, frankly,
4 by making her an object of public ridicule
5 because she had an abortion and, Senator, that
6 is not justifiable in my mind of anything that
7 we do.
8 I really think that abortions are
9 not pretty. I never liked the practice of
10 abortion and, frankly, I don't know in my own
11 family whether I would suggest that an abortion
12 take place or not. It would depend on the
13 circumstances; but, Senator, it is something
14 that, in very narrow circumstances, certain
15 people are confronted with and they really don't
16 have an awful lot of choice because of the
17 health issues involved, and they should not be
18 subjected to the possibility of having to answer
19 to that in a court of law.
20 And the second point that I would
21 say, Senator, is that if you have a situation in
22 which doctors know that they may be subject to a
23 criminal investigation if they perform the
4204
1 abortion in this particular manner, then they're
2 going to be -- then they're going to find other
3 means to do it, and which in some cases -- and I
4 would say it's probably a narrow bunch of cases
5 -- they're going to use some procedure which in
6 some cases may not be the safest procedure but
7 they're going to do it for their own self
8 protection because they don't want to be
9 involved in a criminal investigation.
10 And finally, Senator, I would
11 have to put this on the table and make it a
12 point of reality, and that is the fetus never
13 survives an abortion. There has been discussion
14 about at what point the life of the fetus is
15 terminated, be it in the womb, be it at
16 delivery, be it at what point, the fetus does
17 not survive the abortion.
18 The point, therefore, Senator,
19 has to be, what is going to be the policy of the
20 state of New York relative to the health of the
21 woman; and I think that anything that we do in
22 this house which takes away the option which the
23 woman and which her doctor and which her
4205
1 spiritual advisers, under the best consideration
2 that they can give, if they fail to have that
3 option available to them, I think we've done
4 them a grave disservice.
5 Thank you.
6 ACTING PRESIDENT KUHL: The Chair
7 would just like to remind the membership that
8 there are ten other members who have indicated
9 to us that they would like to speak on this
10 issue. In order, they are Senator Espada,
11 Senator Leichter, Senator Mendez, Senator Abate,
12 Senator Oppenheimer, Senator Dollinger, Senator
13 Marchi, Senator Lachman, Senator Waldon and
14 Senator Hoffmann. Also this debate started at
15 2:37. The rules allow for two-hour debate, as
16 you're all aware. The leadership, Senator Bruno,
17 Senator Connor, have allowed us to go a little
18 bit farther than that, but I would just remind
19 you that there are other people, colleagues, who
20 are waiting to speak when you take your turn.
21 Thank you.
22 Senator Espada.
23 SENATOR ESPADA: Thank you, Mr.
4206
1 President.
2 Actually it can be abridged
3 because I didn't think it possible somehow, and
4 apologies to the sponsor, that they would -- the
5 sponsor would be so thorough and really
6 compassionate and thoughtful in his presentation
7 so that part of my rebuttal is out the window,
8 thank God.
9 But this bill, with all due
10 respect to the sponsor, is medical malpractice
11 in the making. I mean we here in this chamber
12 as Senators are going to make medical decisions
13 without a license? There's something in the
14 codes of this state about that. Isn't that a
15 felony? Isn't that inappropriate?
16 And I share Senator Paterson's
17 views on the unseemly process that was used to
18 get the bill on the floor. The justification
19 for that seems to be that we have to rush to do
20 the right thing. To do the right thing coming
21 into May is to pass a budget. Where is the
22 priority and emphasis to that?
23 To do the right thing if you're
4207
1 interested infanticide, if you're interested in
2 the infant mortality and morbidity rates in my
3 district and in districts like mine throughout
4 this state, is to give a fair share allocation
5 to education, is to give a fair share allocation
6 to the health care resources that would indeed
7 prevent premature infant death and morbidity.
8 And so let's just cut to the
9 chase here. Doing the right thing in this
10 context is code language. It's code language for
11 putting a doctor in jail. It's code language
12 for splitting the trauma of a family that has to
13 undergo this kind of an experience, and I think
14 Senator Goodman put it in its proper
15 perspective. You have a couple here, a mom and
16 a dad, with six, seven, eight, sometimes nine
17 months waiting for a child, for a baby, for an
18 addition to their family, that might have
19 purchased a crib, that might have named that
20 baby, and now instead of aiding and assisting in
21 whatever way, through compassionate legislation
22 resources or just human empathy, we want to do
23 something, we would deal with that realities;
4208
1 but instead we reach down to a baser instinct
2 and we exploit the trauma and the tragedy.
3 And, you know, it's been rather
4 slick. This is a slick public relations
5 maneuver. Unlike the past where we carry the
6 fetus in the jar or we gag physicians and
7 prevent them from providing counseling on a
8 woman's reproductive rights or when we pick up
9 poor women and deny them the Medicaid-funded
10 abortion, this one focused in on a procedure, a
11 graphic and horrifying procedure, and so that
12 procedure has been the focal point. That
13 procedure has been the emphasis; but, you know,
14 you took greater license than that. You became
15 medical linguists and you introduced some new
16 words, "partial birth abortion," and you take
17 some poll results and you ask pro-choice or pro
18 life citizens in this state, How do you feel
19 about this procedure, and you get 71 percent.
20 You should have gotten a hundred percent,
21 because it is gruesome. So is a triple bypass
22 surgical procedure gruesome. It's not a matter
23 of electing to get one. It's a matter of medical
4209
1 necessity.
2 And so we are dealing with a
3 specific procedure, a specific procedure that
4 would be outlawed and, as Senator Cook outlined,
5 would criminalize the doctor, would expose the
6 woman, would take her right of privacy totally
7 -- totally away from her.
8 Now, how would you like it if
9 your daughter or your mother or your wife had to
10 make that critical decision at whatever point,
11 and the point is not clear, first trimester,
12 second trimester, violation of Constitution or
13 not, whatever span of time in that pregnancy you
14 visit the doctor, after the ultrasound, after
15 whatever diagnostic procedure, and they tell you
16 that the baby is without a spine, that the brain
17 is growing outside of the head, that the
18 toxicity in the mother, there's fluid building
19 up in the mother, her life is in danger.
20 I mean let's get real about
21 this. In that context, on whatever side you
22 come on here, consider the consequences because
23 this is real. This is real to Vicki Wilson.
4210
1 This is real to Miss Corinne Costello. This is
2 real to whatever the numbers are, 600 in the
3 nation, 3,000. Let's see, I don't know what the
4 real number is. I'd venture to guess that you
5 don't either, but the bottom line is there's a
6 reality out there that women and fathers and
7 families are put in, in rare circumstances where
8 they have to choose. They have to choose
9 between the mother and the child. They have to
10 choose between a safe procedure and a risky
11 procedure. You remove the safe procedure, the
12 D & E or the D & X, you remove that procedure,
13 you ban that procedure, and you force the woman
14 to choose a riskier option, one that would
15 compromise her health.
16 Well, why not do a C-section?
17 Why not talk about a less gruesome procedure?
18 Well, the law says that you don't have to deal
19 with that section. The law of the land says it
20 is illegal to deal in trade-offs. You can't do
21 it, and so, Mr. President, in the interests of
22 time, this is not an elective procedure. This
23 is a medical necessity.
4211
1 This is about family trauma.
2 This bill, although spartan in its writing, is
3 explosive in that it is intrusive. It is
4 potentially deadly. It is, without this
5 particular amendment that was offered,
6 unconstitutional and exploitative, no question.
7 Let me just end by reading from
8 Corinne Costello's testimony to the Judiciary
9 Committee of the United States Congress when she
10 says, "We are the families who wait to hold our
11 babies, to raise them, to love them, to nurture
12 them. We are the families who will forever have
13 a hole in our hearts. We are the families who
14 have to choose how our babies would die. Each
15 one of you should be grateful that you and your
16 families have not had to face such a choice. I
17 pray that no one you love ever does. Please put
18 a stop to this terrible bill," she asks them.
19 I ask you to do the same thing.
20 Thank you so much, Madam
21 President.
22 THE PRESIDENT: Thank you,
23 Senator Espada.
4212
1 Senator Leichter.
2 SENATOR LEICHTER: Madam
3 President, I think it's very clear when you look
4 at this bill and you listen to the debate, that
5 this bill is nothing else but an assault on Roe
6 vs. Wade and an assault on a woman's right to
7 have an abortion.
8 Now, let me say I have the
9 greatest respect for Senator Maltese, and I know
10 that he has very deeply felt religious morality
11 beliefs on this issue. Nobody questions your
12 sincerity or the sincerity of anybody else, and
13 Senator Bruno certainly has made his opposition
14 to abortion well known.
15 But this bill is a political
16 statement, sheer and simple, a political
17 statement. Why is it that, after all the years
18 that this procedure existed, in a presidential
19 year, a year of a presidential election,
20 suddenly we have a bill that, as Senator Bruno
21 says, No, this bill doesn't deal with abortion.
22 This bill deals with a procedure. Why is it
23 before us in the year 1996? And why, if the
4213
1 issue is a procedure and understanding it, why
2 don't we have hearings on it? Why not give the
3 medical communities an opportunity to be heard?
4 I have statements here from the
5 most respected and the most admired medical
6 associations and doctors explaining the
7 statement and saying that this is an intrusion
8 upon the practice of medicine. At the very
9 least, we should have had hearings. I think
10 this bill was important enough, if you think
11 that it is such an important policy statement,
12 that it should have gone through the regular
13 procedures of the Senate.
14 It should have been taken up by
15 the Codes Committee; we should have had
16 hearings. With all due respect to the work that
17 you've done, Senator Maltese, I just don't think
18 it is sufficient, and certainly doesn't satisfy
19 me, for you to read excerpts that you find in
20 doctors' statements that support your position.
21 I'd like to hear Dr. Haskell
22 testify, and you're a good enough lawyer to know
23 that that is the best evidence, not your reading
4214
1 excerpts and picking and choosing here and there
2 what you're going to read.
3 I think the Senate is stumbling
4 into an area where it is totally incompetent,
5 where it's totally uninformed. I don't see a
6 single doctor here. If we're dealing with a
7 medical procedure, I'd like to hear from the
8 doctors. I'd like to hear from the medical
9 profession, but I don't think that was the aim.
10 I think the aim is that you wanted to make this
11 end run around Roe vs. Wade. You are against
12 abortion, and you'll choose any opportunity that
13 you can to challenge it, even if it is blatantly
14 unconstitutional, as this bill is.
15 Senator Maltese, you made that
16 clear. You said that you're dealing with a
17 procedure which, as you stated, is used mainly
18 in the second trimester. What happened to the
19 statement of Roe vs. Wade that we are precluded
20 from interfering with a woman's right to choose
21 for herself in the first and second trimester?
22 And then the amendment of Senator
23 Connor which, frankly, I think was so narrowly
4215
1 drawn that I have some question whether it
2 actually satisfies the Supreme Court's opinion
3 and the Supreme Court's grant to a woman of the
4 right to make decisions in privacy; but the
5 Supreme Court certainly said that, in the third
6 trimester, states can act except where abortion
7 is necessary for the life or the health of the
8 mother, and you voted down an amendment which
9 conceivably -- I think conceivably -- frankly I
10 doubt it, but conceivably would have made this
11 bill constitutional.
12 THE PRESIDENT: Senator Bruno.
13 SENATOR BRUNO: Excuse me, Madam
14 President. Senator Leichter, excuse the
15 interruption, but we have a procedure here that
16 I'd like to accommodate Senator Paterson,
17 Senator Stavisky. They have some travel due to
18 a death in the family, and I'd like to ask that
19 we open the roll so that we could have two of
20 our members that have personal problems vote.
21 THE PRESIDENT: The Secretary
22 will read the last section.
23 THE SECRETARY: Section 3. This
4216
1 act shall take effect on the 1st day of
2 November.
3 THE PRESIDENT: Call the roll,
4 please.
5 (The Secretary called the roll. )
6 THE PRESIDENT: Senator
7 Paterson.
8 SENATOR PATERSON: I vote -- I
9 vote no, Madam President.
10 THE PRESIDENT: Senator
11 Stavisky.
12 SENATOR STAVISKY: May I be
13 recorded in the negative on the bill. Thank
14 you.
15 THE PRESIDENT: Withdraw the roll
16 call, please.
17 Senator Leichter, do you care to
18 continue?
19 SENATOR LEICHTER: Yes, Madam
20 President. Thank you. I've been asked to move
21 over to Senator Paterson's seat, and I will try
22 to finish very quickly, because I realize there
23 are others.
4217
1 I'm really concerned also that
2 that failure to hold a hearing and the way we're
3 proceeding and the disregard that we show for
4 constitutional mandates or for that matter for
5 our own laws of the state of New York that once
6 again we're belittling women; we're martyrizing
7 women.
8 I think Senator Cook made an
9 excellent point that you're really putting the
10 woman on trial here. I think again we see an
11 effort to undermine a woman's right to an
12 abortion, to scare doctors away from performing
13 abortions because they may face criminal action.
14 I really don't think, Senator
15 Maltese, with all due respect, that you
16 understand the procedure. Senator Farley got up
17 and I couldn't believe what he said. Senator
18 Farley said, how can you justify, and then he
19 goes ahead and justifies it. He said, Well,
20 there's two other procedures, the saline
21 procedure and the other procedure but, well,
22 those are harmful to the health of the woman.
23 Then he goes on blithely proposing that we ban
4218
1 the very procedure which might be necessary to
2 save the life of the mother or to -- or to
3 preserve her health.
4 I think that we're in an area
5 where we should not act. We're in an area where
6 we're precluded from acting, and we've acted in
7 total disregard of our rules and of our
8 procedures.
9 I will yield to Senator Farley.
10 THE PRESIDENT: Senator Farley.
11 SENATOR FARLEY: Thank you,
12 Senator Leichter.
13 Just on a point of personal
14 privilege. I truly believe that you kind of
15 misunderstood what I said. I said that one of
16 the doctors, at a press conference yesterday,
17 and I'd stand corrected that I was saying how
18 barbaric and gross this partial birth procedure
19 is that they use almost all the time when they
20 do it, because there were two other procedures
21 that could be used. He says, but it is not an
22 accepted procedure because it endangers the
23 mother and it doesn't always kill the baby, but
4219
1 they always use, theoretically, if I got that
2 correctly, Senator Maltese, this third barbaric
3 gross procedure. That's the one that they use
4 and I'm saying that, when we're talking about
5 that, that's what we should outlaw and that's
6 what this bill does, that says that this in
7 humane procedure would be outlawed. I certainly
8 wasn't blithely offering an alternative.
9 THE PRESIDENT: Senator
10 Leichter.
11 SENATOR LEICHTER: Well, Madam
12 President, Senator Farley, we'll get the
13 transcript tomorrow. We'll take a look at what
14 you said, and I think what you said happens to
15 be the case that there are instances where this
16 procedure may be decided on by medically trained
17 persons as a procedure which is necessary.
18 I just finally want to say that I
19 think once again here we find that certain
20 religious beliefs are sought to be imposed upon
21 all of society as public policy. I think you
22 can certainly be against abortion, you can rail
23 against it, you can criticize it, and so on, but
4220
1 I don't think you have the right to impose your
2 religious beliefs in this fashion, and you
3 certainly don't have a right to step between the
4 woman and her doctor and deny her the medical
5 procedure which might be necessary for her
6 health and for her life.
7 I regret very much that we're
8 taking up this bill in this fashion and in such
9 disregard of a woman's right and the
10 constitutional protection that a woman has.
11 THE PRESIDENT: Thank you,
12 Senator Leichter.
13 Senator Mendez.
14 SENATOR MENDEZ: Thank you, Madam
15 President.
16 I wonder if Senator Maltese would
17 yield for a question.
18 THE PRESIDENT: Senator Maltese.
19 SENATOR MALTESE: Pleased to.
20 SENATOR MENDEZ: Senator Maltese,
21 does your bill in any way -- in any way -- ban
22 abortions to the second trimester?
23 SENATOR MALTESE: Madam
4221
1 President, Senator Mendez, no.
2 SENATOR MENDEZ: Thank you.
3 Thank you.
4 I really, Madam President, have
5 to establish that because this issue is so
6 emotional that, when you see return from both
7 sides of the aisle and people then end up saying
8 things that are not factual and that will
9 complicate matters in terms of making a logical
10 decision about a problem that all of us are very
11 much concerned with.
12 So as the first thing that I want
13 to establish is, number one, I, Olga Mendez, the
14 State Senator from the 28th Senatorial District,
15 I am pro-choice. However, this kind of procedure
16 -- this kind of procedure -- there is no -- no
17 possibility that it should be allowed to stay.
18 It's been said that this denies a woman her
19 reproductive freedom.
20 Well, this is why I did ask
21 Senator Maltese if, in fact, banning -- if, in
22 fact, his bill passes this chamber, if in fact
23 it is going to intrude in what already the law
4222
1 of the land is, and that is that a woman has a
2 perfect right to have an abortion, to choose,
3 free choice to choose to have an abortion, but
4 the Supreme Court clearly stated 24 weeks -- 24
5 weeks, as long as the fetus or the baby -- and I
6 use both words because people are even so
7 finicky even about what you want to call that
8 entity that resides in a woman's uterus, so as
9 long as the fetus is viable.
10 Now, the Supreme Court also
11 stated that a human being becomes a legal person
12 once that human being is out of the birth canal.
13 It is fascinating to me that this horrendous
14 process, the entire baby or fetus is pulled out
15 alive but in the procedure they make certain
16 that the head of the baby stays in the birth
17 canal so that -- so that that person, that fetus
18 or baby, is just four-fifths away from being a
19 legal person.
20 So I don't think that there is -
21 I don't think that there is any justification at
22 all for maintaining this process. As I said,
23 this procedure, as I said before, it does not
4223
1 take one inch away from the gains made by women
2 in terms of free choice, doesn't take anything
3 away from women. Anybody who says so is just
4 residing in fantasy land.
5 Secondly, there are other methods
6 that are available, and this bill, Madam
7 President, this bill will not ban -- will not
8 ban the -- this procedure in cases whereby the
9 life of the mother is at stake, one. So -- so I
10 think that this horrible procedure is being
11 defended in many -- is being defended in many
12 rhetorical fashions because it is being related
13 to the presidential election, O.K. Because our
14 president, our wonderful president, vetoed that
15 bill, I think all the rest of the Democrats in
16 New York State feel that we must -- that we must
17 obliterate from our minds the -- the horrendous
18 part of this procedure, so that in that fashion
19 we are the best Democrats in the whole world
20 and, at the same time, my dear fellow
21 Republicans might feel, well, we're doing this,
22 maybe we can really give a one-two punch to
23 President Clinton.
4224
1 Those two political positions if,
2 in fact, they do explain the tremendous rhetoric
3 that's being used in this instance, in my mind
4 they are not worth it. What counts in my mind
5 is that we are a nation of civilized people.
6 We, the American people, are the most generous,
7 the most kind people in the whole planet earth,
8 and this procedure is so repulsive, so utterly
9 savage, that I lack -- Madam President, I lack
10 adjectives to describe this, and since in the
11 final analysis, as I said before, a woman's
12 right to choose is not being obliterated, you
13 know, if we keep it up -- and I was mentioning
14 this to some wonderful people -- maybe the day
15 will come when baby -- babies' tissues or
16 crippled tissues, baby's brain cells or fetal
17 cells could be a commodity on the street so that
18 they could be used to make beautiful cream to
19 keep us young and to put them to some other
20 supposedly good use.
21 Madam President -- Madam
22 President, this bill will not see the light of
23 day in the Assembly. I am sorry for that. I
4225
1 think the amendment -- yes, I voted for the
2 first amendment. On the other hand, we also
3 know that, because federal legislation and
4 federal policy takes over -- takes precedence
5 over state policies, this bill as is, it will be
6 women who need this horrendous process to stay
7 alive. They will have an opportunity to have it
8 and that's the way things are.
9 So I am supporting this bill,
10 Madam President, and I will vote yes.
11 THE PRESIDENT: Thank you,
12 Senator Mendez.
13 Senator Abate.
14 SENATOR ABATE: On the bill.
15 It was said by a number of my
16 colleagues that this issue is a simple issue,
17 that it's an issue of the difference between
18 right and wrong, and it's an issue of common
19 decency and humanity.
20 I wish it were so simple. I
21 don't believe this is an issue that's simple for
22 either side. If you look in the rafters, there
23 are people that are advocates from different
4226
1 religious organizations, from family planning,
2 women's organizations, where this issue is a
3 matter of conscience, where this issue is a very
4 emotional issue and on both sides, the advocates
5 strongly hold their positions. So no matter
6 what our individual opinions are in this issue,
7 we need to put those opinions aside and look at
8 what is the role of government and what is our
9 role as a lawmaker.
10 I hear over and over again here
11 in this chamber that the role of government has
12 become too intrusive, that we need less
13 government and more individual responsibility
14 and accountability and that government should
15 not intrude in the lives of people.
16 So the question is, and I believe
17 the fundamental question, who should be making
18 these medical decisions? Should they be law
19 makers? I, for one, don't really understand
20 even the medical terms being addressed today.
21 I, for one, am not equipped to say to a woman
22 that you should take one procedure and not
23 another and maybe as a consequence risk her
4227
1 health or her life or her ability to have
2 another child.
3 I believe the decisions should
4 remain in the medical profession, and we should
5 look at our history in the decisions we make. We
6 live in our diverse society. We live in a
7 society where there are many religions and
8 there's clearly no monolithic consensus around
9 when birth begins and when life begins, and out
10 of respect for the diversity in our society, out
11 of respect for people who are Roman Catholic,
12 for people who are Jewish or people who are
13 Protestants or Muslims or whatever one's
14 religious beliefs, out of respect, we in this
15 state and in this nation have said because we
16 respect everyone's opinions, we believe that a
17 woman should have the right to choose.
18 So if you are Roman Catholic and
19 you feel firmly that life begins upon
20 conception, no one will say to you that you
21 should have an abortion. On the other hand, if
22 you consult with your religious advisers and
23 people in your family and you feel that you -
4228
1 it's appropriate for you to have an abortion,
2 the law says that you can have one.
3 We're now talking about late
4 term abortions, and I think we would be doing a
5 disservice to women if we didn't interject in
6 this debate, and I'm glad Senator Cook began
7 that discussion, what does this impact and what
8 will it be on women because we can not talk
9 about this legislation until we really
10 understand who the women are that choose to have
11 these late-term abortions and what will the
12 impact on them be.
13 So we know from -- from
14 experience, the women who have undergone this
15 very rare and safe procedure have done it in a
16 very catastrophic health situation. They wanted
17 the pregnancy. They wanted to bring their
18 pregnancy to term. There are many cases where
19 the women even named their children. Their
20 nurseries were prepared. This was a human
21 tragedy for them when they learned from their
22 doctors that their health was in jeopardy, that
23 their life would be risked, they could no longer
4229
1 have children if they brought the pregnancy to
2 full term.
3 I'd like to read the words of
4 Corinne Costello because I do not believe this
5 is based -- complete. I believe the debate is
6 hollow if we do not have a woman's voice in this
7 chamber who can say, this is wrong, that you are
8 irreversibly affecting the life and the
9 decisions of me and my family.
10 So let me just read, and I
11 probably will go on longer than I should today,
12 but I feel very strongly about this issue as a
13 mother and also as a lawmaker.
14 Corinne Costello says: "But
15 disaster struck me in my seventh month.
16 Ultrasound testing showed that something was
17 terribly wrong with my baby. Because of a
18 lethal neurological and muscular disease, her
19 body had stiffened up inside my uterus. She
20 hadn't moved for several months and she was
21 unable -- her lungs had been unable to stretch
22 to prepare them for life. Our doctors told us
23 that Catherine Grace could not survive and that
4230
1 her condition made giving birth dangerous for
2 me, possibly even life-threatening.
3 "Because she could not absorb
4 amniotic fluid, it had gathered in my uterus to
5 such a dangerous level that I weighed as much as
6 if I were at full term. I carried my daughter
7 for two more agonizing weeks. I couldn't save
8 her life. How could I spare her pain? How could
9 I make her passing peaceful and dignified?
10 "At first, I wanted the doctors
11 to induce labor, but they told me that Catherine
12 was wedged so tightly in my pelvis there was a
13 good chance my uterus would rupture and my life
14 would be put in danger and if not my life, my
15 health."
16 So she goes on and on and talks
17 about the procedure, and then she ends and says,
18 "I still have mixed feelings about abortion,
19 but I have no mixed feelings about legislation
20 that would altogether ban late-term abortions.
21 Senator after Senator --" this is her exact
22 words -- "talked about the procedure I under
23 went as if they had seen one, and Senator after
4231
1 Senator got it wrong. Catherine was not
2 cavalierly pulled halfway out and stabbed with
3 scissors, as some Senators described, in the
4 process," and before that she described a needle
5 that was used to remove fluid from the baby's
6 head so that the fetus could be pulled through
7 the cervix. "I had one of the safest, gentlest,
8 compassionate ways of ending a pregnancy that
9 had no hope. I will probably never have to go
10 through such an ordeal again, but other women,
11 other families who receive devastating news and
12 have to make decisions like mine," and she says
13 lawmakers have no place in our tragedies.
14 I give the voice of Corinne
15 Costello because there are other Corinne
16 Costellos that have had this procedure and
17 others will be similarly faced with these
18 tragedies and, as someone said, I don't know
19 whether Senator Espada, whether it's our mothers
20 or our daughters or our cousins or our loved
21 ones, let's treat them with respect and dignity,
22 let's ensure that their health is not
23 jeopardized, and make sure that we act as law
4232
1 makers, not as physicians.
2 I go back to the fundamental
3 issue: Why are we discussing this bill? Are
4 there numerous abortions, late-term abortions
5 occurring in New York State as described by
6 Senator Maltese? By all accounts, and I made a
7 number of phone calls, talked to a number of
8 physicians, there are estimates of a handful of
9 abortions such as these which I'm describing as
10 late-term abortions in New York State.
11 And why is that? It's because we
12 already have a law that clearly defines when
13 third trimester abortions are appropriate. It's
14 one of the most restrictive laws in the country,
15 and I would dare say that it's probably
16 unconstitutional. It was passed before Roe v.
17 Wade. It just carves out a -- an exception for
18 preserving the life of the mother, and there's a
19 reason why there are very few late-term
20 abortions, because it's already illegal except
21 for this carved-out exception in New York
22 State.
23 The abortions are not occurring
4233
1 in New York State. Women who want these
2 abortions and are pregnant don't have them in
3 New York State. They leave the state. So I have
4 to say, why are we doing this? And I suspect
5 we're doing this because there are many people
6 who do not like the fundamental right of women
7 to choose, and this is an opportunity because
8 the way the proposed legislation is drafted,
9 it's very broad and and it's very vague, that it
10 will in fact erode the woman's right to choose.
11 And why I say it's vague because
12 it talks about partial birth abortions and yet
13 there's no medical terminology that defines it.
14 Are we talking about D & Es or D & Xs? It also
15 does not determine, as Senator Maltese sincerely
16 stated -- it does not restrict abortions to the
17 third trimester. We're talking about first and
18 second trimester cases.
19 So this bill, as has been stated
20 by my colleagues, raises serious legal and
21 constitutional issues. It is also saying to a
22 doctor that we of the Legislature know better
23 than he or she and that we will determine what
4234
1 procedures are safe and what procedures are
2 available to women, and we will be saying to a
3 woman, you must of a hysterotomy and not have
4 maybe a D & E because we in the Legislature have
5 decided that hysterotomies are safer, and
6 hysterotomies are the abortion procedure where
7 there is a cut, a caesarean cut, that is longi
8 tudinal, and studies have shown and medical
9 testimony supports that this presents an
10 enormous risk to the health of a mother,
11 jeopardizes the woman's ability to have children
12 in the future because there is a greater
13 likelihood of perforating the uterus. But do we
14 have the knowledge and expertise in this chamber
15 to say which procedure under what situations
16 should be available to women? I think not.
17 And we've heard over and over
18 again that this proposed legislation is
19 unconstitutional because under Roe v. Wade and
20 Planned Parenthood v. Casey, the courts were
21 very clear that there was not sufficient to
22 create an exception of just preserving a life of
23 a mother, that constitutionally any law that
4235
1 sought to ban abortions in the third trimester
2 must include the exception of preserving the
3 health and avoiding severe health consequences
4 for the mother.
5 So the Supreme Court has said, a
6 state may not ban an abortion necessary to
7 preserve a woman's life or health and the
8 Supreme Court said that the woman cannot be put
9 in a trade-off, that an undue burden would be
10 placed on her if she had to choose between her
11 life and health and that of a potential fetus
12 life.
13 So what are we doing here? If we
14 know it's unconstitutional and we know that, if
15 we were to pass this bill, because I don't
16 believe in the semantics that it's a one-house
17 bill. This is a bill that may not pass this
18 year, but we may hear about this bill again, and
19 clearly if this ever passed it would be enjoined
20 in the court, and right now under the law of the
21 land it would be held unconstitutional.
22 So maybe what are we doing? Are
23 we sending a chilling effect on doctors that,
4236
1 whether the late-term abortion or a first or
2 second trimester abortion, are we saying to
3 doctors in this state, without a fair under
4 standing what procedures are available, without
5 giving doctors a fair warning, we're saying, You
6 better stay away from abortions, because even if
7 you don't have criminal intent, even though
8 you're not sure what a partial birth abortion
9 means, and even though you believe you're doing
10 it to preserve a woman's life, you may be
11 indicted and may be prosecuted and put in
12 prison.
13 So what we are doing is eroding a
14 woman's fundamental right to choose and what
15 this bill does not do because in our naivete,
16 the women who are going to consult with their
17 priests and their ministers and their rabbis,
18 they will consult with their families, and they
19 will decide that they want to seek these
20 abortions.
21 Do you think by passing this
22 legislation that women will say they won't get
23 an abortion? They will get an abortion. What
4237
1 we are forcing women to do is to go underground
2 to seek unsafe abortions, to risk their lives or
3 to go out of state to get their abortions.
4 This bill will not discourage.
5 Unfortunately, what the bill does, it will
6 discourage qualified doctors from performing
7 abortions or force women to jeopardize their
8 health or force women to face riskier late step,
9 less safe procedures in order to satisfy our
10 misguided intentions.
11 I believe this is going to
12 present an unprecedented intrusion into medical
13 decision making. We're furthering the pain and
14 tragedy that so many women may have to face in
15 the future. This is a rare procedure. We're
16 talking about maybe 400 cases in the country,
17 maybe a handful of cases in New York State.
18 I agree with my colleagues that
19 the legislation is more about effective public
20 relations. None of this public relations will
21 make this bill constitutional. Nothing
22 addresses sound public health policy, and I
23 would just like to end -- in conclusion, to end
4238
1 in taking a look at a Long Island newspaper
2 which had an editorial. I think it really sums
3 up the debate today, and the title of that
4 editorial is, "There's No Good Reason for the
5 Maltese Abortion Bill," and let me just read a
6 few of the lines:
7 "To compound the insult, the
8 state lawmakers seek to address a problem that
9 doesn't exist in New York State. New York
10 already bans abortions after 24 weeks except to
11 save a mother's life, and after 20 weeks
12 gestation, the state requires a second doctor to
13 be present to provide medical attention to the
14 fetus even though fetuses are incapable of
15 survival at that point. These two restrictions,
16 both of them still on the books although they
17 are unconstitutional under Supreme Court
18 rulings, nonetheless make New York doctors
19 reluctant to perform any late-term abortions.
20 "Most New York women who find
21 themselves in the traumatic circumstances of
22 needing a late-term abortion because of fetal
23 abnormality or other health risks, travel out of
4239
1 state.
2 "In conclusion, these
3 circumstances make it patently clear that any
4 new state restriction would be hollow.
5 Injecting the idea in Albany's election year
6 debate is just another bit of political games
7 manship that will cause public and private
8 anguish."
9 ACTING PRESIDENT KUHL: The Chair
10 recognizes Senator Oppenheimer.
11 SENATOR OPPENHEIMER: Well, thank
12 you, Senator Abate, for making every point I was
13 about to make.
14 Let's see. I do want to speak to
15 something that was brought up by the Senator
16 prior to you, and I think we're going to really
17 have to focus in on this.
18 First of all, the numbers of this
19 procedure, 4/100ths of one percent. As we are
20 probably aware in this chamber, maybe not, I'll
21 tell you that 99 percent of all abortions take
22 place in the first six months of a woman's
23 pregnancy, and so in the last three months
4240
1 there's only one percent taking place and of
2 that one percent only 4/100ths are this
3 procedure.
4 There are, needless to say, other
5 procedures in the third trimester which are
6 principally used. This procedure is seldomly
7 used. And so why is this tragic procedure
8 used? And it's a very, very tragic and a
9 horrible procedure. So let's examine why this
10 procedure is used in 4/100ths of one percent of
11 those abortions done in the last trimester.
12 Basically it would -- it's
13 because either the woman's health is very, very
14 severely impacted or the fetus is simply not
15 viable. Usually the skull is, in one instance
16 and this is a prime instance, usual reason, the
17 -- the fetus or the baby would be hydrocephalic
18 and that means that the skull is very swollen
19 and there is no way to get this fetus out of the
20 -- the normal canal.
21 The -- also another common
22 instance is when the organs of the baby are
23 outside of the baby and this term that's been
4241
1 chosen, what do you call it? You call it a
2 partial birth abortion, that would seem to
3 suggest that there is a living baby that has
4 been partially delivered and then it's being
5 killed.
6 The fact of the matter is that it
7 is extremely unlikely, almost impossible, for
8 these babies to sustain life, so I think the
9 choice of language is, you know, certainly not
10 medical and certainly questionable.
11 The procedure and why it is
12 chosen is probably due to the fact that women
13 want to very much have this baby. If they can
14 not have this baby, then they want to be
15 reassured that they will be able to have other
16 babies, and I don't know how many of you were
17 here last week when this lovely young woman came
18 here from Georgia, and she was the perfect
19 instance. As soon as she had to have this baby
20 taken from her by this procedure, she
21 immediately went back to business of creating
22 another baby and she had that youngster with her
23 last week and the baby was perhaps a year old,
4242
1 and she says she's a strong -- this was -- this
2 couldn't have been staged. She said, "I'm a
3 strong Newtie supporter, but on this issue, I
4 can't agree with," and obviously she came from
5 Georgia.
6 But the -- the purpose is to
7 maintain the woman's reproductive health which
8 is as important as her general health, which is
9 as important as her mental health, but
10 principally this comes about because the baby
11 cannot be delivered without doing serious damage
12 to her and to the possible future children that
13 I'm sure she wants to have because she
14 desperately wanted to have this child; but we
15 must have the fetus come out of the woman
16 because if the fetus dies in the woman, there
17 are some very, very serious toxidity problems
18 that could indeed cause not only serious damage
19 but indeed death to the woman.
20 So that's the procedure, and why
21 the procedure is chosen in this infinitesimally
22 small percentage of trimester abortions which in
23 and of itself is a very tiny one percent of all
4243
1 the abortions that are done in our nation.
2 I'm trying to avoid reiterating
3 what Senator Abate has said. However, I must
4 reiterate that it is constitutionally protected
5 that the woman's health not be subjugated,
6 superseded by fetal survival. We must be very
7 concerned about the woman's health. Much of
8 this debate has only been about surviving of the
9 fetus which, in most people's opinions, would
10 not survive anyway, certainly would never need
11 -- leave the needle -- the neo-natal unit at
12 the hospital.
13 At any rate, I'll sum up by
14 saying that this really is an unprecedented
15 intrusion by government into medical decisions
16 that rightly belong with a family and the
17 medical provider to the family, the doctor. The
18 doctor under this bill would be barred from a
19 technique he thinks is safest for the woman and
20 for her future health and reproductive health,
21 and, you know, doctors should be doing the
22 medicine and then we should be doing -- doing
23 the government and budgets and as has already
4244
1 been suggested.
2 This woman that I talked with
3 last week and many other women that I have
4 spoken with about this procedure after they have
5 learned that their babies were severely
6 deformed, presented a very, very sad picture.
7 I've also met, as I said, with their children,
8 the babies of these mothers who were able,
9 because of this procedure, to have subsequent
10 children. These mothers wanted their children
11 very badly and they were advised by their
12 doctors that this procedure was the best method
13 of preserving their ability to try and have
14 future children.
15 I was very lucky, and I'll be
16 personal for a moment. I had four very healthy
17 babies, and I was not faced with a catastrophic
18 pregnancy. I don't know what I would have done
19 under these circumstances, but I do know that my
20 husband and I would have made our decision based
21 on the advice of our family doctor.
22 This bill takes that decision
23 about what to do in the face of these tragedies
4245
1 out of the hands of women and their families. I
2 don't believe I can or I should make this
3 decision for any woman. So I'm going to oppose
4 this bill so that I never have a woman come up
5 to me and tell me she can never have children
6 because I took that choice away from her.
7 I'll be voting no.
8 ACTING PRESIDENT KUHL: Chair
9 recognizes Senator Dollinger.
10 SENATOR DOLLINGER: Mr.
11 President, I have lots of questions about this
12 bill. Will Senator Maltese just yield to one?
13 ACTING PRESIDENT KUHL: Senator
14 Maltese, will you yield to a question from
15 Senator Dollinger?
16 SENATOR MALTESE: Yes.
17 ACTING PRESIDENT KUHL: Senator
18 yields.
19 SENATOR DOLLINGER: Senator, what
20 would happen if a woman was carrying twins and
21 her doctor said the only way that one of those
22 twins will survive is to partial birth abortion
23 the other twin? Under those circumstances,
4246
1 should the doctor who performs that procedure go
2 to jail?
3 SENATOR MALTESE: Mr. President,
4 despite the fact that over the last few weeks,
5 two weeks or so, I've been delving into all this
6 medical terminology and documents and speaking
7 to doctors, I don't know that I'm qualified to
8 answer that but in discussing some aspects of
9 the legislation and medical procedure with Dr.
10 SanFilippo yesterday, he seemed to indicate that
11 his procedure as such would not be used in a
12 case as described by Senator Dollinger.
13 He described a D & C -- not a
14 D & C, a C-section, indicating that in the
15 course of the C-section, the -- all the mother's
16 organs, and I assume that in addition to the
17 mother's organs, the other twin's could be
18 easily, whatever the medical purpose was, could
19 be easily accommodated, thus then closing up a
20 woman and letting the other child live to being
21 born.
22 SENATOR DOLLINGER: But again,
23 Mr. President, I -- if Senator Maltese will just
4247
1 continue to yield for a clarifying question.
2 ACTING PRESIDENT KUHL: Just one
3 more question, Senator Dollinger?
4 SENATOR DOLLINGER: Well, because
5 like a good prosecutor and a good lawyer,
6 Senator Maltese just gave me the toreador's robe
7 as I was approaching and, frankly, changed my
8 hypothetical and said, "I'm not going to answer
9 the question, Senator Dollinger. I don't feel
10 qualified and I don't want to yield."
11 ACTING PRESIDENT KUHL: Senator
12 Maltese, you want to yield to another question?
13 SENATOR MALTESE: I suppose.
14 ACTING PRESIDENT KUHL: Senator
15 Maltese yields.
16 SENATOR DOLLINGER: Suppose a
17 late-term abortion is the only way, and I said
18 let us assume a qualified person, an ob-gyn said
19 the only way to preserve the life of one of the
20 two children is to partially -- through partial
21 birth abortion remove one of the children.
22 Does that doctor -- is that
23 doctor guilty of a Class E felony?
4248
1 SENATOR MALTESE: Mr. President,
2 in seeking guidance on this, I asked my counsel
3 if she had an answer, and she said, Suppose my
4 grandmother's tires were yellow; would she be a
5 school bus?
6 I think -
7 SENATOR DOLLINGER: Well,
8 Senator, I think that's your whole problem with
9 regard to this. You said you weren't qualified
10 to deal with my hypothetical. I say this, and I
11 say it with all due respect, you deserve the
12 Butterfly McQueen award for proposing this bill
13 because, as we all know Butterfly McQueen is a
14 great star in the pop culture, an icon in enter
15 tainment, and we remember in "Gone with the
16 Wind" when she said, "Miss Scarlet, I don't know
17 nothin' about birthin' babies."
18 And I would suggest, Senator, and
19 unfortunately, those who are behind it "don't
20 know nothin' about birthin' babies." Why don't
21 you know nothing about birthing babies? Because
22 you haven't dealt with the question of multiple
23 births. You know, multiple births that rare
4249
1 occasion that happens, I don't know, once in a
2 thousand where there are twins or triplets and
3 yet there's no exception in this bill for
4 multiple births, and if, in fact, a mother goes
5 through the terribly difficult position of
6 saying, "O.K., I will decide to preserve the
7 life of one of my children by allowing the other
8 to be taken by partial birth abortion," for fear
9 that both of them will die, that doctor,
10 following the advice of the mother, following
11 the consent of the mother, is guilty of a Class
12 E felony to try to preserve one of those lives
13 that I've heard so many people say today is so
14 important.
15 I agree they're that important,
16 but in a multiple birth situation where one has
17 to be sacrificed to help the other, do you take
18 that choice away from the mother of the one
19 who's going to live?
20 Why do I raise that hypothetical?
21 Because this bill is absolutely, as Senator Cook
22 said, filled, replete with poor thinking.
23 Senator Cook's correct, women will be called to
4250
1 testify because they will be the only witness to
2 this crime. They will be subpoenaed in front of
3 grand juries, and I am telling you if this bill
4 some day becomes law, women will go to jail
5 because they will be subpoenaed to testify, they
6 will refuse to testify in front of grand juries
7 investigating Class E felonies, and a judge, in
8 response to a district attorney's motion, will
9 say, "I find you in contempt because you have
10 refused to testify against your physician," and
11 that judge will do what every good judge in the
12 state will do, he will say, "It's time to put
13 you in jail until you comply with the subpoena,"
14 and there will be a woman sitting behind bars
15 because she refuses to testify against her
16 physician.
17 Even worse -- even worse, this
18 bill will force women to relive this tragedy
19 innumerable times. They will have to testify in
20 front of grand juries. They'll have to testify
21 at trials or, worse, Senator Maltese, they will
22 suffer what I believe is the greatest indignity
23 of all, a tragedy that no one should have to
4251
1 bear, because what happens in these partial
2 birth abortions? The woman who came to me said
3 she held the baby in her arms, she had a funeral
4 service, she celebrates its birthday, but under
5 your bill the question is whether the fetus was
6 alive at the time of delivery.
7 I suggest there's only one good
8 way, Mr. Prosecutor, for you to find that out
9 before the baby's been buried and that's to
10 exhume the baby's remains, to bring it up out of
11 the grave, and to do an autopsy. So this mother
12 who has buried her child after this anguishing
13 decision will now be forced to have the child
14 brought out of the tomb so your prosecutors can
15 find out whether or not it was alive and a crime
16 was committed.
17 I suggest to you, you are going
18 to force women to replay this travesty again and
19 again and again and again and again, and the
20 public ridicule that Senator Cook talked about
21 will be visited on them again and again and
22 again and again.
23 This is all about war on women.
4252
1 This is all about embarrassing women into not
2 exercising their constitutional choices. What
3 else happens under this bill? You know who else
4 is going to be involved here, and, Senator, to
5 show you how badly drafted your bill is, I find
6 it fascinating that your bill says that a female
7 cannot be charged with a crime under this
8 section. She can't be charged with a partial
9 birth abortion.
10 But what about the scheming
11 prosecutor who says, "I'm going to charge her
12 with assault. I'm going to charge her with
13 battery since she consented to the battery of
14 this child/fetus." What about child abuse or
15 neglect? "I'm going to charge her with
16 neglecting her child or abusing her child."
17 That's not protected by this bill. Some
18 prosecutor who wants to score points will charge
19 the woman with child abuse.
20 They may not be charged with
21 partial birth abortion, but they'll be charged
22 with something else, because they'll be a
23 criminal too. You'll make women who exercise
4253
1 these choices into criminals and will start
2 putting them in jail for exercising their
3 constitutional rights.
4 But more importantly, what is
5 this all about? Why does this bill come up at
6 this time of the year? Why do you quote Barbara
7 Shafer, who is now, of course, the poster child
8 for the partial birth abortion rules? She's
9 spoken gospel about what happens.
10 Paul Simon, United States Senator
11 from Illinois, after hearing her testimony,
12 wrote a letter to the Women's Medical Center in
13 Cincinnati, Ohio and said, Who is this woman? Is
14 she correct? You know what letter he got back?
15 He got a letter from the woman who runs the
16 ob-gyn service who is a registered nurse, who
17 said, We couldn't even find Barbara Shafer at
18 first. We had to look in our records. It turns
19 out she worked under another name. She worked
20 in our facility for three days, of course,
21 making her an expert at least in your point of
22 view, an expert on partial birth abortions. For
23 three days she worked there. The nurse who
4254
1 described Barbara Shafer's testimony said it's
2 largely inaccurate. First, she described Dr.
3 Haskell performing four 25-week and one 26-week
4 abortion procedures. Quote: "Dr. Haskell does
5 not perform abortions past 24 weeks of
6 pregnancy. This is a self-imposed limit to
7 which he has scrupulously adhered throughout the
8 time that I've worked for him." She worked for
9 him for three years.
10 "Secondly, Dr. Haskell," and
11 this is critical because Senator Maltese, as you
12 remember, made a big thing about the fact that
13 this nurse had observed the ultrasound and
14 movement and all these other things, this was
15 her description of this partial birth abortion,
16 hinging on her testimony about the ultrasound,
17 so you can perhaps appreciate this, Senator
18 Maltese, because I guarantee you, as a good
19 prosecutor, have gone through this a number of
20 times where you analyze someone's testimony and
21 then look at the facts and realize that there
22 was a huge variance in the two and that probably
23 made you as a good prosecutor enormously
4255
1 skeptical about the accuracy of their
2 observation or their rendition of the facts.
3 Nurse Shafer says, "I watched it on ultrasound."
4 Nurse in charge of the ob-gyn service says, "Dr.
5 Haskell does not use ultrasound in the
6 performance of second trimester abortions. We
7 use only -- only use ultrasound to determine the
8 pregnancy's gestation."
9 Therefore, Nurse Shafer's entire
10 description of her experience when viewing a
11 second trimester abortion, which includes Dr.
12 Haskell's using the ultrasound while doing the
13 procedure, is clearly questionable. This gospel
14 that comes on high from those who favor banning
15 partial birth abortion, the source is
16 questionable. It isn't even accurate. You're
17 counting on a witness who has been there three
18 days.
19 I ask you, Mr. Prosecutor, go in
20 to your courtroom. The real trial that we ought
21 to have is to put Nurse Shafer on trial, to put
22 the ob-gyns in this state on trial, to bring
23 them in here to testify so that we can find out
4256
1 what the truth is, so that when we enact these
2 bills we enact it on the basis of trust and not
3 on the basis of fiction, not on the basis of
4 television commercials, not on the basis of
5 inflammatory descriptions that are, by the
6 person who is in charge, declared to be clearly
7 questionable.
8 We're arguing about clearly
9 questionable things. Be glad to make the letter
10 available. Be glad to make Senator Simon's
11 letter available to the rest of his colleagues.
12 Mr. President, I'll conclude.
13 SENATOR VELELLA: Mr. President,
14 will Senator Dollinger suffer a brief
15 interruption?
16 SENATOR MALTESE: Senator
17 Dollinger yield for a question?
18 SENATOR VELELLA: One moment.
19 ACTING PRESIDENT KUHL: Senator
20 Velella, why do you rise?
21 SENATOR VELELLA: We have two
22 other Senators who, because of personal matters,
23 have to leave the chamber. I would ask that we
4257
1 briefly interrupt the proceedings and read the
2 last section so that Senator Stafford and
3 Senator Gold can cast their votes.
4 ACTING PRESIDENT KUHL: Secretary
5 will read the last section.
6 THE SECRETARY: Section 3. This
7 acted shall take effect on the 1st day of
8 November.
9 ACTING PRESIDENT KUHL: Call the
10 roll.
11 ACTING PRESIDENT KUHL: Senator
12 Gold.
13 SENATOR GOLD: In the negative.
14 ACTING PRESIDENT KUHL: Senator
15 Gold will be recorded in the negative.
16 SENATOR STAFFORD: Thank you, Mr.
17 President. Aye.
18 ACTING PRESIDENT KUHL: Senator
19 Stafford will be recorded in the affirmative.
20 The roll call is withdrawn.
21 Senator Dollinger to conclude.
22 SENATOR DOLLINGER: Thank you,
23 Mr. President.
4258
1 I will yield to Senator Maltese
2 when I'm finished.
3 ACTING PRESIDENT KUHL: He will
4 yield when he's finished.
5 On the bill.
6 SENATOR DOLLINGER: I have one
7 perhaps little technical point, and I would ask
8 Senator Maltese to address it when he sums up.
9 What happens to fathers in this
10 bill? This bill clearly says the woman can't be
11 prosecuted. What if a father like myself
12 consents to this procedure and observes this
13 procedure? I've consented to the destruction of
14 this life as you describe it.
15 Am I guilty as an accomplice
16 because I and my wife consented to this? Can a
17 father be charged with a partial birth abortion
18 or much worse, can a father be charged with
19 child abuse or child neglect because, as you
20 say, this fetus is alive and is entitled to
21 protections?
22 What happens to fathers, that
23 other indispensable element in the decisions
4259
1 about child creation and child rearing?
2 I'll close, Mr. President, with a
3 comment that I wish Senator Bruno were here
4 for. Senator Bruno talked about respecting
5 other people's choices, but I think we would be
6 remiss if we don't recognize that this issue
7 isn't about respect. This issue is about
8 television commercials. This issue is not about
9 respecting our choice. This issue is about
10 revving up the politics of this state so that
11 those of us who vote against this measure will
12 be accused of killing babies, we'll be accused
13 of killing infants. We'll be accused of
14 destroying life as we know it.
15 I know those commercials are
16 going to run, and I know that all those people
17 over on the other side of the aisle who say they
18 respect my choice, they won't lecture me on
19 respect in November. They're going to run
20 against Senator Oppenheimer; they're going to
21 run against me; they're going to run against
22 Senator Hoffmann, and they're going to run
23 against anyone else who votes and that they
4260
1 think they can beat, and I guarantee the one
2 word you won't hear in the television
3 commercials, We respect Senator Dollinger's
4 choice, but you know it kills babies. You know
5 it kills children. He respects all those other
6 things.
7 That's what this issue is really
8 all about. It's not about respect for other
9 people's choices. It's about the politics of
10 this state and how those who favor this bill
11 think they can whip up the politics of this
12 state for political gain. I've said it before;
13 I'll say it again, the one thing this chamber is
14 not good at is real political science. What we
15 are very good at is politicizing science and
16 that's what we do again here today. We take
17 science. We imbue it with politics and we end
18 up with really a bastardization and that's what
19 this bill is.
20 As Butterfly McQueen said, we
21 don't know nothin' about birthin' babies. You
22 know who does? Ob-gyns and the women they
23 serve. This choice is theirs and theirs alone.
4261
1 THE PRESIDENT: Senator Marchi.
2 SENATOR MARCHI: Thank you, Madam
3 President.
4 This issue, the issue of abortion
5 generally, was first posited by Hippocrates.
6 Hippocrates, 2400 years ago, Madam President,
7 formulated an oath that has been taken by every
8 physician virtually on the planet earth. He was
9 not Jewish; he was not Christian; he was not
10 Islamic. He swore by Apollo, but it was a noble
11 statement in the defense of life, and he spoke
12 very eloquently in that oath about defending
13 life at every stage -- man and woman, bonded and
14 slave. He said he knew no distinction, but the
15 doctor, in taking an oath of office as a
16 physician, was taking an oath to preserve life
17 -- the culture of life -- and that is plain and
18 simple and clear.
19 2400 years that principle stood,
20 and almost everybody in this chamber was
21 delivered by a physician who had taken that
22 oath. I don't know what they're doing now, but
23 they did take the oath at that time. Did they
4262
1 have their fingers crossed? "I didn't mean
2 it."
3 You younger people -- and I guess
4 the women here are younger people -- they were
5 delivered by doctors who came after the
6 redefinition, which was not constitutional
7 because it's noted in the Constitution of the
8 United States. It's a traditional opinion. We
9 know that the Supreme Court does not have stare
10 decisis. Otherwise Brown vs. The Board of
11 Education would not have overruled prior
12 holdings of the Supreme Court. The one man/one
13 vote, or the one person, if you will, one vote
14 would not have stood if stare decisis governed
15 the actions of the Supreme Court of the United
16 States, and indeed the Supreme Court of the
17 United States when they spoke on this subject
18 did have some reservations, Madam President, and
19 I quote from Roe v. Wade:
20 "With respect to the state's
21 important and legitimate interests in potential
22 life, the compelling point is viability." This
23 is because the fetus presumably has the
4263
1 capability of meaningful life outside the
2 mother's womb. "State regulation protective of
3 fetal life" -- I'm not quoting any ob-gyn
4 expert; I'm quoting Roe v. Wade -- "State
5 regulation protective of fetal life after
6 viability thus has both logical and biological
7 justification. If the state is interested in
8 protecting fetal life after viability, it may go
9 so far as to prescribe abortion." They go on to
10 say during that period "except when it is
11 necessary to preserve the life or health of the
12 mother."
13 What does this act say? When we
14 go to the present law, the submission of a
15 female to an abortional acted is justifiable
16 when she is under a reasonable belief that such
17 act is necessary to preserve her life or within
18 24 weeks from commencement of her pregnancy.
19 "To preserve her life," but that's not the
20 wording of the bill that was sponsored and
21 authored by Senator Maltese and backed by so
22 many of us.
23 It says here, "The provisions of
4264
1 this section shall not apply to a partial birth
2 abortion performed by a duly licensed physician
3 that is necessary to save the life of the
4 mother***". It doesn't stop there with a
5 period. It goes on to say, "*** whose life is
6 endangered by a physical disorder, illness or
7 injury where no other medical procedure would
8 suffice for that purpose."
9 That's not the whole statement.
10 The statement that Senator Maltese put in his
11 bill defines it all the way through. It is
12 solicitous about that, the potential threat to
13 that mother, not to say it doesn't stop when it
14 says the life of the mother. It goes on. And
15 don't we take notice of that?
16 We're at a perilous moment in
17 history. We see life taken so cavalierly around
18 the world. Really, I -- you know, I -- I've
19 also been on the other -- on the side of life on
20 the question of capital punishment. I am still
21 unalterably opposed to capital punishment, and I
22 will not condemn that district attorney up in
23 the Bronx because he was still wrestling with
4265
1 that problem.
2 But it doesn't change, the
3 culture of death is slowly making its way. We
4 had almost a half a million abortions last year
5 in the United States of America. In this state,
6 and in the city of New York, every other
7 conception ended up in abortion. Does that mean
8 that the -- the doctors were out there
9 struggling valiantly to preserve life?
10 Now, I will say this, that Roe v.
11 Wade, when it was passed, Senator Brydges was
12 seated right there where Senator Skelos is now.
13 He wept. He brought the bill out because he
14 felt that in the fullness of time it deserved
15 the full consideration of this chamber,
16 something which I don't feel that the Assembly
17 is going to do. But he was so troubled by it
18 that I actually saw him weep. It's the only
19 time in 40 years that I have seen a Senator weep
20 over the outcome of a bill that had been brought
21 out for general discussion. He was sorely
22 troubled.
23 I said, Well, we can't suffuse
4266
1 the process of democracy. It has to have an
2 audience, and that has been said. But this is
3 the -- this is the problem. The only thing the
4 Constitution -- we say about the Constitution.
5 You know, the only thing I can
6 find in the Constitution on persons is Article
7 I, Section 2 of the Constitution, Abolition:
8 Representatives and direct taxes shall be
9 apportioned among the several states which may
10 be included within this Union according to their
11 respective numbers, which shall be determined by
12 adding the whole number of free persons
13 including those who serve us for a term of years
14 and excluding Indians not taxed, three-fifths of
15 all other persons.
16 Slaves were considered three
17 fifths of a person. Now, some prelate,
18 commenting on what happened in -- with this
19 veto, said that this is a four-fifths, one-fifth
20 abortion and 80 percent infanticide. This is
21 what happens when you start playing the numbers
22 game. It's all right until you reach the
23 eyebrow or the nape of the neck.
4267
1 What kind of law is that? When we
2 have a half a million of them here in New York.
3 Is this another avenue now we're not defining, a
4 limitation which is implicit in Roe v. Wade? Roe
5 v. Wade wasn't that promiscuous. They did
6 establish some -- some guidelines from which
7 this dialogue could go on, but they defined a
8 terminus.
9 Where is the terminus now? This
10 is a starting point, throw away. Is life
11 sacred? Is the culture of death to triumph?
12 Madam President, it's -- you
13 know, I was watching a debate between Mr. Novak
14 and Bill Press, I believe, on Crossfire, and
15 Novak said it was a very deplorable, horrible
16 description of the process that had taken
17 place. Press said, Horrible and disgusting?
18 He said, If I had a hemorrhoid operation, a
19 hemorrhoid operation is horrible and disgust
20 ing. If I need it, I'll have it.
21 Now, this is not the attitude
22 that characterizes anybody in this chamber
23 because you did support a bill at least defining
4268
1 -- defining at least, hopefully, some kind of
2 circumscription of the practice.
3 But this is the response that he
4 had on a prominent station, and he's -- Bill
5 Press the left and Mr. Novak from the right
6 denouncing something that the general American
7 public is disgusted with, and it was shown and
8 supported so eloquently by the vote of the House
9 of Representatives who know their people.
10 They're closer to their people. They're not in
11 the ivory tower as the figures from the Senate
12 might have indicated.
13 So we've had -- we've had expert
14 opinion. The medical society who, their presence
15 has been invoked so frequently and with such
16 force and to some effect I assume, but they did
17 constitute a body to study this and to come out
18 with a recommendation and their recommendation
19 was unanimous. Not one, not one dissented.
20 So what did they do? They washed
21 their hands. I don't know what happened to it.
22 I believe somebody said they thought it was too
23 hot to handle. But unless we start talking
4269
1 about the culture of life, and the culture of
2 life goes further, you know, we can't wash our
3 hands, you know, even after they're born. We
4 have an obligation to these children, their
5 health, their education. These are the purposes
6 that we are here for. We haven't solved it by
7 giving them life unless we give meaning and
8 significance to that life and mustering our
9 substance to support them in fulfilling their
10 place on this planet.
11 This all goes to the respect that
12 we have for each other. When we see each other,
13 what do we see? When I look you in the eye, what
14 do I see? I see a person created in a divine
15 image, a valuable person, and they do not cease
16 being important even if they're mongoloid or
17 they have physical defects, or they have -- what
18 they have. They have life. They have life.
19 They commend our compassion. They commend our
20 help, and far be it from us to deny it.
21 This is a bill that -- that
22 really signifies -- gives us a starting point
23 from which we can -- we can at least look
4270
1 affirmatively at the question of life and we
2 have -- we have a lot of work for us, ahead of
3 us to the best of our ability to give it sense
4 and meaning, and every single member of this
5 house can do that, and you have done it in the
6 past and you give every evidence that you
7 continue to give it that emphasis.
8 But let us not encourage the
9 circumspection of even what Roe v. Wade says.
10 They would be insulted if they -- if they knew
11 what was going on now. I don't know how many of
12 them survive, but those that do survive at least
13 would understand that we at least understood
14 what they were defining and were trying to
15 implement it by a passage of this bill.
16 THE PRESIDENT: Thank you,
17 Senator Marchi.
18 Senator Waldon.
19 SENATOR WALDON: Thank you very
20 much, Madam President.
21 Would the learned gentleman from
22 Maspeth out in Queens County yield to a question
23 or two?
4271
1 THE PRESIDENT: Senator Waldon.
2 SENATOR MALTESE: Yes, I will.
3 SENATOR WALDON: Senator Maltese,
4 I was wondering whether in your deliberations
5 regarding this proposal, if you considered who
6 will pay for the doctor's defense, but even more
7 importantly than his or her defense, if they're
8 found guilty, not found guilty but if they are
9 in fact arrested and indicted as a result of
10 making a medical decision contraindicated by
11 this proposal, who will repair their reputation
12 after the arrest, after the indictment, after
13 the trial?
14 SENATOR MALTESE: Madam
15 President.
16 THE PRESIDENT: Senator Maltese.
17 SENATOR MALTESE: This is a -
18 this is a question that really is very difficult
19 to resolve or to answer. When we enter public
20 life, to a certain extent we expose ourselves to
21 a certain amount of criticism, some of it
22 perhaps not justified.
23 When a physician makes a decision
4272
1 that is truly a medical decision, appreciated
2 and endorsed by a majority of his profession, I
3 do not feel that he would ever be either
4 prosecuted, indicted or convicted for anything
5 certainly under this section. What we're
6 seeking to do is narrowly -- as narrowly as
7 possible, in a criminal statute, define the four
8 corners of this -- this crime if it is to be
9 committed.
10 What -- what the doctor -- what a
11 doctor who would perform this procedure which
12 has been criticized by a committee of the
13 American Medical Association unanimously which,
14 despite the fact that we must understand human
15 frailty and human nature, the American Medical
16 Association, when 25 of their leaders considered
17 this unanimous question, this unanimous decision
18 brought to them, they turned chicken. They
19 turned tail and decided to avoid the question
20 and say, We will take no position, despite the
21 fact that many of them, as Senator Marchi has
22 indicated, had taken the Hippocratic oath, so
23 when I answer your question, I say to you, if
4273
1 one result of our deliberations today, if one
2 result of bringing this law to the floor and
3 bringing this reprehensible procedure to the
4 public eye is that some physician or alleged
5 physician hesitates on performing this loathe
6 some procedure, then so be it, and I will -
7 will be most appreciative that that was perhaps
8 not the only desired effect of this legislation
9 but that it was a result of our proposed
10 legislation.
11 SENATOR WALDON: Madam President,
12 would the learned gentleman consider another
13 question?
14 SENATOR MALTESE: Yes, Madam
15 President.
16 SENATOR WALDON: Senator, as you
17 may know, I worked in the Office of Mental
18 Retardation and Developmental Disabilities as a
19 counsel to the New York City services group for
20 about 18 months, and during that time Judge
21 Barthell was conducting a federal trial in
22 Brooklyn, and we dealt with the Willowbrook
23 issue.
4274
1 As part of my responsibility in
2 that issue, I had to go to places like Flower
3 Fifth Avenue and to Willowbrook itself, and I
4 had occasion, unfortunately, in terms of my
5 psyche and my emotional state on certain days,
6 to all too often see the most severely retarded
7 and abnormal children existent and extant at
8 that moment in the state of New York.
9 Let's create a hypothetical. As
10 a result of that information, let me share this
11 hypothetical with you. If the child -- if the
12 decision in regard to the fetus is to go to full
13 term and these severely abnormal children, some
14 as characterized in statements made here, with
15 their brains outside of the body, with their
16 organs outside of the body, so severely retarded
17 for various and sundry reasons that they will
18 never ever have or there will never ever be any
19 expectation of anything resembling even severely
20 retarded state of life, who will pay for them
21 and under what circumstances will they be
22 maintained?
23 THE PRESIDENT: Senator Maltese.
4275
1 SENATOR MALTESE: Madam
2 President, to have a direct reply to the
3 question, I assume the state will fulfill -- if
4 the parents or the responsible parties are not
5 able to, do not have the resources, the state
6 will pay for it, will pay for their upkeep and
7 perhaps the rest of their lives.
8 But, Madam President, earlier
9 today I spoke of Dr. Stephanie Rifkinson, the
10 pediatric neurosurgeon. In her description, she
11 referred to hydrocephalus, and which was the
12 abnormal accumulation of water in the brain.
13 She indicated that many physicians and many
14 people in the medical field, instead of sitting
15 down with their patients and explaining to them
16 the possibility and in some cases the proba
17 bility of that fetus attaining the expectation
18 of a normal life, they took kind of the easy way
19 out and indicated that an abortion was the
20 procedure.
21 Now, this -- and the specific
22 medical condition referred to by my learned
23 colleague, and this is phonetic, encephalocele
4276
1 of the brain, one where the brain protrudes
2 through, in that case she indicated that it can
3 have a good prognosis and can survive.
4 Now, we're dependent to a large
5 degree on medical, not in this case, testimony
6 although we do have available much of the
7 testimony that was given at the Senate and the
8 Congressional hearings. But we have to rely on
9 what physicians tell us. I realize that like
10 differences among lawyers, there are differences
11 among physicians and differences among doctors.
12 At the same time, I don't condemn
13 the women who in these cases are driven to such
14 dire lengths. We do not -- that's evident in
15 the law. What we have are very, very pitiful
16 situations. There's no doubt they are very
17 difficult decisions of conscience. I -- we
18 haven't taken a position on the women. What we
19 are trying to do is ban a reprehensible
20 procedure, ban a procedure and stop a procedure
21 that takes away from our humanity. This is what
22 we're attempting to do.
23 The -- the situation as described
4277
1 by Senator Waldon, obviously a society has to be
2 responsible for those who are in circumstances
3 that they have to be assisted. I don't put only
4 the people that are in the institutions that
5 Senator Waldon observed. I put the -- this
6 unborn fetus in the same situation, the baby who
7 is nine-tenths or seven-eighths extruded from
8 the mother's vaginal canal, I put that baby, who
9 is more helpless than that baby who is totally
10 dependent on the outside world for existence
11 where heretofore it was dependent on the
12 mother's sustenance and in a protected
13 environment.
14 What a terrible, terrible thing
15 that we should spend so long now, so many hours
16 discussing what is or should be apparent I think
17 to -- with common sense, to any individual,
18 whether he has a law degree, a doctor's degree
19 or anything else. Obviously the majority of the
20 populace or the majority of the people as
21 evidenced by the fact we're in this situation as
22 described to them indicated that they were
23 opposed not to abortion which divides pretty
4278
1 much 50/50, I believe, but there were over 70
2 percent, I believe, that said that this
3 situation, this procedure, was repugnant,
4 repulsive and should not be condoned.
5 THE PRESIDENT: Senator Waldon.
6 SENATOR WALDON: Thank you,
7 Senator Maltese. I appreciate your patience in
8 response to my questions.
9 Madam President, on the bill.
10 First, let me apologize to the people in the
11 gallery because you came here today under false
12 pretenses, not your false pretenses, but I think
13 you were told and the information was
14 assimilated to you, if you came here, you would
15 see a real debate on real issues with the real
16 possibility of change in terms of your
17 apprehension regarding the abortion issue.
18 Obviously, that did not happen. It could not
19 happen. It was not in the cards.
20 Secondly, let me apologize to you
21 because what we really should have been about
22 during these long hours today is dealing with
23 the more important -- let me retract that -
4279
1 with the issue which is driving why we're here
2 all together as legislators, and that is the
3 budget of the state of New York. This
4 obfuscated -- obfuscated our real mandate, which
5 is to put the government of New York State in
6 order. We cloud it with this issue.
7 What we should have been doing
8 today, yesterday and tomorrow -- we bought time
9 as a legislative body, so you are not happy
10 because the result that you had hoped for could
11 not possibly happen today.
12 I am not happy because the
13 business of the state of New York, though this
14 is in part the business, has been dealt a
15 slowing hand. We were now -- let me apologize.
16 We now have taken another day not to do what we
17 should have been mandated to do.
18 This is a very difficult issue.
19 The decisions about life and death are always
20 difficult. When I look at my upbringing in the
21 church of God in Christ -- cogent -- it is very
22 difficult to deal with these issues, but I'm not
23 God. I'm not even a demigod and -- nor do I
4280
1 pretend to be such. So I find myself inadequate
2 to truly deal with this issue in terms of some
3 heavenly persuasion, and so I rely on the
4 persuasion that 40 years of public life, which
5 include the time that I was in the U.S. Army,
6 has given me to that date, and all that I've
7 learned in government tells me that if I
8 recognize the issue and deal with the issue as
9 best as -- as best as I can, I've done my job.
10 This issue is one that is
11 extremely complex and requires two people to be
12 involved, in my opinion, besides God -- you want
13 to call him Yahweh; you want to call him Christ,
14 whatever you wish to call your God -- and that's
15 the mother of your child and her doctor.
16 I'm not adequate to make
17 decisions that doctors make. I don't have the
18 training. I do not have the training, so I
19 defer to the doctors. Our Constitution says
20 that in regards to these issues, we should defer
21 to the doctors. The laws on the books of the
22 state of New York as we speak say that we should
23 defer to the doctors, and yet with this bill,
4281
1 we're trying to amend the Constitution, if you
2 will, of the United States and the state
3 inappropriately.
4 Lastly, women, in my opinion, are
5 God's greatest gift to this world. Women are
6 the greatest gift that the Almighty has given
7 us. Look in the chamber. Not only do we have
8 lovely ladies serving in the chamber, they are
9 bright; many of them are keeping many situations
10 going at the same time. They are mothers. They
11 are professional women. They are wives. They
12 are professional lawyers. They are
13 legislators. They are caring, sharing, loving
14 human beings, and why would I presuppose or
15 suppose that, as a male, I can make a decision
16 that is, in my opinion, in the world and in the
17 realm of women, that only a woman should be able
18 to decide what is right and what is wrong in
19 regard to the life that she creates within her
20 body.
21 So for three reasons, I have to
22 oppose my learned colleague. One, I am not God
23 and can't make heavenly decisions. Two, I am
4282
1 not a doctor and not adequately prepared to deal
2 with the problems, complex as they are,
3 regarding abortion and other medical issues, and
4 three, perhaps the most important of all, I do
5 not have the genius, the inclination, the
6 caring, the sharing, the loving capacity that a
7 mother has in regard to the fetus that she's
8 carrying.
9 Only a mother can determine what
10 she will do with this fetus, and I don't think
11 it's an easy decision. The women are not happy
12 to abort these children. This is not a happy
13 experience, but it is their decision. We are in
14 violation of their area. We, as men, most of us
15 older men, older men beyond the time when we
16 should be making babies are making decisions for
17 these women about their babies. I think it is
18 an abomination. I encourage you to recognize
19 the righteousness and right of the women and say
20 no to this legislative proposal.
21 I thank you, Madam President.
22 THE PRESIDENT: Thank you,
23 Senator Waldon.
4283
1 Senator Hoffmann.
2 SENATOR HOFFMANN: Madam
3 President, I believe I'm the last speaker.
4 THE PRESIDENT: Yes, you are.
5 SENATOR HOFFMANN: Thank you,
6 Madam President.
7 I think that's kind of fitting
8 because I think I was the first speaker last
9 week when this issue appeared before us, and
10 what a short and action-packed time we have
11 had.
12 Isn't it rather incredible that
13 an issue this momentous only emerged one short
14 week ago and now we are in the process of voting
15 on it? Something as momentous as the
16 reproductive health of every woman in the state
17 of New York has come up, and it was just a week
18 ago -- it was Tuesday of last week that we heard
19 some time -- well, a little less than -- it was
20 before 7:00 o'clock. It was around 6:00 o'clock
21 -- between 4:30 and 6:00 o'clock, we found out
22 that a report was coming from the Rules
23 Committee and it would be reported to the
4284
1 calendar for a vote the following day -- the
2 following day, ladies and gentlemen. I just
3 want to remind everybody that that was the
4 process that we had.
5 How unlike this chamber when
6 studying a serious issue to rush something to
7 the floor in that manner, and why would any
8 matter as significant as reproductive health,
9 called sometimes "late-term abortion", called by
10 those who would sensationalize and distort it,
11 "partial birth abortion", how is it that that
12 could come up for our vote in 24 hours or even
13 one week?
14 I am reminded that in this same
15 chamber we have colleagues who have chaired
16 committees and held numerous hearings on
17 important issues. I would like to compliment
18 Senator Tully during the years that he chaired
19 the Health Committee and how I wished that the
20 Health Committee had heard this issue.
21 This issue did not come before
22 the Health Committee, which presumably would
23 have some jurisdiction, some interest, maybe
4285
1 some expertise. No, it didn't go before the
2 Health Committee. It didn't go before the Codes
3 Committee, which routinely analyzes this type of
4 legislation. It came through the Rules
5 Committee. That is the shortcut to get
6 something to the floor as quickly as possible.
7 The quick and dirty route to
8 passing laws in New York State, ladies and
9 gentlemen, is to rush it through the Rules
10 Committee, and that's how this measure came to
11 our attention.
12 Senator Tully, when he chaired
13 the Health Committee, held a series of hearings
14 or symposiums, I believe they were called, on
15 breast cancer. This Senate and the Assembly
16 held hearings all over the state of New York
17 about the urgent concerns dealing with the
18 tremendous proliferation of breast cancer in
19 women in this state.
20 We're willing as a body, as a
21 legislative body, to give thorough and careful
22 study and hold public hearings and allow medical
23 testimony about women's breasts but not their
4286
1 uteruses. What a disgrace. How can we explain
2 that we have a bill before us that does not even
3 have sound, medical terminology in it?
4 I have correspondence from a
5 number of physicians, most of whom we only
6 contacted recently because it's only been one
7 week since this occurred.
8 From a physician in Oneida, in my
9 district, Dr. Cooley writes: "Almost always,
10 the fetus will have a zero-zero Apgar score at
11 one and five minutes, respectively." That means
12 no life. No life. I remember what an Apgar
13 test was. I remember the whole Apgar rating
14 when I had my children and how important that
15 was. A zero Apgar means no life. These are not
16 viable lives, and this is not a personal option
17 out of some convenience. This becomes a medical
18 necessity.
19 As Senator Abate read a little
20 while ago, an eloquent, a passionate and a
21 heartbreaking letter, and I heard her voice
22 crack. She was tough, but my eyes welled up
23 when I read it. This letter which was reprinted
4287
1 in the New York Times back in November described
2 in the first person a young woman who had gone
3 through this horrible procedure. She didn't
4 want to go through this procedure. She wanted
5 to have a baby, and when she was told that the
6 baby she was carrying had died within her, had
7 no viable life, could not be delivered normally
8 and her own life was at risk, she had no
9 alternative. It was the medical judgment of her
10 doctor and this woman that this was the only way
11 it could work. In fact, she postponed for two
12 weeks the inevitability of this process, but she
13 had the courage to write and tell how it
14 happened and then to admonish lawmakers to
15 please not interfere with other women who might
16 find themselves in the same position that she
17 was in.
18 The physician in Oneida who
19 writes to me says that the article by Susan
20 Fields, a columnist who wrote an article last
21 week on this issue characterizing it as the
22 partial birth abortion and describing in the
23 same gory details we heard from Senator Maltese
4288
1 earlier, the scissors maneuver, says that the
2 article by Susan Fields is absolutely ludicrous
3 and the terminology used does not explain the
4 procedure at all.
5 I would take the word of the
6 obstetrician/gynecologist group in Oneida, New
7 York with -- for whom I have great respect, over
8 some nameless and difficult-to-quantify
9 individual who is on a crusade to ban all
10 abortions and has targeted this as one place to
11 start and cleverly utilized the most
12 sensationalistic language to try to detract
13 people from the real purpose, which is to
14 eliminate freedom of choice for women in this
15 state.
16 The American Nurses Association
17 has something to say about this. I found it
18 interesting that we have a nurse quoted in
19 Senator Maltese's information, who we now know
20 was not, in fact, in the capacity she claimed to
21 be, did not function in the procedures that she
22 said she was at because others who worked in
23 that same clinic have refuted her.
4289
1 Senator Dollinger did an
2 excellent job of explaining that Nurse Shafer
3 was incorrect, and there are any number of
4 people familiar with the situation in that
5 clinic who say that is not the way things
6 happened, but I would take, over Nurse Shafer
7 any day of the week, the American Nurses
8 Association, an organization that represents 2.2
9 million registered nurses in 53 associations
10 across the United States. They say, "Very few
11 of those late-term abortions are performed every
12 year and they are usually necessary either to
13 protect the life of the mother or because of
14 severe fetal abnormalities." It is
15 inappropriate for lawmakers to mandate a course
16 of action for a woman who is already faced with
17 an intensely personal and difficult decision.
18 This procedure could mean the difference between
19 life and death for a woman.
20 The American College of
21 Obstetricians and Gynecologists has issued their
22 statement -- again in the brief time that we
23 have had it before us for any kind of review -
4290
1 and they made it abundantly clear that they are
2 disappointed that the New York State Legislature
3 would attempt to regulate medical decision
4 making by considering legislation on so-called
5 partial birth abortions. The College finds it
6 very disturbing, any action by the New York
7 State Legislature that would supersede the
8 medical judgment of trained physicians and that
9 would criminalize medical procedures which may
10 be necessary to save the life of a woman.
11 Moreover, in defining what
12 medical procedures doctors may or may not
13 perform, the bill employs terminology that is
14 not even recognized in the medical community,
15 demonstrating why legislative opinion should
16 never be substituted for professional medical
17 judgment.
18 Alan Rosenthal, a doctor and Dean
19 of Columbia School of Public Health states, "I
20 am concerned that the medical community is being
21 used and abused to further the political agenda
22 of individuals who do not support access to
23 safe, legal abortion. To many, this legislation
4291
1 appears to be simply the first step in a
2 procedure-by-procedure attempt to make the
3 constitutional right to choose meaningless."
4 I think it's pretty obvious that
5 we really have no business getting into this
6 medical quagmire. We don't know the language.
7 We take verbatim the opinions of people who are
8 not experts. We take out of context individuals
9 who may or who may not have been involved in a
10 process as bystanders or minor players and
11 elevate them to some kind of expert status, but
12 we have not studied this.
13 We have a responsibility, ladies
14 and gentlemen, before we deal with people's
15 lives to do it in a thoughtful, reasonable way.
16 If we can hold hearings on breast cancer and
17 give women's breasts the attention they deserve
18 in medical circumstances, why can't we do the
19 same for the uteruses of the women of this
20 state? Why are we rushing this bill out of this
21 house today? Why aren't we operating in concert
22 with the other legislative chamber here and why,
23 in God's name, are we doing it now?
4292
1 This is April 30th. We are 30
2 days late with a budget in New York State. I
3 have had not one single constituent come rushing
4 up to me in the grocery store when I was home in
5 my district and said, "Gosh, I hope you really
6 do something real fast about that late-term
7 abortion bill," not one, but I've had a whole
8 lot of people tell me, "What is wrong with you
9 people and why can't you get a budget done?"
10 That's what we elect you to do. They have made
11 it abundantly clear that they hold us in
12 contempt for the 12th year in a row for our
13 inability to put a budget together.
14 What is this diversionary tactic
15 all about? Is it because of this? Is it
16 because there are polls that show this is a
17 popular issue that will help Candidate Dole with
18 his campaign? Front page sories, "Bruno Pushes
19 for Ban on Late Abortions." Wonderful! The
20 polls show nationally the people thought that
21 President Clinton was wrong for his ban and that
22 perhaps this is something that the Republicans
23 can capitalize.
4293
1 I hope that's not the case. Even
2 I don't want to be so cynical as to believe that
3 this is motivated as a political maneuver. I
4 don't want to see the story that says, Anti
5 abortion leader Maltese and Bruno, or whoever,
6 embrace Dole in campaign walk, and they all pat
7 each other on the back for having pushed this
8 one-house bill through.
9 Is that what we are doing here?
10 Is that really what we're doing here? If it is,
11 we should all be ashamed of taking any part of
12 it, but if it isn't, then let's go back to the
13 drawing board on this. Let's hold those
14 hearings. Let's give every doctor -- let's give
15 Nurse Shafer a chance to come to New York State
16 so she can tell us what she saw. Let us have an
17 opportunity to ask her some of those questions.
18 Let me bring some of these nice doctors that
19 took the time to write letters, even a
20 handwritten letter and, by golly, you can tell
21 it's a doctor's letter because I have a real
22 hard time reading his handwriting. It looks
23 like most of the prescriptions that they write.
4294
1 These people deserve an
2 opportunity to be heard on this. Not one of us
3 is a physician. Not one of the 61 members of us
4 is a physician. How dare we pass a law that
5 defines medical terminology and tells physicians
6 what to do?
7 We have trivialized women's
8 reproductive health for the crassest political
9 purpose, or else we have done it because we have
10 bungled and didn't have something better to do
11 because we're rudderless without any kind of
12 substantive budget negotiations. Are we just
13 marking time here because we don't have a clue
14 what we're elected to do?
15 I really want some answers to
16 these questions because the people who have sent
17 me here from the 48th Senate District would like
18 to know why we are spending our time today on
19 April 30th on this measure.
20 Many of them don't like the idea
21 of abortion under any circumstances. They would
22 probably deluge me with letters if there was a
23 sound bill that outlawed this procedure.
4295
1 Probably many of them would have said that the
2 amendment that Senator Connor proposed was a
3 good idea, and I'm still incredulous why it was
4 that it was voted down.
5 Let me read it again in case
6 somebody missed it and you want to change your
7 mind before we leave today. It says, "The
8 provisions in this section shall not apply to
9 any abortion performed where, in the medical
10 judgment of the attending physician, the
11 abortion is necessary to preserve the life of
12 the woman or overt serious adverse health
13 consequences to the woman."
14 And people voted against that,
15 "the life of the woman or serious adverse
16 health of the woman"? What is the priority
17 here, or is this another one of those procedural
18 things because it was introduced by a Minority
19 member, it has no meaning? I don't think so,
20 because I did hear two Republicans vote for it,
21 but why wasn't this taken into consideration?
22 The life, the adverse health of
23 women in this state deserves more consideration
4296
1 than we've given it this last week, more
2 consideration than we've given it today. I
3 believe we should at the very least allow
4 Senator Tully or some other Republican member
5 who has demonstrated some compassion for women's
6 health in the past to hold some hearings on it.
7 If Senator Maltese doesn't, I'm sure Senator
8 Bruno can find a member on the other side of the
9 aisle who will.
10 Clearly, it wouldn't be a valid
11 public hearing because we know there are no
12 Democrats who are allowed to chair a committee.
13 We could have some kind of a rump hearing, I
14 suppose, or a task force. It will have to be
15 called a Minority task force, but it would be a
16 task force, but why don't we do it so that it's
17 real? Why don't we do it so we can engender
18 some respect from people out there for a change,
19 and why don't we do it at a time when we have
20 put our budget together and we can give it the
21 attention it deserves?
22 I'm trying to find out what it
23 was the Governor said today about the school aid
4297
1 that has eliminated the city of Syracuse from
2 some windfall that's just been discovered, or
3 some change in the calendar on school aid. I
4 would like to find out because the people in
5 Syracuse need that information right now. They
6 don't need to be subjected to this kind of
7 grandstanding, these kinds of headlines, and
8 more waste of their tax dollars.
9 THE PRESIDENT: The debate on the
10 bill is concluded. Read the last section,
11 please.
12 THE SECRETARY: Section 3. This
13 act shall take effect on the first day of
14 November.
15 THE PRESIDENT: Senator Maltese.
16 SENATOR MALTESE: Madam
17 President.
18 THE PRESIDENT: Senator Maltese.
19 SENATOR SKELOS: Madam President,
20 would you kindly recognize Senator Maltese to
21 close.
22 THE PRESIDENT: Yes. Senator
23 Maltese.
4298
1 SENATOR MALTESE: Yes, Madam
2 President. I will be comparatively brief.
3 First of all, in the desire, my
4 good colleague Senator Dollinger, to be absol
5 utely accurate, he kept referring, of course, to
6 Barbara Shafer when, in fact, Nurse Shafer's
7 first name is Brenda but, more importantly, he
8 referred to letters and correspondence, as my
9 colleague -- as Senator Hoffmann did, referring
10 to the truthfulness of this abortion bill and
11 employees of this abortion clinic where the good
12 doctor worked.
13 I have before me again, which I
14 read earlier, the seminar -- management seminar
15 paper that was written by the doctor in question
16 where, if you recall, Senator Dollinger's
17 letters indicated that the doctor did not use
18 the ultrasound, and I'll just skip.
19 "The surgical assistant places
20 an ultrasound probe on the patient's abdomen and
21 scans the fetus." Further down, "The transducer
22 is then held in position over the lower
23 extremities."
4299
1 Further down, "When the
2 instrument appears on the sonogram screen, the
3 surgeon is able to open and close its jaws to
4 firmly and reliably grasp a lower extremity."
5 Further down, "By observing the
6 movement of the lower extremity and version on
7 ultrasound screen, the surgeon is assured that
8 his instrument has not inappropriately grasped a
9 maternal structure."
10 The sonogram in the procedure as
11 described by the doctor itself is absolutely
12 essential to the procedure, or else, as he
13 indicates very clearly, he could possibly
14 inappropriately grasp some portion of the
15 mother's internal organs.
16 It's difficult to tell where to
17 start, but -- oh, I would, in reference to my
18 good colleague, Senator Cook, about these
19 aborted babies don't live -- I just have the
20 article from the New York Post. Admittedly, it
21 was -- she was the subject of a saline
22 procedure, but her name was Jeanna Jessin.
23 There's a beautiful picture of her. She's 19
4300
1 years old, and I give it to my colleague. I'm
2 sorry, John. I didn't mean to throw it.
3 Madam President, just the last -
4 forgetting all this testimony, doctors'
5 testimony, what have you, they were probably
6 some of the most extensive Congressional
7 hearings ever held. All those papers are
8 available. They were referred to by Senator
9 Dollinger and others, obviously available to
10 both the Minority and Majority.
11 This is a procedure that is
12 reprehensible. This is a procedure that's
13 practiced by physicians where they describe
14 holding the head into the mother so that the
15 back of the head may be pierced by a pair of
16 surgical shears. Other doctors have told us and
17 testified in Washington that that is, in many
18 cases, the only thing that stops the baby from
19 being born.
20 This procedure is tantamount to
21 homicide. It should not be permitted. It
22 should not be condoned. It certainly should not
23 be the law of New York State that it is
4301
1 permitted.
2 THE PRESIDENT: Read the last
3 section, please.
4 SENATOR LEICHTER: Slow roll
5 call.
6 THE SECRETARY: Section 3. This
7 act shall take effect on the first day of
8 November.
9 THE PRESIDENT: Slow roll call,
10 please.
11 THE SECRETARY: Senator Abate.
12 SENATOR ABATE: No.
13 THE SECRETARY: Senator Alesi.
14 SENATOR ALESI: Yes.
15 THE SECRETARY: Senator Babbush.
16 SENATOR BABBUSH: No.
17 THE SECRETARY: Senator Bruno.
18 SENATOR BRUNO: Yes.
19 THE SECRETARY: Senator Connor.
20 (Negative indication.)
21 Senator Cook.
22 SENATOR COOK: No.
23 THE SECRETARY: Senator
4302
1 DeFrancisco.
2 THE PRESIDENT: Senator
3 DeFrancisco.
4 SENATOR DeFRANCISCO: I vote aye,
5 and I just want to state very briefly the
6 reasons why.
7 There were several comments made
8 about we should have more hearings; we should be
9 discussing it more, debating it more. There's
10 not one hearing that we could have that could
11 possibly change anybody's mind in these
12 chambers, and to suggest we need more procedure
13 is just to delay an inevitable vote because you
14 all know where you're going to stand on this
15 particular issue.
16 Secondly, the reason I'm voting
17 against it is because this procedure is
18 abhorrent when a child is half in existence, to
19 end that child's life, and it's just surprising
20 to me that all of the debate that we've heard
21 about how we don't care about women, how we
22 don't care about women's issues, how we don't
23 care about the health and safety of the women,
4303
1 that half of those half-born children are
2 potential women, potential women who have no
3 voice at hearings, who have no voice before
4 these chambers, and who are half born but are
5 not given the right to be fully born and enjoy
6 the life that we all have.
7 For those reasons and because the
8 procedure is abhorrent, I will vote aye.
9 THE PRESIDENT: Continue the slow
10 roll call, please.
11 THE SECRETARY: Senator DiCarlo.
12 SENATOR DiCARLO: Madam
13 President, to explain my vote.
14 THE PRESIDENT: Senator DiCarlo.
15 SENATOR DiCARLO: I wasn't going
16 to stand up and speak on this issue, but I think
17 I have to, just to get a point across that I
18 think hasn't been spoken about here today.
19 I'm saddened by the tone of this
20 debate, and I'm saddened because I was here when
21 my father was an Assemblyman back in the late
22 '60s and early '70s when the abortion debate
23 first came up, and I remember sitting on the
4304
1 floor of the Assembly when my father debated
2 against legalizing abortion, and I remember how
3 emotional it was when they were talking about
4 aborting two-inch big fetuses and how that was
5 murdering children and how intense that debate
6 was over two-inch long fetuses, and now I join
7 my colleagues in the Senate some 20-some-odd
8 years later as a member of the Senate, and we're
9 debating whether it should be legal to kill
10 half-born babies, and that's the normal debate
11 we are now involved with.
12 What's happened in the last 20 to
13 25 years when an issue that should be so easy is
14 made so difficult by what I would label as
15 extremists, when extremists can make this a
16 debate that is so difficult when it should be
17 such an easy debate?
18 I'm saddened by this debate, and
19 I'm saddened that we in this state have come to
20 this position. I'm saddened for the future
21 because if we continue down this road, then life
22 is not precious and nothing is important.
23 I vote yes.
4305
1 THE PRESIDENT: Continue the slow
2 roll call.
3 THE SECRETARY: Senator
4 Dollinger.
5 SENATOR DOLLINGER: To explain my
6 vote, Madam President. My colleagues heard me
7 talk about the politics of this and the
8 difficulty that I believe attends this bill.
9 I wrote a letter to the dioceses
10 yesterday. I'll quote just a part of it. "In
11 considering this issue, I asked myself a very
12 simple question. What would I do if the doctor
13 attending my wife during her pregnancy said that
14 the birth of our unborn child might take my
15 wife's life or cause serious adverse
16 consequences to her?
17 "I love my wife. We have been
18 married for 21 years this Friday. I would never
19 want to choose between the life of my wife and
20 the life of my child. I believe that if I were
21 faced with this choice, I would pray for
22 guidance, discuss it with my family, my wife and
23 my children, and then make a terrible choice.
4306
1 "I do not know what that choice
2 would be even now as I consider that frightful
3 possibility. However, the last thing I would
4 want is anyone, including my doctor, my
5 cardinal, my priest, my church, my parents and,
6 most especially, my government, to tell me that
7 I had no choice and that the birth of my child,
8 even lived horribly disfigured and incapable for
9 living even a reasonable time, was more
10 important than the life and health of my wife.
11 "I know these are close calls.
12 How much of an impairment of my wife's health is
13 reasonable for her to endure in order that my
14 child be born? In searching my conscience
15 today, I do not know the answer. I am not sure
16 there is a single answer that would apply in
17 every case, but I do know, consistent with my
18 church's concept of enlightened free will, that
19 the choice is mine and my wife's to make and not
20 for anyone else.
21 "I have never had to make this
22 choice. God blessed us with three wonderful and
23 healthy children, but because I know how
4307
1 difficult and complicated and conscience
2 wrenching that choice would be, how could I ever
3 justify this government taking it away?"
4 I vote no.
5 THE PRESIDENT: Continue the roll
6 call, please.
7 THE SECRETARY: Senator Espada.
8 SENATOR ESPADA: No.
9 THE SECRETARY: Senator Farley.
10 SENATOR FARLEY: Aye.
11 THE SECRETARY: Senator Gold
12 recorded in the negative earlier today.
13 Senator Gonzalez.
14 SENATOR GONZALEZ: Aye.
15 THE SECRETARY: Senator Goodman.
16 SENATOR GOODMAN: No.
17 THE SECRETARY: Senator Hannon.
18 SENATOR HANNON: Yes.
19 THE SECRETARY: Senator Hoblock.
20 SENATOR HOBLOCK: Madam
21 President.
22 THE PRESIDENT: Senator Hoblock.
23 SENATOR HOBLOCK: Madam
4308
1 President, to explain my vote.
2 Madam President, I've listened to
3 the debate very carefully, as I'm sure just
4 about everyone else has. A lot has been said
5 today on a very important issue, one that is
6 very emotional. I've heard whether we're voting
7 on a bill, debating a bill, or whether we're
8 voting on an issue and debating an issue. I
9 think we are debating and voting on an issue.
10 I listened to my good friends,
11 Charlie Cook and Roy Goodman, debate and talk
12 about this bill, and I think what Roy Goodman
13 said -- a lot of what he said is absolutely true
14 in that I kind of hope, I guess many of us
15 would, that we wouldn't even have to talk about
16 this issue or it would not occur -- the
17 procedure would not occur but, unfortunately, it
18 does.
19 I've stood on this floor and I've
20 stood on the floor of the Assembly and talked
21 about my stand on exercise of a woman's right,
22 particularly supporting the law as it exists in
23 New York State and as set down by the Supreme
4309
1 Court in Roe versus Wade, and talked and debated
2 about the Medicaid funding issue, talked and
3 debated the parental notification issue, and
4 lots of other issues, and I think in each and
5 every one of those, I've tried to look at the
6 issue and the bill to try to make an intelligent
7 decision.
8 On this particular bill, I'm
9 letting my conscience rule, because I think even
10 the way I do believe in the basic right to
11 choose, I've got to draw the line. My
12 conscience tells me that that's what I have to
13 do and, as I know this procedure, what I've
14 listened to today and what I've heard about the
15 last few days, it's horrific. It's a procedure
16 that not too many people want to speak about,
17 and I would hope we didn't have to but we do.
18 So my conscience is ruling and
19 I'm drawing the line, and I vote in the
20 affirmative.
21 THE PRESIDENT: Continue the roll
22 call.
23 THE SECRETARY: Senator Hoffmann.
4310
1 SENATOR HOFFMANN: No.
2 THE SECRETARY: Senator Holland.
3 SENATOR HOLLAND: Yes.
4 THE SECRETARY: Senator Johnson.
5 SENATOR JOHNSON: Aye.
6 THE SECRETARY: Senator Kruger.
7 (There was no response.)
8 Senator Kuhl.
9 SENATOR KUHL: Aye.
10 THE SECRETARY: Senator Lachman.
11 SENATOR LACHMAN: Aye.
12 THE SECRETARY: Senator Lack.
13 SENATOR LACK: Aye.
14 THE SECRETARY: Senator Larkin.
15 SENATOR LARKIN: Aye.
16 THE SECRETARY: Senator LaValle.
17 SENATOR LAVALLE: Aye.
18 THE SECRETARY: Senator Leibell.
19 SENATOR LEIBELL: Aye.
20 THE SECRETARY: Senator Leichter.
21 SENATOR LEICHTER: No.
22 THE SECRETARY: Senator Levy.
23 SENATOR LEVY: Aye.
4311
1 THE SECRETARY: Senator Libous.
2 SENATOR LIBOUS: Aye.
3 THE SECRETARY: Senator Maltese.
4 SENATOR MALTESE: Aye.
5 THE SECRETARY: Senator
6 Marcellino.
7 SENATOR MARCELLINO: Aye.
8 THE SECRETARY: Senator Marchi.
9 SENATOR MARCHI: Aye.
10 THE SECRETARY: Senator
11 Markowitz.
12 SENATOR MARKOWITZ: No.
13 THE SECRETARY: Senator Maziarz.
14 SENATOR MAZIARZ: Aye.
15 THE SECRETARY: Senator Mendez.
16 (Affirmative indication.)
17 THE SECRETARY: Senator
18 Montgomery.
19 (Negative indication.)
20 THE SECRETARY: Senator Nanula.
21 (Negative indication.)
22 THE SECRETARY: Senator Nozzolio.
23 SENATOR NOZZOLIO: Aye.
4312
1 THE SECRETARY: Senator Onorato.
2 SENATOR ONORATO: Aye.
3 THE SECRETARY: Senator
4 Oppenheimer.
5 THE PRESIDENT: Senator
6 Oppenheimer.
7 SENATOR OPPENHEIMER: Because
8 some people have questioned whether this
9 procedure would be something that you would opt
10 for were you a woman who wanted to have an
11 abortion or simply didn't want to have the
12 child, I can assure you that a woman that has
13 made up her mind not to have the child is going
14 to have an abortion certainly in the first
15 trimester. If perhaps it slips by, maybe the
16 second, but this could never, never occur in the
17 third trimester when you are seven or eight or
18 nine months -- well, nine -- seven or eight, six
19 months pregnant. You feel the baby. You become
20 very attached to what's inside of you. It's
21 like a piece of you. It's inseparable from what
22 you are, and so no woman would ever permit
23 herself to get to that point if she did not want
4313
1 to have the baby. So you must understand that
2 these are women who desperately want this child,
3 only this child is so impaired that there's no
4 way that this child would be able to sustain
5 life.
6 Therefore, this procedure -- we
7 have to now look at this procedure. This
8 procedure is a horrible procedure and, believe
9 me, no woman in the world is going to want this
10 procedure, but it is forced on the family, and
11 why is it forced -- and also, before I get to
12 that, I want to mention that this is just an
13 infinitesimally small piece of the abortions
14 that are done in the third trimester. You do
15 understand that. Of that one percent that has
16 -- women that have abortions in the third
17 trimester, 90.96 of that -- almost the entire
18 one percent -- is done by other methods. We're
19 talking about 4/100ths of one percent that does
20 it by this method.
21 Well, why would you do it by this
22 method? There is a reason, and that's why the
23 doctors choose this method in the instance where
4314
1 the head of the child is either very swelled or
2 the brain is actually outside. The head is
3 simply too big to get through the birthing
4 canal. So that's why they choose this, because
5 these women desperately wanted these children -
6 this child, and they want to continue to have
7 more children, and this is the only method that
8 we can be certain that the uterus will not be
9 damaged and that the woman can then go on to
10 have other children.
11 I've spoken now with three women
12 who have had this process -- that procedure.
13 All three have small babies now. They want to
14 have their kids. So, yes, the procedure is God
15 awful, but it's the only way that we can be sure
16 that these women that want to have more children
17 will be able to do so. Otherwise, there are
18 other procedures for trimester abortions. In
19 fact, 96 out of every 100 are done in the other
20 procedure. So you must understand how small,
21 how minuscule these procedures are, and you
22 really have to understand why it's being done.
23 I vote no.
4315
1 THE PRESIDENT: Continue the slow
2 roll call, please.
3 THE SECRETARY: Senator Padavan.
4 SENATOR PADAVAN: Yes.
5 THE SECRETARY: Senator Paterson
6 recorded in the negative earlier today.
7 Senator Present.
8 SENATOR PRESENT: Aye.
9 THE SECRETARY: Senator Rath.
10 SENATOR RATH: Aye.
11 THE SECRETARY: Senator Saland.
12 SENATOR SALAND: Aye.
13 THE SECRETARY: Senator Santiago.
14 SENATOR SANTIAGO: No.
15 THE SECRETARY: Senator Seabrook.
16 SENATOR SEABROOK: No.
17 THE SECRETARY: Senator Sears.
18 SENATOR SEARS: Aye.
19 THE SECRETARY: Senator Seward.
20 SENATOR SEWARD: Aye.
21 THE SECRETARY: Senator Skelos.
22 SENATOR SKELOS: Aye.
23 THE SECRETARY: Senator Smith.
4316
1 THE PRESIDENT: Senator Smith.
2 SENATOR SMITH: Thank you, Madam
3 President.
4 Eliminating or limiting the
5 availability of this procedure could force a
6 woman to carry a severely deformed fetus and
7 risk her own health while possibly risking her
8 future ability to have a child.
9 In the case of severe
10 abnormalities or threats to the life and health
11 of the mother, doctors must be permitted to
12 practice medicine based upon their professional
13 knowledge and their skilled performance of the
14 procedure which will most effectively protect
15 the life and health of their patient. When a
16 family is faced with this tragic decision, it is
17 because a woman's life is in danger. I will not
18 and I cannot participate in this death sentence
19 upon women.
20 Therefore, I vote no.
21 THE PRESIDENT: Continue the slow
22 roll call.
23 THE SECRETARY: Senator Spano.
4317
1 SENATOR SPANO: No.
2 THE SECRETARY: Senator
3 Stachowski.
4 (There was no response.)
5 Senator Stafford voting in the
6 affirmative earlier today.
7 Senator Stavisky voting in the
8 negative earlier today.
9 Senator Trunzo.
10 SENATOR TRUNZO: Aye.
11 THE SECRETARY: Senator Tully.
12 SENATOR TULLY: Aye.
13 THE SECRETARY: Senator Velella.
14 SENATOR VELELLA: Yes.
15 THE SECRETARY: Senator Volker.
16 SENATOR VOLKER: Yes.
17 THE SECRETARY: Senator Waldon.
18 (Negative indication.)
19 Senator Wright.
20 SENATOR WRIGHT: Aye.
21 THE PRESIDENT: Absentees,
22 please.
23 THE SECRETARY: Senator Kruger.
4318
1 (There was no response.)
2 Senator Stachowski.
3 SENATOR STACHOWSKI: Yes.
4 THE PRESIDENT: The results,
5 please.
6 THE SECRETARY: Ayes 39, nays 21.
7 THE PRESIDENT: The bill is
8 passed.
9 We have housekeeping at the
10 desk.
11 SENATOR BRUNO: Is there, Madam
12 President?
13 THE PRESIDENT: Yes.
14 SENATOR BRUNO: Can we take care
15 of those items presently?
16 THE PRESIDENT: Senator Seward.
17 SENATOR SEWARD: Yes, Madam
18 President. On page 15, I offer the following
19 amendments to Calendar Number 425, Senate Print
20 Number 5729-A, and ask that the bill retain its
21 place on the third reading.
22 THE PRESIDENT: The amendments
23 are received.
4319
1 SENATOR SEWARD: I have three
2 other items of housekeeping as well.
3 THE PRESIDENT: Go ahead,
4 Senator.
5 SENATOR SEWARD: On behalf of
6 Senator Johnson, please remove the sponsor's
7 star from Calendar Number 411.
8 THE PRESIDENT: The star is
9 removed.
10 SENATOR SEWARD: On page 22, I
11 offer the following amendments to Calendar
12 Number 572, Senate Print Number 6052, by Senator
13 DeFrancisco and ask that that bill retain its
14 place on the Third Reading Calendar.
15 THE PRESIDENT: The amendments
16 are received.
17 SENATOR SEWARD: And on behalf on
18 Senator Alesi, I move that the following bills
19 be discharged from their respective committees
20 and be recommitted with instructions to strike
21 the enacting clause. That's Senate Bill Number
22 7410.
23 THE PRESIDENT: The enacting
4320
1 clause is struck.
2 Senator Montgomery -- I can't
3 hear Senator Montgomery.
4 SENATOR MONTGOMERY: Madam
5 President, I move that the following bill be
6 discharged from its committee and be recommitted
7 with instructions to strike the enacting
8 clause: Senate Bill 4311.
9 THE PRESIDENT: The enacting
10 clause is struck.
11 SENATOR MONTGOMERY: Thank you.
12 THE PRESIDENT: Senator Mendez.
13 SENATOR MENDEZ: Madam President,
14 there will be a Minority Conference tomorrow at
15 10:30 a.m. at Room 314.
16 THE PRESIDENT: There will be a
17 Minority Conference tomorrow at 10:30 in Room
18 314.
19 Senator Bruno.
20 SENATOR BRUNO: Madam
21 President -
22 THE PRESIDENT: There's no
23 further business.
4321
1 SENATOR BRUNO: Would you
2 recognize Senator Volker, Madam President.
3 THE PRESIDENT: I'm sorry.
4 Senator Volker.
5 SENATOR VOLKER: Madam President,
6 I just want to remind the members that tomorrow
7 morning at 8:00 o'clock is the annual memorial
8 service, interfaith service for deceased
9 legislators, 8:00 o'clock at St. Mary's Church
10 down at the bottom of the hill. I would
11 appreciate anybody who could get there. It's
12 the annual service at 8:00 o'clock tomorrow
13 morning.
14 Thank you.
15 THE PRESIDENT: Thank you,
16 Senator Volker.
17 Senator Bruno, there is no
18 further business.
19 SENATOR BRUNO: Madam President,
20 there being no further business to come before
21 the Senate, I move we stand adjourned until
22 tomorrow at 11:00 a.m.
23 THE PRESIDENT: The Senate stands
4322
1 adjourned until Wednesday, May 1st, at 11:00
2 a.m. sharp.
3 (Whereupon, at 7:27 p.m., the
4 Senate adjourned.)
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