Sunday, April 4, 1993

2114 1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 April 4, 1993 10 3:05 p.m. 11 12 13 REGULAR SESSION 14 15 16 17 SENATOR HUGH T. FARLEY, Acting President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 2115 1 P R O C E E D I N G S 2 ACTING PRESIDENT FARLEY: The 3 Senate will come to order. Senators will find 4 their seats. 5 If you will please rise with me 6 for the Pledge of Allegiance to the Flag. 7 (The assemblage repeated the 8 Pledge of Allegiance to the Flag. ) 9 ACTING PRESIDENT FARLEY: Today 10 in the absence of clergy, we'll bow our heads 11 for a moment of silent prayer. 12 (A moment of silence was 13 observed. ) 14 Secretary will begin by reading 15 the Journal. 16 THE SECRETARY: In Senate, 17 Saturday, April 3rd. The Senate met pursuant to 18 adjournment, Senator Farley in the Chair upon 19 designation of the Temporary President. The 20 Journal of Friday, April 2nd, was read and 21 approved. On motion, Senate adjourned. 22 ACTING PRESIDENT FARLEY: Hearing 23 no objection, the Journal will stand approved as 2116 1 read. 2 The order of business: 3 Presentation of petitions. 4 Messages from the Assembly. 5 Messages from the Governor. 6 Reports of standing committees. 7 Do we have a report? 8 Reports of select committees. 9 Communications and reports from 10 state officers. 11 Motions and resolutions. 12 SENATOR VELELLA: Mr. President. 13 ACTING PRESIDENT FARLEY: Yes, we 14 do. Senator Velella. 15 SENATOR VELELLA: On behalf of 16 Senator Padavan, on page 9, I offer the 17 following amendments to Calendar 106, Senate 18 Print 1208, and ask that said bill retain its 19 place on Third Reading Calendar. 20 ACTING PRESIDENT FARLEY: 21 Amendments are received. The bill will retain 22 its place on Third Reading Calendar. 23 SENATOR VELELLA: And on behalf 2117 1 of Senator Johnson, on page 16, I offer the 2 following amendments to Calendar Number 336, 3 Senate Print Number 2762, and ask that it retain 4 its place on Third Reading Calendar. 5 ACTING PRESIDENT FARLEY: 6 Amendments are received; the bill will retain 7 its place. 8 Senator Present. 9 SENATOR PRESENT: Mr. President, 10 on behalf of Senator Marino, I move to recommit 11 Senate Print 1892-A, Calendar Number 184, of the 12 committee -- back to the Committee on Cities. 13 ACTING PRESIDENT FARLEY: The 14 bill is recommitted. 15 Senator Present. 16 SENATOR PRESENT: Mr. President, 17 I'd like to call an immediate meeting of the 18 Rules Committee in Room 332. 19 ACTING PRESIDENT FARLEY: There 20 will be an immediate meeting of the Rules 21 Committee in Room 332. 22 SENATOR PRESENT: Mr. President, 23 the chamber will stand at ease until a report 2118 1 from that Committee returns. 2 ACTING PRESIDENT FARLEY: The 3 Senate will stand at ease until the Rules 4 Committee report. 5 (The Senate stood at ease from 6 3:08 p.m. to 3:19 p.m.) 7 ACTING PRESIDENT FARLEY: Senator 8 Present. 9 SENATOR PRESENT: On behalf of 10 Senator Stafford, I'd like to call an immediate 11 meeting of the Finance Committee in Room 332. 12 ACTING PRESIDENT FARLEY: There 13 will be an immediate meeting of the Finance 14 Committee in 332. 15 Senator Present. 16 SENATOR PRESENT: Senate will 17 stand at ease. 18 ACTING PRESIDENT FARLEY: The 19 Senate will stand at ease. 20 (The Senate stood at ease from 21 3:21 p.m. to 3:36 p.m.) 22 ACTING PRESIDENT FARLEY: Senator 23 Present. 2119 1 SENATOR PRESENT: Mr. President, 2 could we return to reports of standing 3 committees. 4 ACTING PRESIDENT FARLEY: The 5 Senate -- the Secretary will read a report of a 6 standing committee. 7 THE SECRETARY: Senator Marino, 8 from the Committee on Rules, reports the 9 following bill directly for third reading: 10 Senate Bill Number 4038, by Senator Maltese, an 11 act to amend the Social Services Law, in 12 relation to medical assistance exclusion. 13 ACTING PRESIDENT FARLEY: Without 14 objection, that bill is reported directly to 15 third reading. 16 SENATOR LEICHTER: Explanation. 17 ACTING PRESIDENT FARLEY: You 18 want to do the resolution report -- take your 19 time. 20 Senator Present. 21 SENATOR PRESENT: Mr. President, 22 I move that we adopt the Resolution Calendar 23 with the exception of Number 944. 2120 1 SENATOR GOLD: Mr. President. 2 ACTING PRESIDENT FARLEY: Senator 3 Gold. 4 SENATOR GOLD: Yes. With regard 5 to 957, which is my resolution on Dennis Byrd, 6 anyone who wants to be on that is certainly 7 welcome. 8 ACTING PRESIDENT FARLEY: I think 9 we've got to call -- did you get all those 10 names? 11 We have not adopted it as yet, 12 and one of the reso's is held out or held aside 13 for a moment. All in favor of adopting the 14 Resolution Calendar with exceptions, say aye. 15 (Response of "Aye.") 16 Those opposed nay. 17 (There was no response. ) 18 The Resolution Calendar is 19 adopted. 20 Senator Present. 21 SENATOR PRESENT: Mr. President, 22 can we return to reports of standing committees. 23 ACTING PRESIDENT FARLEY: We have 2121 1 a report of a standing committee. The Secretary 2 will read it. 3 THE SECRETARY: Senator Stafford, 4 from the Committee on Finance, reports the 5 following bills directly for third reading: 6 Senate Bill Number 4009, an act 7 to amend Chapter 303 of the Laws of 1988, 8 relating to the extension of the State 9 Commission on the Restoration of the Capitol. 10 Senate Bill Number 4228, an act 11 to amend a Chapter of the Laws of 1993, enacting 12 the Legislature and Judiciary budget, in 13 relation to appropriations made for the 14 Judiciary. 15 Also Senate Bill 4358, by the 16 Committee on Rules, proposing amendments to the 17 Constitution, in relation to the manner of 18 contracting, paying and refunding state debts. 19 Also Senate Bill Number 4359, 20 proposing an amendment to the Constitution, by 21 the Committee on Rules, in relation to the 22 submission of a capital program and financing 23 plan. 2122 1 All bills directly for third 2 reading. 3 ACTING PRESIDENT FARLEY: All 4 bills reported directly to third reading. 5 Senator Present. 6 SENATOR PRESENT: Mr. President, 7 can we take up Senate Bill 4038, previously 8 reported by the Rules Committee. 9 ACTING PRESIDENT FARLEY: 10 Secretary will read the bill. 11 THE SECRETARY: Calendar Number 12 399, by Senator Maltese, Senate Bill Number 13 4038, an act to amend the Social Services Law, 14 in relation to medical assistance exclusion. 15 SENATOR GOLD: Explanation. 16 ACTING PRESIDENT FARLEY: 17 Explanation has been asked for. Senator 18 Maltese. 19 SENATOR MALTESE: Mr. President, 20 this bill would amend Section 365-A of the 21 Social Services Law, by adding a new subdivision 22 8 regarding the exclusion of medical assistance 23 for abortion under certain circumstances. 2123 1 Each year, approximately from 2 18.8 million to $21 million of Medicaid funds 3 are spent for the purpose of providing abortions 4 for Medicaid-eligible individuals. Taxpayers 5 should not be required to pay for medically 6 unnecessary abortions and, as such, this bill 7 would prohibit the expenditure of funds for 8 abortions or related care, supplies and services 9 except where determined to be medically 10 necessary to preserve the life of the mother or 11 where the pregnancy is the result of rape or 12 incest. 13 The latest data that we have, Mr. 14 President, indicates that in 1991, there were 15 158,762 abortions performed in New York State 16 alone and, of that number, 49,500 were 17 Medicaid-funded. That would amount to $20.3 18 million. In 1992, the total Medicaid-funded 19 abortions were 48,500, and that would amount to 20 $21 million. It is estimated that approximately 21 two-thirds of them would come under the 22 terminology in this bill and thus would be 23 covered by this bill and the money that would be 2124 1 saved would be quite substantial. 2 Mr. President, as to the guts of 3 this emotional issue, this has been debated in 4 prior years, but I would like to read from a 5 portion of the legislative memo in support of 6 this legislation from the New York State Nurses 7 for Life. 8 "New York State Nurses for Life 9 insists that abortion is a civil rights issue. 10 An innocent victim is deprived of life. Medical 11 science has monitored the heartbeat of the 12 unborn 25 days after conception and brain waves 13 45 days after conception. These, we stress, are 14 scientific facts, not religious beliefs." 15 New York State Nurses for Life 16 have stated that they -- that *** "we regard 17 abortion as a civil rights issue. When it comes 18 to civil rights, it is generally accepted that 19 for each of us, our personal civil rights ends 20 when the rights of our neighbor begin." 21 SENATOR PADAVAN: Mr. President. 22 Mr. President, could we have some order? I 23 believe there's an awful lot of conversation. 2125 1 ACTING PRESIDENT FARLEY: Your 2 point is well taken. Please, let's take these 3 conversations outside the chamber. 4 Senator Maltese. 5 SENATOR MALTESE: Continuing the 6 statement in support by the New York State 7 Nurses for Life: "The law does not allow us to 8 destroy or occupy our neighbor's house. The law 9 does not allow us to take our neighbor's life. 10 And this is the most compelling portion: "As 11 nurses, we have been taught that the care of a 12 pregnant woman involves the care of not one, but 13 two individuals, mother and child. We can not 14 sanction the killing of the unborn baby who is 15 the most defenseless segment of our society." 16 Mr. President, I would like to 17 show for our colleagues a recent headline from 18 the Daily Gazette of Schenectady, of February 19 5th, 1993, and that headline reads: ABORTION IN 20 STATE AT HIGHEST LEVEL SINCE 1982. 21 Mr. President, we are advised 22 that in all of New York State, there were 23 298,702 live births. Therefore, if we take the 2126 1 figure of abortions in that same year, 1990, 2 which are completed data, that is 159,978. Thus 3 we have an abortion rate, a shameful abortion 4 rate, in this state of 53 per one hundred live 5 births. 6 Mr. President, this is an issue 7 that has come up in the past and we who espouse 8 the "life" issue have taken the argument that 9 those that have opposed the death penalty for 10 convicted criminals, those that have supported 11 -- that have opposed the death penalty for 12 persons who are convicted after the most time 13 consuming and involved legal system in the 14 world, those are the same people who would 15 condemn to death the unborn who are guilty of no 16 crime except of being conceived. 17 Mr. President, this is an 18 emotional issue for all of us, but it is a far 19 more critical issue for the unborn. For them, 20 it is the question of life and death. 21 Mr. President, I urge the 22 adoption of this legislation. 23 SENATOR OPPENHEIMER: Mr. 2127 1 President. 2 ACTING PRESIDENT FARLEY: Senator 3 Oppenheimer. 4 SENATOR OPPENHEIMER: In no way 5 do I doubt the sincerity and the honesty with 6 which Senator Maltese prepared his -- his words, 7 and I don't want to get into a discussion of 8 when does life begin, or religious values. At 9 this point I would just like to mention, speak 10 of two -- two things that have very much changed 11 in the past year and that will make my speech a 12 little bit different from what we have discussed 13 in prior years. 14 Now, I have talked of what I felt 15 was a humane and an enlightened and a sound 16 policy that we have in our state and most - 17 most New Yorkers recognize abortion as a 18 fundamental right of women, a personal liberty 19 of women, and this is the 22nd anniversary of 20 our legislation which decriminalized abortion 21 which we did in 1970 and, at that same time, in 22 1970, this Legislature and the Governor 23 recognized that Medicaid was essential for 2128 1 reproductive choice for the poor because, if 2 there is no Medicaid, there is no choice for the 3 poor and, therefore, the law does not apply to 4 the poor. 5 Well, something very new has 6 happened, and this is really very, very new, 7 because on March 23rd of this year -- and that's 8 like ten days ago, the court spoke in a decision 9 called Hope vs. Perales. The Appellate Division 10 said at that time that our state Constitution, 11 New York State's Constitution, prohibits a state 12 policy that burdens the fundamental right to 13 choice, that the state cannot exclude abortion 14 funding from all other pregnancy services that 15 are offered by New York State, that they can't 16 -- the state may not selectively fund child 17 birth but not fund abortion, since abortion is 18 one of the medically acceptable options. 19 The opinion explicitly says the 20 due process clause of the New York State 21 Constitution encompasses the right to 22 reproductive choice, which is an integral part 23 of the right to privacy and the case -- the 2129 1 agency and the program under discussion in the 2 court case is PCAP, which is our prenatal care 3 assistance program, and it said that this 4 service must be provided to poor women and have 5 all choices included in the discussion offering 6 the full range of medical services to pregnant 7 women. 8 Let me just read in conclusion - 9 where is it? In conclusion, this is what the 10 appellate court noted, that once the state 11 assumed the responsibility of helping needy 12 pregnant women, it was required to do so in a 13 neutral -- in a neutral, non-discriminatory 14 manner that does not coerce poor women into 15 choosing child birth even at the expense of 16 their health and well-being. 17 We expect that this will be 18 appealed to the Court of Appeals but, as we all 19 know, the Court of Appeals has been expansively 20 interpreting our state Constitution and in their 21 belief saying that our state Constitution offers 22 greater privacy rights and constitutional 23 protections than does the federal Constitution, 2130 1 and this is -- has been borne out in other 2 states. 3 In -- just in January, in 4 February of '91, the Court of Appeals in 5 Michigan ruled that their Medicaid program 6 violated the Michigan state Constitution because 7 the court found that the law restricting payment 8 for abortion -- abortions created a direct 9 barrier to a woman's fundamental right to 10 abortion, and that there is no compelling state 11 interest that would justify this infringement. 12 Likewise, in interpreting the 13 application of the Massachusetts due process 14 clause to Medicaid funding for abortion, the 15 Massachusetts Supreme Judicial Court ruled that 16 "once the state chooses to enter the 17 constitutionally protected area of choice, it 18 must do so with genuine indifference. It may 19 not weigh options open to the pregnant woman by 20 its allocation of public funds. In this area, 21 government is not free to achieve with carrots 22 what it is forbidden to achieve with sticks." 23 And, similarly, the California 2131 1 Supreme Court concluded that once the state 2 furnishes medical care to the poor woman in 3 general, it cannot withdraw part of that care 4 solely because the woman exercises her 5 constitutional right to choose to have an 6 abortion. 7 So these are quite different 8 parameters than we saw last year and, as I said, 9 we do expect that this will be appealed up to 10 the Court of Appeals, but we do know that that 11 court and Judith Kaye have a very expansive view 12 of our state Constitution. 13 Now, let me for a moment just 14 look at the justification that is in the 15 memorandum in support that Senator Maltese and 16 Padavan have put out, and I must say this 17 justification is a bit appalling to me as I'm - 18 I know it has been in past times, past years to 19 Senator Mendez, because it seems to equate cost 20 savings as the reason to go ahead and ban 21 Medicaid funding for abortion, and we feel that 22 saving money is not the issue here, and actually 23 I -- I must correct the thinking on this because 2132 1 it is factually wrong. 2 The -- the fact is that child 3 birth is much more expensive than abortion. A 4 pregnant woman on Medicaid -- and we're talking 5 about Medicaid women -- if forced to carry to 6 term, would be eligible for, one, fully funded 7 prenatal care; two, labor and delivery services, 8 and three, medical care for the infant. We are 9 talking many thousands of dollars and, on 10 Medicaid, the average cost of a Medicaid 11 abortion is like $315. 12 So we certainly shouldn't look at 13 this any way as a cost saver. It is perhaps 14 saving the health and well-being of the mother, 15 but cost should not be a factor here and indeed 16 the -- the figures that are available would show 17 that it is much more costly for a Medicaid woman 18 to carry to full term. 19 There is another new factor here 20 and this we have not discussed before because it 21 was not the case in prior years and, of course, 22 I believe you know what I'm talking about and 23 I'm talking about a new president. President 2133 1 Clinton is committed to a woman's constitutional 2 right to choice and to support for poor women to 3 have this same right to choice, and we expect 4 that he will ask Congress to drop the 5 16-year-old Hyde amendment which bans, as you 6 know, federal financing for abortions under 7 Medicaid. 8 When this was passed in 1976, 9 many states said that, if the fed's -- if the 10 federal government won't offer payment for 11 funding for abortion, then we're not going to, 12 and today only 12 states do fund Medicaid 13 abortions, but if the Hyde amendment was 14 repealed, then we would see funding by the 15 federal government again and that is what we 16 expect to see. 17 THE PRESIDENT: Senator 18 Oppenheimer, I understand that Senator Mendez 19 wanted to ask a question. Would you yield to 20 her to ask a question? 21 SENATOR OPPENHEIMER: Yes, sure, 22 Senator Mendez. 23 SENATOR MENDEZ: Yes, excuse me, 2134 1 Senator Oppenheimer. You just mentioned my name 2 in one of your statements, and I want some 3 clarification on it. It's done for the record 4 so I need some clarification on it. I missed 5 what you said, but I'm most interested in 6 knowing. 7 SENATOR OPPENHEIMER: I'm happy 8 to join with a statement that you made two -- a 9 couple of times in past years, that we shouldn't 10 equate the taking -- or abortion for Medicaid 11 women with the cost because - 12 SENATOR MENDEZ: We should not. 13 SENATOR OPPENHEIMER: Because 14 money savings is not the issue here. 15 SENATOR MENDEZ: That we should 16 not. 17 SENATOR OPPENHEIMER: Yes, that 18 money savings -- I'm concurring with what you 19 were saying. 20 SENATOR MENDEZ: I wanted some 21 clarification. I've always said, as you know, 22 that the true choice for a woman who is poor 23 must be medical funds for abortion and prenatal 2135 1 care. 2 SENATOR OPPENHEIMER: Exactly. 3 SENATOR MENDEZ: Thank you. 4 SENATOR OPPENHEIMER: I concur 5 with you completely. 6 Now, the $64 question, I guess, 7 the $64,000 question concerns health care 8 reform, and it is conceivable, no pun intended, 9 that we may see reproductive health and abortion 10 services included in the basic benefit package 11 that is being talked about in health care reform 12 and also in the Medicaid programs which would 13 make the Hyde amendment moot. But that is the 14 $64,000 question, where health care will be 15 going for our nation. 16 Let me conclude by saying that, 17 for 22 years now, New York has respected -- New 18 York State has respected the civil rights of our 19 poorest women, permitting equal choice to those 20 who can pay for medical services and those who 21 cannot, and it has dramatically improved women's 22 health in our state and their welfare. 23 Now, we are not discussing here 2136 1 the pros and the cons of abortion. Legal 2 abortion is the law in our nation, and it is 3 deemed a constitutionally protected matter of 4 privacy, and women must have the opportunity to 5 exercise their -- their legal right, and I 6 believe that's -- well, I believe that it's 7 their basic right to -- to health care. But 8 women must not go back to seeking unsafe 9 abortions and risking their lives and their 10 health, and women should not be discriminated 11 against because of their economic status in 12 life. 13 New York never has discriminated 14 and New York, I hope, never will, and I would 15 urge all my colleagues to support the 16 continuation of this Medicaid funding for poor 17 women in New York State. 18 Thank you, Mr. President. 19 SENATOR MARCHI: Mr. President. 20 THE PRESIDENT: Senator Marchi. 21 SENATOR MARCHI: I kind of 22 anticipated that the Hope case would -- would 23 come into the dialogue that is being conducted 2137 1 today. 2 Senator Maltese, I believe, made 3 a strong and persuasive argument on a question 4 that is very difficult to debate because it all 5 depends on your starting point and where your 6 position originates and -- and whether there 7 will ever be a reconciliation, I really don't 8 know. 9 But we do have a very serious 10 problem on the question of constitutional 11 revision which seeks to intrude and subvert the 12 claimed intent of the New York State 13 Legislature, and I cite this not only to 14 illustrate what's going on in the instant issue, 15 but in its broad application in so many other 16 fields, it does raise very serious problems. 17 Who is enacting legislation here? 18 Is it the state? Is it the executive and the 19 legis... and the Governor that enact 20 legislation, or are we getting now a massive 21 presence by the allegation that there's been 22 under-inclusion and, very thoughtfully, the 23 under-inclusion is supplanted by language. 2138 1 The Hope case is a very relevant 2 case, and it should be -- it should be looked at 3 because the federal government had put -- had 4 initiated a program to -- under their federal 5 Medicaid program, to extend funding to pregnant 6 women and their children if they were within the 7 100th to 180th percentile above the poverty line 8 and this was to take care of mothers and their 9 children, and also all women who were in the 10 process, so that there was even a flow of -- of 11 assistance provided by the state to those 12 mothers, to the exclusion of the abortional 13 aspects itself. 14 Now, that -- the question has 15 come up that somehow the court could supply the 16 intent which we failed to supply. Failed to 17 supply because we didn't know what we were 18 doing? I don't know. 19 Senator Oppenheimer, you -- you 20 are one of 20 members in the Legislature - 21 there were two Republican members and you were 22 very forthright about this because you are 23 quoted and your position is right out there, and 2139 1 you have quoted exactly how you felt, so that I 2 would characterize your statement as being 3 coherent and logical in terms of their 4 articulation. You did it very thoughtfully. 5 But there is an amicus brief, 6 advanced as representative of the Legislature. 7 Now, I just wonder if it is representative of 8 the Legislature. I would wonder. I don't -- I 9 don't like to ask each member, but I can ask 10 you, Senator, and I don't want to ask others 11 perhaps, were you specifically requested or did 12 you specifically request the Whiteman firm to 13 represent you personally as an amicus, or was it 14 collectively in the name of legislators in the 15 collegial sense, or just what was the nature of 16 that -- of that representation by the Whiteman 17 firm in this case? 18 SENATOR OPPENHEIMER: I don't 19 believe, Senator Marchi, that the intent is to 20 represent the Legislature. The intent was to 21 get Senators and Assembly people who concurred 22 in my contention. 23 SENATOR MARCHI: But you all had 2140 1 to sign on. 2 SENATOR OPPENHEIMER: Yes. 3 SENATOR MARCHI: You all had to 4 verify signatures. 5 SENATOR OPPENHEIMER: Yes. While 6 I was talking to organizers for the Senate 7 putting out a notice of what the case would be 8 about, it was being appealed, and we ended up 9 with, I'm not sure how many signatures. There 10 were many more Assembly people that were 11 concerned with this matter too and chose to sign 12 on to the amicus brief. 13 SENATOR MARCHI: Well, you were 14 -- I mean, well, you were very forthright about 15 it because your testimony appears in the brief 16 that they follow -- filed. 17 SENATOR OPPENHEIMER: We were 18 approached by -- to organize in the Legislature 19 those legislators who were of a like mind by the 20 New York Civil Liberties Union who was then 21 trying to organize other groups in support of 22 their case. 23 SENATOR MARCHI: New York Civil 2141 1 Liberties Union. Well, were the services 2 provided by the Whiteman firm on a pro bono 3 basis? 4 SENATOR OPPENHEIMER: I believe 5 that was - 6 SENATOR CONNOR: Privilege. 7 SENATOR MARCHI: Well, if you 8 don't know. 9 SENATOR OPPENHEIMER: I'm going 10 to defer to my colleague. At the present time, 11 I am not certain of the arrangement, and I can 12 let you know at some time. 13 SENATOR MARCHI: Well, you don't 14 know personally whether that -- whether their 15 services were provided pro bono. 16 SENATOR OPPENHEIMER: I'm not 17 sure. 18 SENATOR MARCHI: Whether they 19 were provided to the New York Civil Liberties 20 Union. 21 SENATOR OPPENHEIMER: I'm not 22 sure what the arrangement was. 23 SENATOR MARCHI: Well, thank 2142 1 you. Well, yeah. On the cover sheet, this is 2 the court, of course, James Lytle of counsel, 3 Carl F. Patka and Beth A. Bourassa, on the 4 brief, Whiteman, Osterman & Hanna, on behalf of 5 the New York State Legislature as amici curiae. 6 Well, I'm not going to go after 7 you over what the court said, but this is what 8 they -- this is what they represented, so I 9 assume that at some point Lytle thought he was 10 representing the New York State Legislature. 11 I don't think Senator Stafford 12 would -- would challenge my statement that the 13 funds certainly did not come from the Senate or 14 from any public funds. So I -- I don't know 15 where the funds came from if -- if, indeed, they 16 were provided or whether the Whiteman firm 17 performed this as -- on a pro bono basis. 18 SENATOR LEICHTER: Mr. 19 President. 20 SENATOR MARCHI: Yes, Senator. 21 SENATOR LEICHTER: Will Senator 22 Marchi yield? 23 SENATOR MARCHI: Yes, I will. 2143 1 SENATOR LEICHTER: Senator, have 2 you seen the caption of the action and have you 3 seen the amicus briefs? 4 SENATOR MARCHI: Oh, yes, I 5 have. 6 SENATOR LEICHTER: Right. And 7 was there anything in any amicus brief, Senator, 8 where representation was made by the Whiteman 9 firm or anybody else that they were 10 representing, quote, "the Legislature"? 11 SENATOR MARCHI: Well, I -- I 12 will say that I did speak to one Senator who 13 said he wasn't -- he knew about it, but knew 14 little else, and I was just wondering how these 15 names came. There were 60 in the Assembly and 16 then we had 20 over here. 17 SENATOR LEICHTER: Right. 18 SENATOR MARCHI: This was the 19 sentiment of the Legislature. Now, we have the 20 vote today, will indicate whether there is a - 21 SENATOR LEICHTER: Mr. 22 President. 23 SENATOR MARCHI: -- this kind of 2144 1 sentiment here today on the - 2 SENATOR LEICHTER: Mr. President, 3 would Senator Marchi yield to another question? 4 SENATOR MARCHI: Yes. 5 SENATOR LEICHTER: Senator, is it 6 not fairly clear if you look at all the papers 7 that were submitted to the court that a number 8 of legislators, and I was one, in their 9 individual capacity - 10 SENATOR MARCHI: You weren't 11 quoted up front. 12 SENATOR LEICHTER: May I just 13 finish my question? -- in their individual 14 capacity submitted their amicus brief which 15 we're entitled to do as you would have been 16 entitled to submit an amicus brief on the other 17 side, and isn't it clear that the court 18 mistakenly wrote about the Legislature when 19 there was no representation on the part of any 20 of the litigants. 21 SENATOR MARCHI: Well - 22 SENATOR LEICHTER: Or by any of 23 the amicus that they were representing the 2145 1 Legislature because indeed the Legislature was 2 not a party and under these circumstances could 3 not be to this lawsuit. 4 SENATOR MARCHI: Well, that -- I 5 accept that totally, Senator, as a forthright 6 and honest statement and descriptive of what 7 happened, but the court certainly assumed - 8 engaged in certain assumptions in making that 9 statement. 10 What's more importantly, when, in 11 the formulation of the decision, we find out the 12 role that under-inclusion is going to be playing 13 in the future, and I'm not -- I'm not limiting 14 myself to this. There are a number of issues 15 that are involved that -- that come across our 16 halls, and -- and if we are going to be 17 supplanted by -- by being charged with under 18 inclusion and they will conveniently provide and 19 fill in that gap, well, then we've introduced a 20 new element in lawmaking in the state of New 21 York and one which we all should individually 22 and collectively be very sensitized to. 23 This does not mean that you have 2146 1 to change any opinion because you're -- you have 2 the courage of your convictions on an issue, on 3 this issue or another issue, and you're entitled 4 to have them and vote the way -- I mean that's 5 the way -- that's the way legislation and that's 6 the way bills are enacted and programs put into 7 place. 8 Now, this -- in the Whiteman 9 brief, as legislative history of Chapter 584 10 demonstrates, the exclusion of medically neces 11 sary abortions from PCAP Medicaid for women 12 above the poverty line was highly controversial. 13 And he goes on to say, in quoting from another 14 case as descriptive of this one, this -- "The 15 court's task is to discern what course the 16 Legislature would have chosen if it had foreseen 17 our conclusion as to under-inclusiveness." 18 And I quote from the decision 19 itself: A trial court also properly determined 20 that the constitutional defect in PCAP would 21 best be remedied by expanding the ambit of the 22 program to include funding for medically 23 indicated abortion rather than voiding the law 2147 1 in its entirety, and it appears that this 2 alternative is consistent with the predominant 3 sentiment of the Legislature. 4 Now, how can they make an 5 assumption like that? How can the court do this? 6 To assume that we wanted to -- had we known, had 7 we known that these sentiments had been 8 articulated and had we had the benefit of the 9 Appellate Division's thinking and reasoning that 10 we would have changed our minds and provided and 11 filled in that gap. 12 I know what I was voting on. You 13 knew what you were voting on, and I quarrel with 14 no one if our votes contrasted. They didn't 15 contrast on this case, on this instant case of 16 Hope-Perales, but where they do, by God, you - 17 we all have to voice our conscience and our 18 judgment on these bills. 19 But can a court come along and 20 say after that, after the fact, had you known 21 what we know now and what we're thinking now as 22 to constitutionality, you would have voted 23 differently. 2148 1 Well, this -- this is the height 2 of nonsense and, if we accept this and we accept 3 it and there have been other instances, this 4 body will have to take and assume its 5 responsibility very seriously as to where we're 6 headed. 7 Judge Stanley Fuld, in the Delmar 8 Box case, 320 NY -- 309 NY 60, stated, Memoranda 9 on a bill written after its passage is not 10 indicative of its legislative intent by a 11 legislator, even though a legislator authored 12 it. This is Judge Fuld just a few years ago. 13 What are we going to do? Are we 14 going to be second-guessed on everything we pass 15 now and, if they don't like it, they'll under 16 include and put in everything they want? This is 17 not judicial temperament exerted and exemplified 18 in its pronunciation. This is a raw invasion of 19 our legislative prerogatives, and it goes beyond 20 this case. It goes beyond the arguments that we 21 are waging here today because, if we allow this 22 to take place, we will have retreated and 23 abandoned and, by our silence, consented to an 2149 1 arrogation to themselves of valuable legislative 2 powers, and I don't think there's any legislator 3 here who ascribes to that motive. All I see are 4 legislators who have had the courage to vote 5 their conviction regardless of how it -- how 6 popular or unpopular it may be with any single 7 member in this house; and that's the way it 8 should be. 9 I -- yes, the statement that it 10 appears with the alternative is consistent with 11 the predominant sentiment of the Legislature was 12 pure, pure guesswork on their part, not even 13 guesswork; it was just any decision at all. 14 I will say that Judge Ciparick 15 did recognize that the power of funding still 16 lies within the -- within the Legislature, and 17 Judge Ciparick was not attempting to preempt 18 that, because as was stated, it may ultimately 19 be their determination whether it will be funded 20 in accordance with this decision. 21 But where are we? We had other 22 examples of this, and at -- well, I won't go 23 into them now at this point. There are other 2150 1 cases that are directly relevant to an issue, 2 but I would rather see this bill be taken care 3 of, but I think -- I believe that we should be 4 examining the -- these cases very carefully as 5 they come up, and there will be people advanced 6 for our consideration for confirmation and that 7 the same careful scrutiny that they are pleading 8 for in Washington should be exercised in this 9 house if we are to retain control over our own 10 responsibilities, if we are going to be able to 11 discharge our responsibilities in a -- any kind 12 of competent manner, but if we're going to be - 13 if we're -- if we are going to have partners in 14 lawmaking and not settling constitutional 15 issues, then it's about time that we gave the 16 entire reviewing process a very serious look. 17 Senator, I will yield if you - 18 SENATOR OPPENHEIMER: Thank you. 19 I have a question for Senator Marchi. 20 I wonder if you have seen that, 21 on the first page of the amicus brief, it says 22 that a -- the amicus curia brief was submitted 23 in behalf of the parties and they mention the 2151 1 parties and they say at that point right on page 2 1, that it is members of the New York State 3 Legislature, it is not -- we are not speaking 4 for the Legislature. We are merely members of a 5 like mind who came together to submit the brief, 6 and so I was just wondering if you had seen that 7 on page 1. That just -- that doesn't suggest - 8 SENATOR MARCHI: Well, maybe it's 9 a product produced by -- just like a camel they 10 say was produced by a committee, and probably a 11 committee wrote on this and one side didn't know 12 what the other side was doing, but certainly in 13 the decision itself, they say this, what we're 14 doing -- we're sure that the Legislature would 15 have wanted us to do this had they known, had 16 they known what the -- what the constitutional 17 issues were involved; they would have preferred 18 to do it this way. 19 How do they know? Ask me at 20 least! My God! 21 SENATOR OPPENHEIMER: O.K. The 22 other question I would like to ask you, Senator 23 Marchi - 2152 1 SENATOR MARCHI: Yes. 2 SENATOR OPPENHEIMER: -- is, if 3 you recall at the time that you passed PCAP, at 4 that time, do you recall that abortion never 5 came into the discussion, that - 6 SENATOR MARCHI: That the -- that 7 we - 8 SENATOR OPPENHEIMER: That 9 abortion did not come into the discussion. 10 SENATOR MARCHI: Oh, yes. 11 SENATOR OPPENHEIMER: Because 12 myself and all the strong supporters of choice 13 felt that there was no way to move early 14 prenatal and early childhood health care if we 15 continued to push for the full panoply of 16 choices, so we decided to surrender the issue of 17 choice in order to get health care for the 18 pregnant mother -- woman, and for the early - 19 earliest years of childhood. 20 SENATOR MARCHI: Well, I mean 21 you're -- you were candid, you were honest and 22 forthright and aboveboard, and I would say that 23 there was not -- there wasn't any member of this 2153 1 body that was anything less than that, but to 2 have the court come in later and say there are 3 some who may have felt this way or that way and 4 then also say that had they known, they would 5 have -- the predominant sentiment was to do it 6 this way, then all our decisions become very 7 tentative. They rest on very insecure bases. 8 There is no foundation that it can rest 9 comfortably, when -- when they come in and say, 10 Oh, but for the circumstances, you would have 11 decided differently. 12 We decided on the basis of what 13 we knew and what we had and people may have had 14 various motives one way or the other in casting 15 the vote they did. You went on to explain it, 16 but -- but to say that -- well, the vote today 17 is going to tell you right away how we would 18 have voted so -- on the assumptions that they're 19 making here. I believe it will. 20 ACTING PRESIDENT FARLEY: Senator 21 Espada. 22 SENATOR ESPADA: Thank you, Mr. 23 President. I rise because we continue here in 2154 1 these chambers to define ourselves in ways that 2 I believe most legislators, most people of 3 conscience find reprehensible. 4 Senator Oppenheimer eloquently 5 went through the implications of selective 6 denial of funding. She went through how this 7 would create an impediment to the free exercise 8 of a woman's fundamental right to choose. 9 This also puts a penalty, though, 10 on poor pregnant women and it is a bit 11 surprising to have that happen, to have that 12 emanate from the voices that cry out against tax 13 increases, surcharges, fees of all types, 14 because this is the net result or one of the net 15 results is to create a financial hardship on 16 people that this Legislature has deemed to be 17 needy. 18 But we'll put moralizing aside 19 for a second, because I'd like to go through 20 this cycle. I'd like to go through what would 21 actually happen if this bill became law and if 22 indeed withdrawal of funding, Medicaid funding, 23 for these women. 2155 1 This bill is fraught with 2 hypocrisy and contradictions. You take a child 3 born in my district in the South Bronx. This 4 bill -- this body would push to give it birth, 5 push to bring it into life. Do you recognize, I 6 ask, do you recognize that it has no housing? Do 7 you recognize that it would have to wait three 8 or four years to get into public housing? Do you 9 recognize that, with regards to the education of 10 this child, Jonathan Kozel has called it "savage 11 inequality", that's what this child would have 12 to deal with, "savage inequality" in trying to 13 obtain a quality education. 14 Do you recognize for a moment 15 that it can't have a work ethic if it doesn't 16 have a job? This Legislature doesn't do enough, 17 in my view, to promote quality housing. In 18 fact, since I've been here what it has done, 19 what some of the supporters of this bill have 20 actually passed by this house is that this child 21 that we push to give life to, and its mother, 22 would wait outside a homeless shelter to get in 23 until -- and couldn't get in until such time as 2156 1 search warrants took place, until fingerprinting 2 took place. 3 Now, not only are they savage 4 inequalities, but there's a contradiction that 5 no one could uphold, that no court, any court, 6 would see through these -- this public mugging, 7 this legislative mugging, of constitutionality 8 rights. 9 Here today, we -- we look back at 10 Martin Luther King, Jr. Today, as always, I 11 look back at JFK, and each of these giants, 12 public servants, taught us that the manner in 13 which we treat those that are not as fortunate, 14 that are vulnerable, that are needy, define our 15 character, define what we're about, and I think 16 this bill does do that, and I ask all of you to 17 put the -- this game of what is popular 18 politically at any given time and look to have 19 deliberations that are based on an understanding 20 of equal access, that are based on the 21 understanding of equal protection regardless of 22 economic status. 23 I ask as you vote, to remember 2157 1 this day, to remember your own humanity, to be 2 fair. I ask that you vote against this bill. 3 Thank you, Mr. President. 4 THE PRESIDENT: Senator Spano. 5 SENATOR SPANO: Mr. President, 6 Senator Oppenheimer spoke earlier. She said 7 that we don't want to get involved in religious 8 battles today, and I have to admit to you that I 9 feel a little uncomfortable getting up here on 10 Palm Sunday discussing this issue, and it's one 11 that is -- is an emotional issue, one that 12 people on both sides of the aisle continue to 13 have some very strong opinions on and I, of 14 course, have the greatest amount of respect for 15 Senator Maltese and our colleagues who have 16 presented this to us today. We know that it's 17 an issue that is very, very important to them. 18 But there are other issues that 19 we are in the process of negotiating right now 20 to try to get included into this budget that may 21 give us the ammunition that we need to prevent 22 unwanted pregnancies in this state, and the 23 initiatives that have been presented to us by 2158 1 the Family Planning Advocates are excellent ones 2 and are positions that I hope ultimately will be 3 included as a part of the budget that will be 4 passed at some point over these next few hours. 5 But the important issue, and 6 notwithstanding the issues that were raised by 7 -- by Senator Oppenheimer about the constitu 8 tionality, the constitutionality, but the 9 important issue that New York State should 10 continue to stand as a beacon for reproductive 11 freedom for all women who live here. 12 It's one that we -- it's an issue 13 that all of us take very, very seriously. It's 14 one that I believe that on the issue of choice 15 that a woman -- that all women in this state 16 should be given the ability to make that 17 decision, and it's a decision that should rest 18 with her, with her family, with her spouse, with 19 her doctor, and with her own conscience, and 20 it's not a decision that we, and certainly I as 21 a person who will never have to make that 22 choice, should be standing here imposing our 23 beliefs on them. 2159 1 So I stand here today to -- to 2 hope that the issues that have been raised by 3 the Family Planning Advocates are included in 4 this budget, that we continue to do everything 5 that we can to prevent unwanted pregnancies in 6 this state, that we continue to fight against 7 adolescent pregnancies in this state and to 8 stand -- at the same time allow us to stand as 9 that beacon for reproductive freedom. 10 Thank you. 11 THE PRESIDENT: Senator Connor. 12 SENATOR CONNOR: Thank you, Mr. 13 President. 14 Now, this is an issue which 15 certainly everyone takes quite seriously. It's 16 not an issue that's a partisan one. It's a 17 matter of conscience and, over the years, I've 18 had a consistent position, but it is certainly 19 one that I review intellectually from time to 20 time. 21 To me, this bill, first of all, 22 has a lot more to do with economic discrimina 23 tion than it does with abortion. We put out a 2160 1 bill here that says the state of New York won't 2 put any money into reimbursement for abortional 3 services to poor women. The rationale is, "I 4 don't want my taxpayers' money, my money as a 5 taxpayer, used for something with which I 6 vehemently disagree, and which I feel is morally 7 wrong." 8 Yet, every two weeks the state of 9 New York pays the employer's share of the 10 medical insurance for its employees, for our 11 staffs, for our families, and those benefits do 12 include abortional services, so that for the 13 middle class who are our workers, our staffs, 14 the moral absolute seems to vanish, and we want 15 to exact our conscientious beliefs about 16 abortion on only the poor women in New York. 17 I think that's wrong. I think it 18 makes it an issue of economic discrimination, 19 not an issue about abortion. 20 Secondly, I think that, while - 21 and I certainly appreciate and share the 22 concerns of moral theology about abortion, 23 that's not a consensus position in New York 2161 1 State. It's not a position shared by other very 2 conscientious, very religious, very moral 3 thinkers in this state, leaders in this state, 4 religious leaders, ethical leaders, who don't 5 share that position, and that's their right in 6 this democracy. 7 We have a right to disagree over 8 this. We certainly have a right to disagree 9 over this, and we have a right to attempt to 10 persuade in an appropriate way each other about 11 the views, but that's a moral debate, that's a 12 theological debate; it's an ethical debate. We 13 are here to make, by law, the public policy of 14 the state of New York and that public policy is 15 supposed to enshrine the shared consensus value 16 of all of our citizens, and that's my competence 17 as an elected official. 18 My competence isn't to attempt to 19 tell someone what I think about abortion, I 20 agree or disagree with what someone else 21 thinks. We leave that to those leaders who lead 22 that debate on all sides of it. My competence 23 as a legislator is to make public policy and, in 2162 1 doing that, of course, I don't leave my 2 conscience at home. None of us leave our 3 conscience at home. But we do have to use our 4 judgment about what the best way to bring about 5 public policy is, and if my conscience says, 6 "Gee, I wish people didn't get abortions, 7 because that's very troubling," I have to 8 recognize that. 9 But then the next question is, as 10 a public official, what's the best way, what's 11 the best way to do that? And I submit to you 12 the best way to do that is not to deny poor 13 women the same choice which the courts have 14 guaranteed that other women have. The best way 15 to do that is not to make abortion illegal. 16 I don't believe that would work, 17 and I don't believe that this bill, even if you 18 cut off reimbursement to poor women, I don't 19 think women who -- who are faced with that 20 difficult choice and make that choice to end the 21 pregnancy, and that's a choice made -- I have to 22 believe that's a choice made in desperation. 23 That's not a choice someone takes lightly. I 2163 1 can't speak to that, I'm not a woman, but I 2 certainly don't believe anyone makes that choice 3 lightly. I don't think people make it 4 frivolously. I think people make it in 5 desperation, out of a need, a desperate need, 6 not to bear a child that they can't provide for, 7 for a variety of reasons. 8 And, in that desperation, I 9 submit to you that those poor women will get an 10 abortion. Desperate women before Roe v. Wade, 11 desperate women got abortions. They weren't 12 necessarily safe; in fact in many, many cases 13 they were not safe, but they, faced with that 14 choice, carried it out. 15 So I don't believe this bill -- I 16 believe it's designed to make a political 17 statement. I don't believe it's -- will 18 accomplish any purpose of ending abortion. It 19 will merely tell the poor women in New York 20 State, We don't think you ought to have the same 21 right as our staff members, as our family 22 members, as our employees, in the state of New 23 York; and I think that's poor public policy, and 2164 1 I'm opposed to it. I think it's wrong. It's 2 wrong for the variety of reasons that I've 3 outlined. 4 THE PRESIDENT: Senator 5 Dollinger. 6 SENATOR DOLLINGER: Thank you, 7 Mr. President. 8 I was going to ask Senator Spano 9 a question about what he meant by "a few hours." 10 We were going to pass a budget in a few hours, 11 but he was one of those who laughed most 12 heartily when I asked Senator Present what the 13 outside time limit was last week; so I decided 14 not to ask the question. 15 I apologize for the frivolity to 16 open this debate, Mr. President, but I want to 17 address first and foremost the points raised by 18 my colleague, Senator Marchi, with respect to 19 the judicial power in this state and the 20 exercise of that power. 21 It seems to me that the railing 22 against the judicial power in this case is 23 misplaced, Senator Marchi, because the court, in 2165 1 this instance, is recognizing a constitutional 2 principle, a principle that goes beyond the 3 power that's present in this chamber, not the 4 legislative power, the power instead that 5 derives from the people, "we the people" who 6 formed the union, "we the people" who formed the 7 state. 8 It was the people who exercised 9 the constitutional power and, in fact, in the 10 Hope case, the Appellate Division recognized 11 that the people of this state, through their due 12 process clause, had wanted to ensure that the 13 issue of access to a fundamental right would be 14 preserved for everyone. 15 The whole point of the 16 Constitution is, it's designed to protect the 17 people of this state from us, from acting in a 18 way that interferes with their constitutional 19 rights. 20 How do we handle the problem of 21 under-inclusion that you so properly point out? 22 It seems to me, and I would again defer to your 23 expertise in the area of law, but look at the 2166 1 Carolean Products case in the United States 2 Supreme Court, 1934, when the issue of the 3 judicial power was being developed in the wake 4 of the New Deal. Remember the little footnote 5 in Carolean Products from Justice Harlan in 6 which he said, There has to be a balance, a 7 constitutional power on the part of the court 8 because the one principle that the Constitution 9 stands for is that it's designed to protect 10 those who will never have access to a political 11 majority. They will never be in a position 12 where they will be able to pass legislation. 13 They will always be in the minority. But we, as 14 a constitutional people, recognize that we would 15 protect that minority from the power of the 16 majority. 17 In this case, what did the court 18 do? It determined that there was under-inclusion 19 and it said, How are we going to solve the 20 problem of under-inclusion? How are we going to 21 rectify it? They used the judicial power, that 22 coordinated power of government, with the same 23 power that exists in this body but on another 2167 1 parallel track, and they simply said, we're 2 going to exercise that judicial power to achieve 3 the goal of the Constitution, to make sure that 4 the rights of the minority that we, the judicial 5 branch of government, are the sole protector of, 6 the minority cannot go to the Legislature and 7 ask for that protection. They don't have the 8 political power to do it. Instead, the 9 Constitution protects them and it has to be 10 vindicated by a common law court. That's the 11 power of the judiciary to protect those who are 12 defenseless from the power of the majority. 13 So it was done in this case. 14 This is a case about a fundamental right that is 15 protected from intrusion by any legislative 16 power or legislative majority. It seems to me 17 that that's the critical issue that we stand 18 here to debate today. I join with my colleagues, 19 Senator Connor, Senator Oppenheimer, Senator 20 Espada and, yes, Senator Spano, in the right - 21 in articulating the right that is at issue in 22 this case. 23 I'd simply point out that we can 2168 1 not leave the constitutional rights of the 2 people of this state to a means test, to simply 3 a test of their wealth before they have the 4 right to exercise a fundamentally constitution 5 ally protected right given to them by the 6 people, not given to them by the Legislature. 7 If we enact a means test, what 8 other rights will we create a means test for? 9 We'll simply restrict everyone's access to 10 fundamental rights on the basis of their pocket 11 book. It seems to me that that flies in the 12 face of our constitutional principles. 13 I'd close with just one comment 14 on substance. This is a simple issue for me. 15 It's purely and simply one of fairness and 16 access to health care. The message that we 17 would send by enacting this is that we don't 18 believe in fairness, that we believe we ought to 19 have a two-tiered system of access to health 20 care. 21 Nothing, in my judgment, strikes 22 more fundamentally at the principle of fairness 23 and, frankly, at the principle of constitutional 2169 1 fairness that we should all recognize, not just 2 through the due process clause, but that we 3 ought to recognize in the pronouncements of this 4 Legislature as well. 5 Mr. President, I'm opposed. 6 ACTING PRESIDENT FARLEY: Senator 7 Leichter. 8 SENATOR LEICHTER: Yes. Mr. 9 President, what strikes me about this bill, and 10 it's a matter that Senator Espada referred to, 11 is the solicitude and even humanity that the 12 sponsor of this measure and the supporters of 13 this measure show for the fetus or, as they 14 refer to it, the unborn baby, and I know it's 15 genuine. It's real humanity, real concern, but 16 somehow when that fetus is carried to term, we 17 don't find that solicitude any more. That 18 humanity that was expressed by Senator Maltese 19 when he talks about the fetus doesn't seem to 20 carry over after what many of us consider to be 21 life, which is after birth, occurs. 22 So we find that Senator Larkin 23 doesn't want to provide housing to the mother 2170 1 and the baby until there's a warrant check. We 2 find Senator Holland doesn't want to provide 3 benefits until the mother is fingerprinted, and 4 I assume under his bill the baby would have to 5 be fingerprinted too. 6 We find that Senator Marino 7 doesn't want to provide medical care or at least 8 a sufficient level of Medicare that most of us 9 think is necessary for that baby that's now 10 born, and for the mother. Senator Kuhl wants to 11 reduce the housing allowance. The Majority here 12 wants to reduce the social service benefits, the 13 welfare benefit. 14 I just say to you, where is your 15 concern for all of those poor infants that are 16 born? I don't see it. I see the measures that I 17 referred to, and Senator Espada made that point 18 too, particularly in the district that he 19 represents. 20 I think, as Senator Dollinger 21 rightly said -- yeah, I'll yield. 22 SENATOR MARCHI: Mr. President, 23 would the Senator yield for a question? 2171 1 SENATOR LEICHTER: Yes. 2 SENATOR MARCHI: I -- on the 3 question of the -- you seem to throw a shadow or 4 a cloud over the efforts that were made to 5 provide as much medical care to face that 6 problem, and I was just curious whether you had 7 read the dissenting opinion that the presiding 8 justice of the First Department, Francis Murphy, 9 made where in many ways he did not -- it was not 10 a strong dissent; it was not a strong dissent 11 but he did advance the fact that, under the 12 provisions that existed in that act, it did 13 provide substantial services even to women who, 14 short of the abortional procedure itself, in 15 other words, all of the medical services were 16 available to that person, and I was just 17 wondering whether you had read the minority 18 opinion of Judge Murphy. 19 SENATOR LEICHTER: Senator, I - 20 I -- I did. I don't know what relevance it 21 really has to the point that I was trying to 22 make, nor am I that certain that it does us any 23 -- it benefits us at all to revisit the bill 2172 1 providing prenatal care that we passed here, and 2 we -- we all know that some of us who felt very 3 strongly that that bill was flawed because it 4 didn't allow counseling on abortion, neverthe 5 less voted for it because we thought it was so 6 important to provide that prenatal care. 7 And, Senator Marchi, as you 8 remember, the Majority in this house, maybe not 9 every member but the Majority held that bill 10 up. I think it took -- was two years or maybe 11 even longer until the state of New York availed 12 itself for women who needed these services 13 because, once again, people wanted to make a 14 statement on abortion. 15 And let me say, Senator, I have 16 the greatest respect for the position, for you. 17 I -- and I understand your position, and I 18 respect it as I do Senator Maltese. I know it 19 flows from a deep felt moral conviction, but I 20 think the point that we're making here is that 21 we don't feel that it is fair to debate the 22 issue of abortion in terms of taking away from 23 poor women services that are available to other 2173 1 women and services that flow as a constitutional 2 right. 3 Now, we can debate the issue of 4 abortion. We can respect your position, as I 5 do, knowing where it comes from, but I don't 6 think that we ought to find these sort of bills, 7 a measure such as this one, trying to take away 8 Medicaid funding, holding up a bill on prenatal 9 services because you wish to reaffirm your 10 position on abortion. 11 SENATOR MARCHI: Well, I -- Mr. 12 President, I -- in response, I have introduced 13 in the past bills that just limit it to people 14 who are employed by the Legislature, so that 15 this is -- this is a -- as Senator Connor 16 pointed out, a position. I think it articulates 17 a position. It doesn't go very far beyond that 18 for reasons that he mentioned, and I think they 19 were perfectly valid reasons. 20 But this is -- this is not the 21 forum to -- to inject a fill-in, to fill in what 22 they feel is a void, and the Legislature 23 addressed it and it just puts into perspective 2174 1 how this whole issue along with a lot of other 2 social issues that are unrelated to this 3 procedure, are impacted by -- by events and by 4 what the fed's are doing, and I know Senator 5 Dollinger made the argument that this is sort of 6 a common law right, common law interpretation of 7 constitutional rights. 8 But we are still -- there are 9 still seven persons looking at this and there is 10 -- there is a -- there is an arena for 11 constitutional issues, and there are -- there is 12 an arena for programmatic issues, and you're 13 addressing it now; so I can't argue with you on 14 this. I mean that's your position; I respect 15 it. I feel otherwise, but we -- we have to be 16 very, very solicitous about deeding over that 17 power that we have here or in any legislative 18 body when we do it via the route of 19 under-inclusion, by judges, some years later. 20 SENATOR LEICHTER: Senator, I - 21 I understand your point and, in that sense, 22 there's some agreement between you and me, 23 because I don't want to debate it in terms of 2175 1 whether the -- the recent decision by the 2 Appellate Division in the Perales case or other 3 decisions require that we provide that medical 4 service. Maybe it does, and it's a belief that 5 is consistent or would be a decision would be 6 consistent with my belief. 7 But I agree, I don't think that's 8 the issue here today. The issue, as I see it, 9 was really stated in terms of whether we wish to 10 make or those people who support this bill and 11 who are against abortion wish to deny poor women 12 a service and a right that is available to all 13 other women, and I think that's the point; and 14 the other argument that I wish to make is that I 15 think it's unfortunate at every opportunity that 16 the anti-choice people that you raise these sort 17 of -- that you express your opinion in these 18 sort of bills because it inevitably results in 19 either creating a two-tiered system of health 20 care, discriminates against poor women, and so 21 on, and it's in that sense that I wish to 22 consider your bill and, as I said earlier, it 23 seems to me, frankly, there's an inconsistency 2176 1 among the supporters for this measure when you 2 take a look at all the measures they put forward 3 which seek to deny services and benefits to poor 4 people, to infants that are born after 5 expressing this great solicitude for the, quote, 6 "unborn baby," unquote. 7 Thank you. 8 THE PRESIDENT: Senator 9 Montgomery. 10 SENATOR MONTGOMERY: Yes. Thank 11 you, Mr. President. 12 I just want to speak very 13 briefly. Many of the comments that have been 14 made have expressed my sentiment already, but 15 I'd just like to speak specifically to Senator 16 Maltese who quotes as one of his key support 17 groups the Nurses for Life and, Senator Maltese, 18 I have also spoken with the Nurses for Life. 19 They've spoken to me, and it's very interesting 20 that, while they support legislation such as 21 this, they are moot on issues of health 22 education for young people, school-based health 23 programs and services, condom availability for 2177 1 minors, and the availability of reproductive 2 counseling. 3 So I find it quite a 4 contradiction that this group supports this 5 legislation which would essentially restrict the 6 availability of reproductive services, full re 7 productive services to certain women, poor women 8 in particular, while at the same time they don't 9 want or they at least are not advocating for or 10 supporting or talking about the availability for 11 education services, health education, sex 12 education and other related services that would 13 help particularly young women avoid this problem 14 of having an unwanted pregnancy, and I'm not 15 assuming that all of the kind of pregnancies 16 that you are trying to address are necessarily 17 unwanted for those reasons, but certainly it 18 seems to me that, in the least, we ought to be 19 looking for preventive services. 20 I have lobbied, and I know that 21 Senator Tully had a bill last session that was 22 killed in the middle of the night and it's my 23 understanding that it was killed by groups like 2178 1 Nurses for Life and others who opposed that 2 legislation, because it would provide re 3 productive health counseling and services to 4 young women, and I think that is a particular 5 insult to this body that seeks to provide health 6 services to young people that we can not get 7 legislation passed because those groups like 8 Nurses for Life and others oppose that 9 legislation. 10 I just want to speak to Senator 11 Marchi. I'm very surprised and shocked that the 12 Senator takes this position regarding the 13 court's decision. I certainly was also part of 14 that brief and make no apology for it, because 15 we do have a three-branch government political 16 process, and the judiciary often deliberates and 17 takes positions opposite to the legislative 18 branch and/or even the executive branch; so I 19 don't believe that is an unusual occurrence, and 20 we also sometimes take positions that opposes 21 the other branches, and it was my understanding 22 that we have that right and they have that 23 right. That is the - 2179 1 SENATOR MARCHI: Point of order, 2 Mr. President. 3 SENATOR MONTGOMERY: -- balance of 4 power. 5 SENATOR MARCHI: Point of order. 6 SENATOR MONTGOMERY: Am I not to 7 be continued? 8 ACTING PRESIDENT FARLEY: Senator 9 Marchi, what is your point of order? 10 SENATOR MARCHI: My point of 11 order is only to say that I have the greatest 12 respect for her, and I do not begrudge you any 13 statement that you wish to make. I know it's 14 with sincerity. 15 SENATOR MONTGOMERY: Thank you. 16 I would just -- my point was, Mr. President, 17 that it is in many instances where the court has 18 revisited itself as in the Plessy vs. Ferguson 19 case, where eventually the court revisited and 20 changed -- reversed its own decision. 21 The Congress has very often been 22 the last point, particularly in the area of 23 civil rights, when the court has not acted. The 2180 1 court has acted in many instances when Congress 2 has not, so that this is, it seems to me, a very 3 normal process in the course of reaching 4 decisions, and I am not surprised, and I 5 certainly welcome the fact that the -- the 6 judiciary decision was different from ours 7 because I believe that it is right to protect 8 the constitutional right of every woman or every 9 individual to have equal access to public 10 services. 11 My last comment is regarding the 12 money. I think that Senator Oppenheimer was 13 absolutely correct in that the cost of -- cost 14 to society of maintaining children whose parents 15 are unable or unwilling or incapable of caring 16 for them is astronomical, and until we are able 17 to make sure that the services that are 18 necessary to make -- make it possible for young 19 people to realize a full and complete life, we 20 should not be encouraging, in fact mandating, 21 that unwanted children or children who should 22 otherwise not have to suffer such consequences, 23 we should not be mandating that they be forced 2181 1 to. 2 So for those and the many reasons 3 discussed here today, I wish that the 4 Legislature would see in its wisdom and vision 5 to reject this legislation, which as far as I 6 can determine, based on recent court decisions, 7 might even be unconstitutional on its face. 8 Thank you, Mr. President. 9 THE PRESIDENT: Senator Nolan, 10 did you wish to be heard? Senator Nolan. 11 SENATOR NOLAN: Yes, Mr. 12 Chairman. 13 Interestingly enough, some people 14 talk about poor people, and I understand there's 15 no question that the issue in this bill is even 16 more difficult than the issue of abortion 17 itself, because the fact of the matter is that, 18 unfortunately, Roe v. Wade is the law of the 19 land and, in fact, that's what makes this issue 20 itself more difficult because obviously people 21 are affected adversely by this, but that on the 22 other hand, if you come to the conclusion that 23 abortion is wrong, then there certainly is no 2182 1 way under any circumstances that you can support 2 this bill, even though it is a more difficult 3 overall issue than the subject of abortion 4 itself. 5 It's interesting, and I've said 6 this on the floor of the Senate, on many other 7 occasions, my term in the Senate, I think I 8 represent a district that ranges from poor areas 9 in the southern end of Albany and the northern 10 end of Albany to wealthy people who live in 11 Loudonville, and other areas of Albany County, 12 and it's interesting, more people vote in my 13 district than any other Senate District in this 14 state. 15 So obviously the people are very 16 interested in their government, and the fact of 17 the matter is I've never had either a person or 18 a group of people who represent themselves as 19 poor people coming to lobby me on the subject of 20 abortion. Now, some people will say, Well, 21 that's because poor people don't have time to 22 come and talk about the subject. Well, that's 23 baloney, because I've had lots and lots and lots 2183 1 of poor people come into my office and talk to 2 me about welfare, talk to me about civil rights, 3 talk to me about a lot of issues that affect the 4 poor, and I've been to many, many meetings in 5 communities, out in the community where people 6 talk about a lot of issues, and I'm particularly 7 talking about poor areas. The people that tend 8 to come and talk to me about abortion in the ten 9 years -- ten terms that I've been in the Senate 10 tend to be wealthy people, upper middle class 11 people, claiming that they represent the poor 12 and yet those same people are not the people 13 that are concerned about the issues that really 14 affect the poor so much -- food, clothing, 15 welfare, and all of the other issues that we 16 know are so important to poor people. 17 Education, the most -- single 18 most important issue in terms of poor people, if 19 poor people are going to come out of the ghetto, 20 so to speak, education certainly is the number 21 one priority in the sense of making sure that 22 our poor people are educated so that they 23 understand and are able to move forward in 2184 1 society, that they're able to rear their 2 children for a better life, and so on. 3 And, you know, we talk about poor 4 people. I mean Senator Montgomery certainly is 5 a good friend of mine, and I respect her a lot 6 and so on, but you know, throughout the history 7 of this country, the country is replete with 8 people who have come out of poor areas and who 9 are very poor and raised in poverty themselves 10 and have gone on to the highest levels of -- of 11 fame, and et cetera, in this country. 12 I remember reading back in the 13 1960s an article by Dan Walker, a columnist in 14 the DAILY NEWS, who wrote a column about poor 15 people and how they -- certain particular poor 16 people, how they came out of abject poverty and 17 rose to great heights, and he pointed out that 18 within one five-year period, I believe, in the 19 Lower East Side of New York, which was then the 20 ghetto area of New York City in the early 1900s, 21 came Alfred E. Smith, who became a great 22 Governor of this state, came Jimmy Walker, who 23 became mayor of New York, came Cardinal 2185 1 Mundelein and Cardinal Hayes, who were princes 2 of the Catholic Church, came Irving Berlin and 3 Eddie Cantor, who certainly went on and became 4 legends in their own lifetime. And so it goes. 5 People -- I noticed there was an 6 article in the DAILY NEWS today about General 7 Powell, who the Republicans are talking about 8 the possibility of running for Governor in 1994, 9 and if you look at his background, he came from 10 Jamaica, I believe, and came to this country and 11 certainly didn't have the benefit that a lot of 12 us in this chamber have, but yet was able to 13 become a very famous and powerful person in this 14 country. 15 So I don't think we should 16 deprive anybody of -- of the right to live, and 17 we talk about the right of women to choose, but 18 how about the right of the unborn to choose 19 their life? 20 Now, Senator Oppenheimer, I'd 21 like to ask you a question if you would yield, 22 and this is something that really bothers me 23 deeply. I've done a lot of reading on this 2186 1 subject, and the fact of the matter is every 2 statistic that I've been able to read shows that 3 the United States of America has by far the 4 highest abortion rate of any country in the 5 western world, five and six times as great as 6 many of the countries in Europe, in South 7 America, and so on, and can you explain to me, 8 please, why this country is -- that we have 9 become so morally decadent in this country? 10 SENATOR OPPENHEIMER: No. Sadly, 11 your facts are correct, Senator Nolan, and I 12 think we would have to look at what was said by 13 Senator Montgomery earlier. This nation has a 14 peculiar bent. Maybe it's because of our 15 Puritan beginnings, and it has a Puritanical 16 philosophy which is not broadly accepted in the 17 rest of the world. 18 The rest of the world, as I would 19 say almost every citizen and certainly woman in 20 this country, would far prefer for this abortion 21 issue to go away. But what do you have to do to 22 make it go away? You have to offer education to 23 youngsters, family planning education, and it 2187 1 should preferably start in elementary school 2 with what is responsibility. These issues that 3 are brought up in the broad context don't deal 4 with just what contraception should you use. It 5 deals with a whole concept of what is a family 6 and what is responsibility, and what do you do 7 when you're a father? Does that mean that you 8 just bear a child and walk away? 9 These are the major issues that 10 are not tackled in our society, and we have the 11 most ridiculous array of programs on -- on 12 public television which seem to laud sexuality 13 and sensuality, and you see Calvin Klein jeans 14 with some young babe, you know, rear end in, you 15 know, the posterior of the person is smack up 16 against the screen. I mean it's ridiculous. 17 What are we telling them? We are 18 telling our youngsters that sexuality is good. 19 Sensuality, it doesn't matter if you have 20 relationships that are serious just for its own 21 end, this is the way you should dress and this 22 is what our advertising says is cool, and then 23 on the other hand, we're not offering in our 2188 1 schools the responsible choice that should be 2 made when you decide to have intimate 3 relationships. 4 Indeed, when we talk about facing 5 society as it is today and we know that our 6 youngsters, 75 percent of our youngsters coming 7 out of high school have had intercourse, well, 8 if you're not offering -- if the family planning 9 and the kind of general responsible behavior we 10 would like to see from our youngsters, then for 11 pity sake, offer them the alternative which is 12 how do you prevent pregnancy? 13 You do it with Norplant in your 14 arm or you do it with taking -- what's the pill? 15 "the pill". So you have do it through other 16 methods of contraception. We just simply don't 17 offer the choices, the responsible choices or 18 the logical medical choices that are out there, 19 and it is not that youngsters around the world 20 are being celibate. We know that isn't true, 21 but they just have a much more responsible 22 education and health system than we have here. 23 ACTING PRESIDENT FARLEY: Senator 2189 1 Nolan, are you finished? O.K. Senator Tully, 2 you're next on the list. 3 SENATOR TULLY: Thank you, Mr. 4 President. 5 In connection with the bill 6 before us, Senator Marchi correctly raised the 7 Court of Appeals decision in the Hope case and 8 the question of legislative intent as it relates 9 to PCAP legislation as we know it today. 10 As the sponsor of this legisla 11 tion and involved in three-way negotiations, I 12 want to make it clear that the legislative in 13 tent at that time had absolutely nothing to do 14 with the question of abortion, that we were 15 dealing with prenatal care, which clearly 16 implies the birth of a child, and abortion was 17 never discussed. 18 We were trying to provide 19 services to those most in need in the prenatal 20 area, something that had been attempted to be 21 negotiated for years and years and was not 22 concluded until last year, and that issue was 23 never discussed. 2190 1 ACTING PRESIDENT FARLEY: Senator 2 Smith. 3 SENATOR SMITH: Thank you, Mr. 4 President. 5 I'm very pleased this year that 6 we are joined by so many new voices but I'm 7 greatly saddened by some of the remarks that my 8 colleague, Senator Nolan, made. 9 Let me explain to you something 10 about poor women. Having come from a poor 11 community and having seen poverty first hand, 12 poor women, and especially minority women, do 13 not talk openly about sex or about abortions and 14 you will not find them going out to advocate. 15 The Puerto Rican/Latino woman is 16 usually a home body. The African-American 17 female is involved in the home, and these are 18 things that they don't even talk to their 19 husbands about, more or less some strange male. 20 And I'm saddened to hear that you 21 discuss all of these great men who rose up out 22 of poverty, but this issue is about women, and I 23 didn't hear you mention one woman. 2191 1 There's seven women on this side 2 of the aisle, and I'm pleased that we are in 3 accord on this issue, and I dare say that all of 4 these males in this room have ever experienced 5 in any way what a woman has to go through in 6 this country and especially in this state, and I 7 was very pleased to hear my colleague, Senator 8 Espada, espouse some of the things that we sit 9 here and vote for, that deprive women of their 10 rights in this state; and once again, as I've 11 said for the five years that I've been here, 12 this bill is discriminatory. It discriminates 13 against the rights of women. 14 And I know that my colleague, 15 Senator Maltese, is as impassioned about this as 16 I am, and we have the privilege of sharing - 17 our districts abut, and I know many of the women 18 in his district, and I've had the opportunity to 19 speak with many of them, and I'm a member of 20 Catholics for Free Choice, and through that 21 organization we've contacted many women in his 22 district, and I'm proud to stand here and say 23 that most of them agree with my position, and I 2192 1 think that there's something else that maybe 2 many of you males should do. 3 Go back and talk with those women 4 in your district because we're sent here to 5 represent those constituents, not to represent 6 our own views. Therefore, I vote in the 7 negative. 8 ACTING PRESIDENT FARLEY: Senator 9 Padavan. 10 SENATOR PADAVAN: Thank you, Mr. 11 President. 12 Senator Montgomery was a little 13 bit exercised about Senator Marchi's comments 14 and that probably is because you hadn't done 15 what I hadn't done at that moment in time and 16 that is read the actual statement in this 17 decision which I think was the primary thrust of 18 Senator Marchi's comments. 19 If you read the covering page 20 transmitted to us by the Appellate Division, 21 they make reference directly to a brief, and I'm 22 quoting, On behalf of the New York State 23 Legislature -- that's you, me and everybody in 2193 1 both houses, and then if you read the decision 2 itself, one sentence I will repeat, not that 3 whole paragraph -- And it appears that this 4 alternative is consistent with the sentiment of 5 the Legislature. 6 Now, I think what Senator Marchi 7 was saying quite clearly, irrespective of the 8 underlying basis for the decision, the 9 interpretation of the state Constitution, the 10 efficacy of their conclusion, the fact remains 11 that in two instances in this decision, they 12 make reference to a simple fact of the state 13 Legislature being in concurrence. Well, I'm not 14 in concurrence; you are. So there we go and I 15 think that's important for us to take note of. 16 However, let me address the basic 17 issue. I've listened very carefully to all of 18 you this year, as I have in others, and 19 obviously, I respect each and every point of 20 view that has been expressed and the right to 21 express it. But I think there are some things 22 that have been said that require a response. 23 One or more of our colleagues 2194 1 gave a lengthy dissertation on the economic 2 issues related to a child that was born in less 3 privileged environment, poor, as opposed to an 4 abortion that may or may not take place. I 5 think if you draw a conclusion in our society or 6 to equate a child's life or anyone's life for 7 that matter to an economic cost on its face, is 8 an argument that I don't think any of us really 9 want to subscribe to, and if we have used it, I 10 think we should reconsider the context in which 11 we presented it. 12 I think it's important for us to 13 realize that the Congress of the United States 14 very specifically and very clearly said that it 15 would not fund Medicaid abortions. As a result 16 of that pronouncement which they have reaffirmed 17 on more than one occasion, we are one of only 18 six states that continue to do so. National 19 policy at our federal level by our Congressmen 20 and women, stated clearly time and time again, 21 that we should not, but we have decided, as did 22 five others, to go in a different direction and 23 I think it's important to recognize that fact. 2195 1 That's what -- that is what is 2 being said today on this floor by a number of 3 us. It's not a unique minority view if you look 4 at the country as a whole, but a majority view 5 and, when you consider the Congress is dominated 6 by your party, it just sort of strikes me as 7 rather odd that we should be cast in the light 8 of being totally unenlightened and unique in our 9 position. 10 Now, the issue of Roe vs. Wade 11 has been brought up here in the context of 12 several comments, and I assume it was brought up 13 appropriately, some might say inappropriately, 14 but if you want to bring up Roe vs. Wade, I 15 think you also should bring up Deal vs. Bell, 16 which is another case in 1977, where the Supreme 17 Court said the state has a valid and important 18 interest in encouraging child birth and states 19 are not required to use Medicaid funds to pay 20 for non-therapeutic abortions of those who can 21 not afford them. And so the Supreme Court spoke 22 to that issue quite clearly, and it doesn't 23 require any interpretation at all. 2196 1 Later on, in 1989, in Webster vs. 2 Reproductive Health Services, another decision 3 that is relevant, it was established by the 4 Supreme Court reaffirming the right of 5 government not to become involved in the 6 abortion business, and here the court said in a 7 sentence that I think is worthy of repetition, 8 quote: "Nothing in the Constitution requires 9 states to enter or remain in the business of 10 performing abortions." End of quote. And I 11 think that, my colleagues, is the issue. Are we 12 in the business of abortion? 13 Now, some of you mentioned, 14 Senator Montgomery, Senator Smith, a number of 15 others, that we should be doing things to 16 facilitate child bearing, birth women who are 17 poor who wish to bring their baby into this 18 life, and the bill that Senator Tully talks 19 about a moment ago that was the basis of the 20 court's decision that's been referred to, does 21 just that. 22 But we go way beyond that in this 23 budget and, hopefully, we'll get to it at some 2197 1 point in time. You will see an item referring 2 to the Maternity and Early Childhood Foundation, 3 an organization that was funded a number of 4 years ago by initiatives in both houses, both 5 sides of the aisle, providing millions of 6 dollars to help women who are poor, with all of 7 the maternity costs during child birth, prenatal 8 and after child birth. So we have not been 9 callous to that issue. We've done what we could 10 do to provide money for these particular 11 pregnant women. 12 I know of no issue in the 13 discussions that take place and have taken place 14 in regard to Medicaid funding that reduces the 15 amount of money that will be available in aid to 16 dependent children. I know of no initiative in 17 this house and certainly not in the Majority 18 that would diminish the funding for children in 19 any of the categories that historically have 20 been in place and, moreover, I will remind you 21 that, in this state, we expend a larger share of 22 our overall budget for social services than any 23 state in the nation, in aggregate and on a per 2198 1 capita basis, and Medicaid is the fastest 2 growing part of that component. 3 So when we vote on this budget 4 once again, there will be hundreds of millions 5 of dollars in new money provided for health care 6 to the poor. Those who get up, as did Senator 7 Leichter earlier, and cite our deficiencies in 8 this regard I think, frankly, are being 9 specious. 10 I've been in this place, this is 11 my 21st year, and every year I've been here I 12 have voted for budgets that included more and 13 more money for social services. Is it enough? 14 Will it ever be totally enough? I don't know 15 the answer to that question. The fact remains 16 that we have done what we could and then some. 17 Well, I said earlier I respect 18 your views; I hope that you respect ours. We 19 feel very strongly on this issue both in terms 20 of the constitutional decisions that have been 21 made and the underlying one that indicates quite 22 clearly that we need not and should not be in 23 the abortion business as a state even at this 2199 1 time. 2 And so I think we should join all 3 of the other states other than the six of us, 4 the great majority of them and their 5 legislatures and Congress, the Supreme Court of 6 the United States, who said quite clearly we 7 should get out of the abortion business. 8 Thank you, Mr. President. 9 ACTING PRESIDENT FARLEY: Senator 10 Goodman. 11 Oh, Senator Espada, why do you 12 rise? 13 SENATOR ESPADA: The Senator, a 14 question of the Senator. 15 ACTING PRESIDENT FARLEY: Senator 16 Padavan, will you yield to Senator Espada? 17 (Senator Padavan nods head.) 18 SENATOR ESPADA: Yes. Thank you 19 very much. 20 No quarrel either with your right 21 to say what you said, personally, but you said 22 something, you said that you have a representa 23 tive view that perhaps may be in the majority 2200 1 here today, and I just wonder how you settle 2 this whole question of, on this side of the 3 aisle, seven women ranging in political 4 philosophy from conservative to liberal, how 5 could you consider your position representative 6 and, if you still do, then is it -- is this 7 issue of a woman's point of view on this matter 8 important to you at all? 9 SENATOR PADAVAN: Senator, the 10 views of all of my constituents and all members 11 of this house are important to me, and I make no 12 distinction between their gender. A Senator 13 stands up and speaks, I really don't care what 14 their particular gender is; I'm listening to 15 what they have to say, and I respect what they 16 have to say. 17 I do that, I think, with my own 18 constituency and obviously in my constituency, 19 there are people that would agree with me and 20 those that would disagree with me and again they 21 are obviously from both sexes. I have members 22 of my own family that don't agree with me. I'm 23 not going to tell you who they are because 2201 1 you'll throw this back in my face at some 2 point. But the fact remains they don't and some 3 -- and some who do, so I don't think that's 4 really the issue here. 5 I've been here a sufficient 6 amount of time to have learned that, if we don't 7 respect each others' views, and the things we 8 have to say to each other, we're going to get 9 into a lot of trouble in the way we conduct 10 ourselves. I think I've answered your 11 question. 12 SENATOR ESPADA: Mr. President, 13 if I could just follow up. 14 ACTING PRESIDENT FARLEY: Senator 15 Espada. 16 SENATOR ESPADA: You did, and I 17 thank you. 18 The question is how much weight 19 as we deliberate these incredibly fundamental 20 issues in public policy, how much weight, or is 21 it important to value the weight that opinions 22 held by a woman would have in this body? 23 SENATOR PADAVAN: Senator, again 2202 1 I'll try my best to respond. I place the same 2 amount of weight on the view expressed by any 3 female member of this house as I do by any 4 female member of my constituency. I would also 5 assume that female membership in this house 6 would place an equal amount of weight on an 7 opinion expressed by a male constituent on any 8 given issue. I don't think that there should be 9 a lack of balance in that perspective. 10 ACTING PRESIDENT FARLEY: Senator 11 Goodman. 12 SENATOR GOODMAN: Mr. President, 13 I was in this chamber 22 years ago when, after 14 an extraordinarily moving debate, this house 15 made a decision which became the law of the land 16 permitting freedom of choice with respect to 17 abortion in the first trimester of pregnancy and 18 I shall never forget Earl Brydges seated in the 19 chair now occupied by Senator Present, who was 20 passionately pro life, and he came into this 21 chamber and he made a policy decision and that 22 decision was that, even though he felt that 23 abortion was morally wrong, that this house 2203 1 should be given the opportunity to debate the 2 question and to have a free vote of conscience 3 upon it. Those now seated in this chamber who 4 will remember this are Senator Present, Senator 5 Galiber, Senator Marchi, and, Senator Halperin, 6 were you here in your knee pants at that time? 7 SENATOR HALPERIN: Yes. 8 SENATOR GOODMAN: Apparently you 9 were, and that perhaps was the point of greatest 10 dignity and greatest sensitivity of the house 11 and the point at which the saying that we are 12 the greatest of all of the state legislative 13 bodies had its truest underpinning. 14 In the 22 years since that action 15 was taken and just to conclude the Earl Brydges 16 recollection, at the conclusion of the debate 17 which he closed for his point of view, he 18 slumped into his chair literally in tears 19 because he knew that, by virtue of his decision 20 to allow the democratic process to take its full 21 result, that he might very well have something 22 occur with which he disagreed. And so for him 23 it was an extraordinarily moving moment and one 2204 1 which we all shared and had a lump in our 2 throats at the time. 3 In every year since that action 4 was taken in this house, at budget time and at 5 various other times, an attempt has been made to 6 chip away at the decision which we reached at 7 that moment and, unfortunately, this house did 8 not uphold that decision but, fortunately, the 9 other house did and, as a result, the sanctity 10 of that decision has never been impinged upon. 11 Mr. President, in reflecting upon 12 some of the issues that are at stake in this, 13 I'd like to share with you another reminiscence. 14 One night long ago I was serving as commissioner 15 of finance in the New York City administration, 16 and the mayor of New York decided that it would 17 be a good idea for each of his commissioners to 18 take a turn in what he called the "night mayor" 19 program, night mayor, m-a-y-o-r. 20 For me, my first night as night 21 mayor became a nightmare, m-a-r-e because I took 22 a tour of the city. We were allowed not just to 23 stay in City Hall but to go out and tour around 2205 1 and see what was going on in the City, and I 2 went to the Children's Shelter at 110th Street 3 and Fifth Avenue, and it was an unannounced 4 inspection tour, and I saw row upon row of cribs 5 of sleeping children, some not sleeping, some 6 bellowing, but there is something quite 7 significant about this, because there were two 8 children in every crib, one at the head of the 9 bed and one at the foot of the bed, two little 10 heads, one popping out of each end. These were 11 the poor children who had no parents. These 12 were the children who were in an orphanage which 13 was so overcrowded that there was no way to care 14 for them other than in conditions which I can 15 only describe as inhuman and insufferable. If 16 it had been possible for many of their mothers 17 to have exercised their right of free choice, I 18 would not have seen two children in each crib 19 that night and so many of those little cribs. 20 Mr. President, if we can just 21 take a moment to try to empathize with the 22 impoverished mother-to-be who suddenly makes the 23 totally unexpected discovery that she is 2206 1 expecting a child and she is bewildered and she 2 doesn't know what to do and she does not know 3 where to turn. She may be given the choice 4 that, if it is her judgment and that of her 5 spiritual counselor or that of herself and her 6 doctor that an abortion is appropriate, that she 7 should then go and try to get an abortion. 8 But where does she get the 9 wherewithal to do this? Who provides the money 10 for this procedure to be undertaken? The answer 11 is, if the will of this house which is exercised 12 at budget time were to apply, that no one would 13 provide it, that government which theoretically 14 grants the right of freedom of choice would 15 actually be denying it on the basis of an 16 economic form of blockade. No money available 17 and, therefore, no exercise of free choice. 18 Mr. President, it has often been 19 asserted with deep sincerity by those who 20 support the pro life position that to permit an 21 abortion to occur is to permit the taking of a 22 human life, and I'd just like to remind us all 23 of some of the elements of that debate 22 years 2207 1 ago when we propounded the proposition that in 2 the first trimester of pregnancy before the 3 quickening of the fetus there is not, in the 4 view of many of us, the existence of a human 5 life as such. A potential life, yes, from the 6 moment of conception, but not a human life in 7 any normally construable sense of that word. 8 What has been the acid test of 9 this? It has been whether the fetus could 10 survive outside the woman, and there has been no 11 place on this planet, of which I or any medicine 12 -- medical man that I have spoken to that I am 13 aware, that a fetus has been able to survive 14 outside of the woman in any period of less than 15 a trimester, and so there is substantial medical 16 evidence for the fact that this is not in any 17 normal sense of the word a human life and that 18 the taking of this is not the taking of a human 19 life and is certainly not murder. 20 And, Mr. President, that is the 21 logical premise from which we assert the right 22 of privacy of a woman to make a choice with her 23 best available advice on her own, without the 2208 1 intrusion of government. What right does 2 government have to intrude itself into the 3 bedroom or intrude itself into the most private 4 of awful decisions? 5 We spoke of the "hanger syndrome" 6 in that debate 22 years ago, of the fact that 7 there literally was case after case in which 8 poor women administered abortions to themselves 9 with twisted wire coat hangers, and we 10 documented repeatedly the extent to which women 11 in that situation often administered to 12 themselves a death sentence from which there was 13 no return to life. Hemorrhaging ensued and 14 death followed shortly thereafter. 15 How many back alley abortions are 16 we willing to see contemporary society permit? 17 Mr. President, it might be useful 18 to take a moment to say what pro choice is not. 19 Pro choice is not pro abortion. It is not pro 20 abortion for contraceptive purposes. It is not 21 pro abortion for convenience. It is not pro 22 abortion on a basis that is thoughtless and 23 unmotivated by valid factors. 2209 1 To say that one is pro choice is 2 in no way to suggest that it is not imperative 3 that society provide sex education, that society 4 do everything in its power to try to advise that 5 abstemious behavior is appropriate, especially 6 among our teenagers and especially among those 7 in a premarital situation. But don't we know 8 enough to learn that in the best of all worlds 9 that is not the way the world really works. The 10 world works that, for whatever impulse and 11 reason, young mores involve premarital sex; they 12 involve promiscuous sex; they involve a lot of 13 things which we hope we can try to prevent from 14 recurring over and over. But despite our best 15 efforts and anything we might say in this 16 chamber, these things are a fact of life. 17 No, pro choice is not pro 18 irresponsible behavior, and it is not pro 19 promiscuity. If we could spend more of our time 20 educating our kids into what constitutes 21 appropriate behavior in their own long-range 22 interest, we'd have less necessity for abortion, 23 but in a practical, cruel, real world where im 2210 1 pregnation occurs when it is not intended and 2 indeed at times when it's not even understood 3 that it will occur, we owe it to the people who 4 are involved in this human calamity to give them 5 every possible assistance, to throw them, if you 6 will, a life preserver, to enable them to bear 7 future babies healthily and not to bungle 8 abortions so that either they kill themselves or 9 they prevent the normal conception of future 10 progeny. 11 Mr. President, there's been ample 12 coverage today, I suspect, of the economic folly 13 of those who suggest that we can save $12 14 million on abortion. Have we read the memoran 15 dum in support of this measure? It's absolutely 16 astonishing. "Fiscal implications," it says. 17 "A conservative estimate of two-thirds of the 18 abortions being medically unnecessary would 19 produce savings of $12 million annually." 20 This is a Senate memorandum 21 relating to a bill in this chamber? $12 22 million. You've already heard the costs of the 23 children in the little cribs, and you've already 2211 1 heard the costs of situations involving 2 youngsters who are born and have never had a 3 break, never had any opportunity to be given any 4 of the gifts of the Jeffersonian dream of the 5 society in which all men can be pulled up and 6 women can be pulled up by their own boot 7 straps. It's a wasteland in many cases and it 8 becomes more and more of a wasteland the more 9 and more we hew to the narrow type of approach 10 which says we'll save 12 million bucks if we 11 prevent Medicaid abortion. 12 I respectfully submit to you, Mr. 13 President, that that's folly and the most self 14 defeating sentence I've ever seen in any bill 15 memorandum in this house. 16 Let me conclude by suggesting 17 that those of us who care very deeply and both 18 pro life and pro choice people do, about the 19 future outcome of our civilization, will 20 recognize that this type of a debate in this 21 house today has far-reaching implications, not 22 only are we discussing a question of an 23 appropriation for Medicaid abortion, we're 2212 1 providing a lens through which the public will 2 look at a legislative process in a free land and 3 we're giving the public the opportunity to gauge 4 the degree of judgment and common sense and true 5 morality which this house can or cannot practice 6 depending upon the vote of its members. 7 Now, I'm not here to say that any 8 action, that any outcome here is inherently 9 immoral by intention, but I am here to tell you 10 that, in terms of the common sense and the 11 judgment of what it is that is ethical behavior 12 in a society as many of us construe it, the 13 opportunity which we must try to provide to all 14 citizens irrespective of economic condition to 15 be given adequate attention under the over 16 arching principle that every individual has a 17 right to privacy and a right to choice in an 18 abortion, for a consistent application of that 19 principle there must always be funding for the 20 abortion and to the extent to which we deprive 21 people of that, we're indulging in what I can 22 only call the crudest of self-administered 23 folly. 2213 1 So, my friends, once again the 2 issue is before us. I wish I could predict that 3 this house would defeat this measure. I know 4 that it will never become law, and I know that 5 probably the mind set of most of my colleagues 6 is such that this debate will not affect its 7 outcome, but it's my fondest wish that somehow, 8 some day, in some way in this house that these 9 measures will no longer be presented. 10 And I would remind us, in 11 conclusion, that the latest public opinion poll 12 taken by people in my party has shown that, and 13 within the last several weeks has shown that 14 better than two-thirds of all New Yorkers 15 believe in the principle of pro choice. If we 16 purport to mirror the underlying feelings of 17 those we're here to represent en masse, that 18 statistic alone should be sufficient to impel us 19 to a conclusion that this bill is not an 20 appropriate bill for passage in this house. 21 SENATOR GOLD: Mr. President. 22 ACTING PRESIDENT FARLEY: Senator 23 Gold. 2214 1 SENATOR GOLD: In answer to those 2 people who think that sometimes it is 3 unnecessary for people to speak because other 4 people have spoken, this is a perfect example of 5 why that argument doesn't always hold true 6 because you may vote the same as another person 7 but maybe for completely different reasons and, 8 Senator Goodman, while I understand your 9 sincerity, I want to completely disassociate 10 myself with one of the examples you used which I 11 thought was a horrible example. 12 When you referred to those 13 children in the orphanage, I said, God bless 14 them that they were born, and thankful that 15 their mothers had had them as children and our 16 responsibility is to see to it that those 17 children get care, that perhaps that the mothers 18 would not abandon them, but that they have 19 life. 20 My position as pro choice has 21 never been that abortion should be an off-handed 22 birth control method that we do just as we yawn 23 in the morning or in the evening we go get an 2215 1 abortion. I am thrilled that those children 2 were alive. I thrill for every woman - 3 SENATOR GOODMAN: Mr. President. 4 SENATOR GOLD: I certainly would 5 yield. 6 ACTING PRESIDENT FARLEY: Senator 7 Goodman. 8 SENATOR GOODMAN: Mr. President, 9 Senator Gold, I appreciate your yielding, and I 10 appreciate the opportunity of setting the record 11 straight if my words were not clearly enough set 12 forth to be generally understood. 13 SENATOR GOLD: I'm sure they 14 weren't, and I'll be glad to yield. 15 SENATOR GOODMAN: Senator Gold, I 16 specifically said that I did not feel at any 17 time that abortion should be construed as 18 contraception, and I most assuredly at no moment 19 intended to imply that my seeing two children in 20 a crib was an indication that they were not 21 children to be appreciated. It was rather 22 focused upon the tragedy that society is not 23 able, in many instances, to care for children, 2216 1 and that was the entire emphasis. 2 Obviously, I think you and I know 3 one another well enough so that you should never 4 confuse any such statement with a statement to 5 suggest that those children were not welcome 6 when born and that those children were not 7 entitled, as every other free citizen is of this 8 society, to optimum care. But my reflection was 9 to see a City facility in which there were two 10 kids in a crib, to convey to you the notion that 11 that was a ghastly inadequate way for human 12 beings to be treated. 13 I hope that I've dispelled any 14 misunderstanding on the quote. 15 SENATOR GOLD: Well, Mr. 16 President. 17 ACTING PRESIDENT FARLEY: Senator 18 Gold. 19 SENATOR GOLD: I don't 20 misunderstand Senator Goodman, because I know 21 that, in his heart, he has compassion and good 22 ness. Your words, Senator, I don't think came 23 out the way you wanted them because you 2217 1 suggested that had the law been different in 2 those days, those children may not have been 3 there, and I know you didn't mean that, because 4 you have now explained your position which I 5 knew to be your position; but it was not a great 6 example. 7 You referred back to 22 years 8 ago, and interestingly enough, I ran for the 9 Assembly in a very hotly contested race, almost 10 lost, and that might have had an effect on the 11 law because my vote was the 75th vote which 12 required Perry Duryea to cast the 76th vote to 13 make that the law, and had I lost the election, 14 there wouldn't have been a 75th and assuredly no 15 76th. 16 Just wanted to make a couple of 17 points. In terms -- there's some major 18 inconsistencies here. We complain about the 19 cost and, on the other hand, I hear that there 20 aren't any poor people asking for this, and then 21 I hear people say we spend the most amount of 22 money. 23 What are we talking about? At 2218 1 least in the privacy of this chamber, let's 2 understand some things. A vote for this bill is 3 not a vote for the majority of people in this 4 state. It may be a vote for the way individuals 5 here feel and their consciences feel, and I 6 respect that and I'm never going to argue with 7 anybody on that, never, all right? 8 In the privacy of this room, if 9 this state spends a lot of money for social 10 services and for health care, it isn't because 11 of a lot of you here who fight with us every 12 year to take away that money. Sure, when the 13 budget process is finished, the Majority in this 14 house takes great pride in coming up with 31 15 votes, and then you'll write letters home that 16 say, because of you, you cut this and you cut 17 that and you cut this and that; and so don't 18 come in now today and brag that New York State 19 spends all its money in helping people. 20 Certainly wouldn't be spending 21 what we were spending if it was up to a lot of 22 the people here. 23 This is not obviously -- oh, one 2219 1 other point, on this "poor people". Senator 2 Nolan, whose sincerity on this issue is 3 extraordinary and I would never question, but he 4 makes an argument which, with all due respect to 5 him, and he's a bright lawyer, is totally 6 flawed. He says that poor women and poor people 7 don't -- he never heard anybody ask for it. 8 On the other hand, my 9 distinguished colleague from the county of 10 Queens, Senator Maltese, says that we are having 11 more abortions than any year since 1982. Well, 12 since this bill only covers abortions for poor 13 people, didn't the 45,000 or so people who took 14 advantage of the program speak? Wasn't that 15 them speaking saying they needed the program and 16 they were able to get it? Is there any doubt in 17 anybody's mind that if the program wasn't 18 available, these thousands of poor women would 19 be subject to butchery? We know that's the 20 fact. 21 And lastly, I'd like to say that 22 I recognize that this is not a partisan issue. 23 One of my closest friends in the world, no 2220 1 secret, Senator Onorato, who can't be here right 2 now and who is on his way here, may not make 3 this vote but has always supported this bill in 4 the past and I'm sure will indicate on the 5 record his support for it today, Senator 6 Stachowski, Senator Nolan, we have people on 7 this side of the aisle who will support that; 8 you may have some on your side who will oppose 9 it, but there's one interesting factor. When 10 someone made a reference earlier to seven women 11 on this side of the aisle from different 12 political points of view, Senator Pataki has a 13 lot to offer this chamber and my remarks 14 certainly are not meant in any way against him, 15 but when you did have a woman on your side, she 16 happened to agree with the women on this side. 17 So the women who are here today are not speaking 18 as Democratic women, and they're not speaking as 19 liberal women or conservative women, they're 20 speaking as women, and you have Republican women 21 outside of this chamber who speak as women. 22 I don't speak as a woman, but I 23 can speak as a human being in this society, who 2221 1 recognizes that you can not, in good conscience, 2 make the kind of distinctions among women that 3 this bill would make. It is terrible politics 4 for this state. I appreciate the fact that the 5 sponsors of this bill are unquestionably as 6 sincere or more sincere than I am -- can't be 7 more sincere, as sincere as I am, and as Senator 8 Goodman and Senator Oppenheimer and others, but 9 with that degree of sincerity that I feel, I'm 10 telling you this is bad, bad public policy for 11 this state, and I applaud the fact that it will 12 not become law even if it passes here. 13 ACTING PRESIDENT FARLEY: Senator 14 Waldon. 15 SENATOR WALDON: Thank you very 16 much, Mr. President, my colleagues. 17 I rise because of some things 18 which were said on the floor earlier and to 19 share with you a personal experience I had at 20 the Foundling Home in Manhattan some many years 21 ago. 22 Many of you do not know this, but 23 for a period of nine or ten years I played Santa 2222 1 Claus every year for the Knights of Columbus, 2 and one of the places that I was required to go 3 was the New York City Foundling Home, and after 4 a period of time I couldn't do it any more, not 5 because I didn't enjoy bringing joy to the 6 children or sharing the presents, but it was 7 because at the end of the day playing Santa 8 Claus, the children who were, some in the cribs, 9 most out of the cribs, would grab the red suit 10 that I had on and begin to call me "Daddy" as I 11 tried to leave the Foundling Home, and the 12 overwhelming emotion that I experienced in the 13 last couple of years that I played that role 14 made it impossible for me to continue. 15 When Senator Goodman spoke of the 16 two children in the crib, I wondered what we're 17 thinking about, how sacrosanct are we to believe 18 that the policy of the Congress of the United 19 States, a male-dominated bastion, is the right 20 thing to do? Since when does New York State 21 have to copycat what someone else is doing? Does 22 it make the Congress right that they are 23 insensitive to the women of this nation? Will 2223 1 it make us right to again repeat our 2 insensitivity to the women of this nation? Does 3 it make the Republicans in this chamber right to 4 disregard their poll which tells them that the 5 women in their party and the people in their 6 party want to change and want to support pro 7 choice? 8 But the graphic description of 9 the two children in the crib reminded me that, 10 in a conversation week before last that I had 11 with Tom Coughlin, that the Department of 12 Correctional Services is driven by the fact that 13 we have two inmates in a cell, and what happens 14 when these women, many of them children 15 themselves, have these babies and are unable to 16 take care of them and, because of the policies 17 that we establish here when we fight over the 18 educational budget, those children are not 19 allowed, some of them, in the inner cities to 20 have a decent education, and that also happens 21 in the rural areas of our state when we fight 22 over the penny, and they have inadequate 23 clothing, inadequate housing, inadequate medical 2224 1 attention, and sometimes not necessarily by 2 choice, but by being the victims of this society 3 they end up as one of the two persons in the 4 prison cell. 5 Although there is no direct 6 connection, no absolute nexus between our vote 7 on this bill and the monies that we spend for 8 prisons, which, by the way, dwarfs the $12 9 million we're talking about here, we spend 10 billions on prisons, $150,000 to maintain the 11 prison cell with this mortgage component, 12 $50,000 a year for a maxi' maxi' just to keep 13 the prisoner in the cell. 14 Are we also sacrosanct in our 15 approach to life or our approach to death? I 16 think this is a mistake. I think for us to feel 17 good about duplicating what the Congress has 18 done is a huge error. We're better than that. 19 I think it is a mistake for us not to be 20 sensitive to the will and the needs and the 21 desires and expressions of the women of this 22 state and of this country and, in fact, I would 23 encourage the women of this country to vote out 2225 1 all of those who don't see it their way. They 2 have 51 or better percent of the voting block. 3 Vote everyone who does not agree with their 4 position out of office, and then this will 5 become a moot issue. 6 I must encourage all of my 7 colleagues, Mr. President, to please, please 8 listen to the drum beat of the women and vote no 9 on this issue. 10 ACTING PRESIDENT FARLEY: Senator 11 Galiber. 12 SENATOR GALIBER: Mr. President, 13 I wasn't going to speak on this until, Senator 14 Goodman, I only hope that they clear the record 15 up because I know that you said it and I don't 16 -- I'm glad to hear that you did not mean it. 17 You and I some 22 years ago were 18 a bit at odds on this very same issue because I 19 had objected to you bringing the balloon and the 20 hanger and stuff like that. Good memories, 21 O.K.? 22 But on this particular issue, 23 it's all been said. I think -- I don't want to 2226 1 beat a dead horse. My name was called, and I 2 want to make it crystal clear that what Senator 3 Gold has said was what I was going to say also. 4 Those of us who come from the 5 city of New York, and this issue always troubles 6 me because we lose sight of what it's really all 7 about. It's an attitude and it's a pitying and 8 it's a judgment, and it's a decision that people 9 have come to, same as the death penalty. 10 Every now and then, you might 11 sway someone over to agree with the death 12 penalty. Not on this issue though. But the 13 tragedy of what happens, Senator Maltese, when 14 we start talking about this issue, is that we 15 bring in things that have nothing whatsoever to 16 do with your right of choice in terms of your 17 opinion on this particular issue. 18 We start picking on the poor 19 again. We start dealing with the Constitution, 20 whether or not it was the intent of the 21 Legislature. We just went through a situation, 22 we talked about the intent of the legislation, 23 the three branches of government. You want to 2227 1 get on issues. 2 Reapportionment bill, we had 3 someone who suggested that we pass this. The 4 Legislature passed it, the governor signed it 5 so, therefore, it is a presumption, a 6 presumption of constitutionality. That's what 7 the Court of Appeals said. Some of it 8 disagreed, not those who were shifted out into 9 the woods. 10 Burden of proof, those who felt 11 that they had gone through branches of 12 government was essential and that in this 13 instance somehow they'd gone a bit too far. 14 Senator Nolan talks about why is 15 it, we know that there's a number of questions, 16 a number of issues. We don't know why drugs are 17 used at the rate it's used in the United States, 18 but it is, this great country of ours. 19 So, Mr. President, most of what 20 has been -- I wanted to say has been said, and I 21 would not have mentioned it but for that one 22 point and I think it's extremely important, 23 Senator, because I know you didn't mean it 2228 1 because somewhere along the line they may pick 2 that record up because there are those in my 3 family where my mother had nine -- my 4 grandmother had nine children, and that's the 5 only way they slept, Senator, only way you get a 6 good night's sleep. One slept this way, one 7 went the other way, one went down, and that's 8 the way people could sleep nights, and for you 9 to suggest, and you didn't mean it, I'm glad to 10 hear it, didn't mean that that person who was 11 sleeping the opposite way, maybe that person 12 wouldn't have been sleeping that way but for the 13 fact that we're taking a position as far as 14 abortion is concerned. 15 You mentioned something about 16 lifting up the bootstraps theory somewhere 17 along. Try it, today, Senator, just lift your 18 self up by your own bootstraps. You're going to 19 fall on your gluteus maximus, believe me. Try 20 it! You're going to find out. I have. 21 So, Mr. President, we're trying 22 to get at the time point where we'll re-shuffle 23 and re-deal the cards, if you will, every 50 2229 1 years 'til we come to those who have too much 2 and those who have not enough, until we come to 3 that philosophy that every individual has a 4 right and an opinion and a choice. 5 I've taken a position as far as 6 this issue is concerned. Senator, you and I 7 were on the right side of the argument in the 8 debate 22 years ago, and I suffered along with 9 you to see the agony on Senator Brydges' face 10 because he had the nerve and the temerity and 11 the fairness to have this issue debated, and 12 Senator Waldon, you probably are getting close 13 to being right. We've got something like 1500 14 women in the Legislature, quite an increase from 15 just a few years ago, and they have a powerful 16 presence in the legislative branch throughout 17 this nation, and they bring a kind of 18 sensitivity and concern on issues that are 19 important to all of us as human beings. 20 So, Mr. President, I'm going to 21 vote as usual on this piece of legislation, I'm 22 going to vote against the amendment because the 23 amendment is really just a way of keeping the 2230 1 ultimate issue alive; that is whether you're for 2 or against abortion, almost got sucked in, and 3 I'll end on this note because of my sensitivity 4 one year, there was a bill which said would you 5 have any objection to having another attendant 6 in the room when the person was having the 7 abortion. 8 Now, that's the approach used, 9 and I voted, I said yes, if you're going to go 10 for the abortion let's have somebody else in the 11 room, but it's just a means through which you 12 keep the issue alive, just like this issue of 13 whether or not we should pay for the abortion or 14 no, but the underlying -- the basic issue is 15 whether or not you believe or not, and that's 16 where the issue should stay. 17 ACTING PRESIDENT FARLEY: Senator 18 Oppenheimer to close debate for this side and 19 then Senator Maltese to close debate. 20 Senator Oppenheimer. 21 SENATOR OPPENHEIMER: Did we make 22 it under two hours? 23 ACTING PRESIDENT FARLEY: We're 2231 1 not keeping track. 2 SENATOR OPPENHEIMER: We tend to 3 be - 4 ACTING PRESIDENT FARLEY: Senator 5 Montgomery, why do you rise? 6 SENATOR MONTGOMERY: Mr. 7 President, I just wanted to, before the close of 8 debate, I would like to ask if Senator Marchi 9 would yield to a question, in fact. Can I do 10 that? 11 ACTING PRESIDENT FARLEY: Senator 12 Oppenheimer has the floor. She will yield to 13 you, I'm sure. 14 SENATOR MONTGOMERY: Oh, thank 15 you, Senator Oppenheimer. 16 Senator Marchi. 17 ACTING PRESIDENT FARLEY: Senator 18 Marchi, would you yield to Senator Montgomery 19 for a question? 20 SENATOR MARCHI: Yes. 21 SENATOR MONTGOMERY: Yes. In 22 light of your comments, when you spoke, when I 23 was speaking and Senator Padavan's comments, I 2232 1 just wanted to ask if you were in your -- in 2 your debate, were you responding solely to the 3 fact that the wording in the -- in the decision 4 stated that on behalf of the -- that the law 5 firm was representing the New York State 6 Legislature? 7 SENATOR MARCHI: Well, it was a 8 -- this is a representation made for the 9 purposes of justifying under-inclusions. Had it 10 been -- had it not been that way, it certainly 11 undermined, I think to some extent, the 12 regularity and the professionalism of the 13 judicial temperament that should have been 14 exhibited by the court treating this in not 15 being so frivolous with -- with some of the 16 supportive data. 17 But my -- essentially, my 18 argument was with the under-inclusion to supply 19 that which was not intended to be supplied and 20 then in the court's decision itself, well, we're 21 doing what you would have done had you realized 22 our constitutional concerns about it. 23 I don't see that. It's not 2233 1 justified, I don't think, in terms of 2 experience. You're speaking about public policy 3 generally and that leads you in another 4 direction; that's something else, but I think in 5 terms of -- in terms of supplying by 6 under-inclusion, it's something that I don't 7 want to see, at least in future cases where it's 8 so blatantly in contrast with realistic 9 statements by us. 10 It's wrong. Well, then, call it 11 unconstitutional and let the process proceed, 12 but I don't see -- I don't see the avenue that 13 was selected as -- as really, I thought it was 14 very cavalier treatment of the Legislature and 15 much more importantly, it -- and certainly they 16 became legislators as well as -- and that 17 happens inevitably when you make a decision 18 affecting even constitutional rights. But it's 19 to be exercised with the greatest care with 20 respect to the Constitution. 21 But here we're saying what 22 categories we're going to add, and we're going 23 to put in this rather than declare the whole 2234 1 thing unconstitutional, and that's what they 2 want. Well, it wasn't what we wanted because we 3 would have said so, if we wanted it. 4 SENATOR MONTGOMERY: Thank you. 5 Thank you. 6 SENATOR MARCHI: I'm sure I 7 didn't answer your question, but it's part of 8 it, but certainly not all of it. 9 SENATOR MONTGOMERY: Yes, thank 10 you, Senator. 11 I thought that I understood you 12 to say that, and I also confirm my original 13 comment, and that is I certainly do believe that 14 the court has a right to reverse a decision of 15 ours but, moreover, I do want to make sure that 16 Senator Marchi understands I certainly 17 absolutely respect your right to your opinion. 18 I just happen to disagree with that. 19 I certainly do agree with the 20 court and, as I said before, I also respect that 21 they will override us and, hopefully, they will 22 continue to in the spirit of our Constitution 23 and our government as it is established. 2235 1 Thank you, Senator Oppenheimer. 2 ACTING PRESIDENT FARLEY: Senator 3 Oppenheimer, you have the floor. 4 SENATOR OPPENHEIMER: I 5 appreciate what several of my colleagues 6 specifically have said. 7 Senator Goodman mentioned that, 8 irrespective of what we do here, that abortion 9 will not go away and indeed that poor women will 10 do what they have to do as they have been doing 11 for thousands of years, and we can legislate all 12 we want, but the fact is that a woman is going 13 to do what she has to do and it really doesn't 14 matter what we do here and that's sort of the 15 bottom line; and poor women, if they don't have 16 access to the Medicaid funding, are going to do 17 what they had done prior to Roe vs. Wade which 18 is they died in inordinate numbers in horrible 19 ways in back alleys. 20 I appreciated Senator Nolan's 21 thoughtful discussion where, although he is 22 strongly opposed to abortion, he recognizes that 23 what is available to a -- a well-to-do or a 2236 1 middle class woman really rightfully ought to be 2 available to a poor woman, and I respect all of 3 the statements and the philosophies that were 4 enunciated today, and I think that this debate 5 -- this debate is never going to go away, and 6 it's never going to get resolved, and I really 7 hate this discussion, and I really think 8 government has no place in this discussion. 9 It's such a personal and such a private matter 10 and a woman is going to handle it as best as she 11 can handle it, and that's why I really hate this 12 discussion in this chamber, because I don't 13 think government has a role to play here. 14 But I hope that we will not have 15 this discussion next year, and the Hope vs. 16 Perales decision if it goes to this Court of 17 Appeals, I believe, will be upheld and I will 18 mention now before all of this body that I will 19 again be organizing friend of the court 20 concurrence with members of this legislative 21 body who feel as -- as I do that this is 22 appropriate for us to file an amicus brief. 23 So, one, I hope that the Hope vs. 2237 1 Perales decision will be upheld by our Court of 2 Appeals if it goes there, and I, secondly, hope 3 the other big change this year is that I hope 4 our President will ask Congress to drop the Hyde 5 amendment and ask Congress to move ahead on 6 health care reform and included as part of that 7 health care and basic benefits package, that 8 choice will be available to all women. 9 It's certain to me that we 10 shouldn't discriminate against poor women for 11 those privacy rights and health rights which 12 were available to women that are more affluent. 13 In closing, I'd just like to 14 mention those groups that are in support of 15 Medicaid funding for abortion, and they number 16 about 25. Amongst them are the American 17 Association of University Women, Catholics for 18 Free Choice, the Protestant Episcopal Church 19 Diocese of New York, International Association 20 of Women Ministers, League of Women Voters, 21 Association of Social Workers, the New York 22 State Nurses Association, the New York State 23 Council of churches, the New York State 2238 1 Republican Family Committee. 2 Actually I did want to mention a 3 few lines from this very fine legislative memo. 4 The New York State Republican Family Committee 5 states that they believe that "***government 6 must play a constructive role in ensuring that 7 people of differing views are allowed to follow 8 their consciences. It is government's responsi 9 bility to foster a climate of tolerance. It is 10 not the government's -- the business of govern 11 ment to advocate one religious view over 12 another. The inclusion of abortion within New 13 York State's Medicaid system is positive proof 14 that New Yorkers recognize the importance 15 tolerance plays in building a civilized society 16 and the Republican Family Committee urges 17 Medicaid funding for abortion because it 18 safeguards a woman's health. It is fair and 19 just, and it saves the taxpayers' money." 20 This is the women of the 21 Republican Party of New York State speaking. 22 Well, there are several -- many other groups. 23 There are only two groups who are in opposition 2239 1 to Medicaid funding, and that is the New York 2 State Right to Life Committee and the New York 3 State Nurses for Life, which was mentioned by 4 Senator Maltese. There are about 25 or 30 5 groups that support -- that are supportive of 6 more Medicaid funding. 7 Thank you, Mr. President. 8 ACTING PRESIDENT FARLEY: Senator 9 Maltese to close debate. 10 SENATOR MALTESE: Mr. President, 11 since Senator Goodman engaged in a bout of 12 nostalgia in connection with the general 13 subject, perhaps to some extent I can do the 14 same. 15 While I was not up here as a 16 member of this body, I was, in fact, up here and 17 had discussed the matter with Senator Brydges 18 and his aides, and I was not present in the 19 chamber that day, but had occasion to speak to 20 him subsequent to the fact, as some of my 21 colleagues did, some of my present colleagues, 22 and I don't think anybody would disagree with me 23 that that decision was probably one of the 2240 1 decisions that Senator Brydges most regretted 2 during his legislative career. 3 Just now, I added up the amount 4 of abortions that have taken place in 19... in 5 New York State since that ill-fated decision and 6 they total over three and a half million 7 abortions since 1971, and with reference to 8 those figures, I think it's interesting to note 9 that in the first year 1971, there was more than 10 a quarter of a million abortions, whereas in the 11 prior year there had been only 62,000. 12 It's also interesting to note 13 that in those years, those first years, New York 14 State became an abortion mecca, and that some 60 15 percent of the abortions performed in the first 16 two years -- first three years were from - 17 performed on out-of-state residents who traveled 18 here to secure those abortions. 19 The analogy that Senator Goodman 20 made about the two children in the crib, I 21 believe, has been to some degree covered by 22 Senator Gold. But I would like to comment on 23 them to the effect that those mothers, the 2241 1 mothers, no matter how poor or deprived, I 2 wonder if those same mothers had to choose 3 between the children, sort of a choice between 4 living or dying, I am a hundred percent positive 5 the choice would not be for death. 6 Senator Goodman also made the 7 decision, and I'm sorry he's not here in the 8 chamber now, made the allusion to what choice 9 is, that it is not a choice for -- for - 10 necessarily for pro abortion, that it is - 11 being pro choice is not pro choosing abortion 12 for birth control methods. 13 But it is -- it is, in fact, just 14 that for a great many of the people who choose 15 abortion. I referred earlier to the figures, 16 the abysmal figures, the horrifying and shocking 17 figures for a so-called civilized society, that 18 we had only 298,702 live births statewide in 19 1990 and 159,000 abortions, which gives us a 20 rate of 53 per hundred live births. 21 But when we look at the figures 22 for teenagers, we find them even more shocking 23 and a commentary on our society today for 2242 1 teenagers. There are 113 for every 100 live 2 births. 3 Senator Goodman, and I don't 4 question his sincerity, but he also made an 5 allusion in saying that he did not believe this 6 legislation, like some of our other right to 7 life legislation, he said, he is not saying that 8 it is inherently immoral by intention. Well, by 9 saying that, I think I can safely say that the 10 result would be inherently immoral. The 11 implication certainly is there. 12 I submit, Mr. President, that I 13 stand on much firmer ground; I and those 14 advocates of life stand on much firmer ground 15 when we say that certainly the alternative to 16 life, the abortion of these three and a half 17 million babies since 1971, may not be immoral by 18 intention, but certainly is immoral in results. 19 Mr. President, I would like to 20 refer now to the -- the decision, the court 21 decision referred to by Senator Oppenheimer and 22 others, and that court held that the right to 23 abortion is protected under the United States 2243 1 Constitution and that a Medicaid program could 2 not discriminate in funding between child birth 3 and abortion. 4 I believe this court, the 5 appellate court, is certainly out of step with 6 reason and other court decisions. Indeed, 7 the -- the proponents of this decision, lawyers 8 for the New York Civil Liberties Union, took 9 pains to say that it was the first time that an 10 appeals court in New York -- New York had taken 11 a -- had made such a decision. 12 In addition, Mr. President, I 13 think the loose terminology referred to by my 14 good colleagues, Senator Marchi and Senator 15 Padavan, with reference to the intent of the 16 Legislature and the will of the Legislature, 17 leaves us no doubt that this court was certainly 18 guilty of sloppy draftsmanship. 19 I refer now to that specific 20 decision with reference to the New York State 21 Prenatal Care Assistance Program, PCAP, and as 22 Senator Tully referred to as the sponsor of the 23 bill -- and I would like to read specifically in 2244 1 the decision with reference to PCAP, that -- and 2 this is the majority decision -- "was enacted to 3 take advantage of specifically designated 4 federal funding and was aimed at decreasing 5 infant mortality and promoting the health of 6 infants and mothers." 7 And I want to repeat that, Mr. 8 President: "Was aimed at decreasing infant 9 mortality and promoting the health of infants 10 and mothers." 11 To think that an appellate court 12 of this great state can take such a clear and 13 precise message and turn it into the exact 14 opposite, turn a program that was supposed to 15 protect and preserve the life of infants into a 16 pogrom that destroys and slaughters those very 17 same innocents, Mr. President, that court had to 18 be in error. 19 I refer again to the majority 20 decision. "In the opinion of the court, the 21 right of a pregnant woman to choose an abortion 22 in circumstances where it is medically 23 indicated, is one component of the right of 2245 1 privacy," and this is the part that bears our 2 attention, "and by excluding any abortion fund 3 ing, PCAP is deficient as it cannot fulfill its 4 stated objective to combat infant mortality and 5 promote healthier babies." 6 So we have this decision of this 7 learned justice indicating that, by excluding 8 abortion funding, they can not fulfill their 9 stated objectives to combat infant mortality. 10 If that -- that doesn't make any 11 sense, Mr. President; it doesn't take a Phila 12 delphia lawyer to tell us that. 13 And again, in the majority 14 decision referring to PCAP, "The disagreement 15 arises over the right of needy pregnant women to 16 choose an abortion when one is medically 17 indicated or life saving." 18 I believe, Mr. President, with 19 reference to the specific decision and this 20 legislation before this house, this legislation 21 specifically excludes abortion to protect the 22 life of the mother in addition to rape and 23 incest. So it is not analogous to the legis 2246 1 lation before the house. 2 I'd like to, before I close, Mr. 3 President, refer to Justice Murphy's dissent. 4 "The situation at bar is materially different 5 in its enactment of PCAP. The Legislature 6 neither recognized nor purported to address a 7 wider need for comprehensive Medicaid coverage. 8 What the Legislature did do was to extend 9 certain Medicaid benefits selectively in order 10 to assist women with incomes just in excess of 11 the maximum allowable for Medicaid eligibility 12 to afford the often extraordinarily expensive 13 medical care necessary to maintain a healthy 14 pregnancy, the Legislature's express objective 15 being that of reducing to the extent possible, 16 what were widely regarded at the time of PCAP's 17 enactment, to be unacceptably high levels of 18 infant mortality and morbidity attributable to 19 inadequate prenatal care." 20 I don't think, Mr. President, 21 relying on either the majority or the minority 22 opinion in the case, that we can extend their 23 reasoning to this legislation. 2247 1 In addition, Mr. President, this 2 legislation stands on its own two feet. What we 3 are attempting to do here is deny the money to 4 perform abortion, state taxpayers' money, 5 Medicaid abortion, to deny the expenditure of 6 these funds to terminate pregnancies and kill 7 unborn children. 8 Mr. President, I submit that it 9 is unfair and intolerable to utilize money that 10 was intended to assist in the health of adults 11 and children, to utilize that very same money to 12 terminate life. 13 I urge the house to vote for this 14 legislation. 15 ACTING PRESIDENT FARLEY: Senator 16 Present. 17 SENATOR PRESENT: Mr. President, 18 I would ask that the vote on this bill be laid 19 aside. We've had a good debate, and we'll vote 20 on it later. 21 ACTING PRESIDENT FARLEY: The 22 bill is laid aside. 23 SENATOR PRESENT: Mr. President, 2248 1 I -- in behalf of Senator Marino, I'd offer up 2 the privileged resolution that's at the desk, 3 ask that its title be read and that it be acted 4 upon. 5 ACTING PRESIDENT FARLEY: The 6 Secretary will read Senator Marino's privileged 7 resolution. 8 THE SECRETARY: Legislative 9 Resolution, by Senators Marino, Marchi, Goodman, 10 Padavan, Velella, Maltese and Hannon, memor 11 ializing the Federal Communications Commission 12 to waive the cross-ownership rule in the case of 13 the New York Post. 14 ACTING PRESIDENT FARLEY: All in 15 favor of adopting the resolution say aye. 16 (Response of "Aye.") 17 SENATOR GOODMAN: Mr. President. 18 ACTING PRESIDENT FARLEY: Senator 19 Goodman. 20 SENATOR GOODMAN: May I be heard 21 on the resolution, please? 22 ACTING PRESIDENT FARLEY: 23 Certainly, you may be. We'll withdraw the roll 2249 1 call on that. 2 SENATOR GOODMAN: Mr. President, 3 this resolution, of course, relates to the fact 4 that Rupert Murdoch seeks once again to become 5 the publisher of the Post, a position from which 6 he was barred by virtue of an action taken some 7 years ago in the United States Senate by a 8 Senator from Massachusetts, who, because he 9 objected to certain of the contents of the Post, 10 felt that an opportunity presented itself when 11 Mr. Murdoch acquired a television station in New 12 York, to seek to have a ruling that one could 13 not own both a television station and a 14 newspaper in the same market. 15 That action in the United States 16 Senate threw the New York Post into what can 17 only be described as a toboggan ride of in 18 stability over the ensuing year. For some 19 period of time, it was in the hands of its 20 publisher, Mr. Peter Kalikow, who came upon 21 difficult times after a while, indeed came into 22 a condition of bankruptcy, and was forced to 23 sell the Post, and then there was a series of 2250 1 events that can only be described as a madcap 2 roller coaster ride with the New York Post being 3 taken over by first one individual who himself 4 then went into bankruptcy, so that was two 5 bankruptcies involved, and then - 6 Mr. President. 7 SENATOR GALIBER: Mr. President. 8 SENATOR GOODMAN: May I ask for 9 some order, please. 10 ACTING PRESIDENT FARLEY: Yes, 11 let's hold down the conversations. I'm sorry. 12 There's some conversations going on. I'd ask 13 your courtesy to the speaker, please. 14 SENATOR GOODMAN: So after a 15 second bankruptcy, still another individual 16 became involved and, upon the arrival of that 17 individual in the publishership, there was 18 published for all to see an absolutely unique 19 historical document, a picture on the front 20 cover of the New York Post of Alexander 21 Hamilton, the founder of that paper, shedding a 22 tear and, indeed, he might have shed a tear 23 either of laughter or of sadness or both because 2251 1 what ensued was a comic opera of such 2 peculiarity and uniqueness that all of New York 3 stopped its normal workaday business to focus on 4 an absolutely astounding situation. 5 That was that a group of very 6 talented writers and reporters and columnists 7 continued, despite the fact that they'd been 8 ejected from the Post, to publish the paper and 9 in publishing it to exercise their freedom of 10 speech and expression to attack the ir 11 responsibility of the then so-called publisher 12 of the paper. I say "so-called" because the 13 status of publisher was never firmly established 14 during that period. 15 I think the most noteworthy thing 16 about this entire episode was the unique courage 17 shown by this team of reporters who would not 18 let the Post die and who would not let it fall 19 into the hands of irresponsible people who 20 sought to publish it. 21 Now, we have in Albany one member 22 of that unique team, and although it's rarely 23 the habit on this floor to single out a member 2252 1 of the fourth estate for special praise, I do 2 think that this situation does require us to 3 take note of the role of Fred Dicker, who makes 4 his office not far from here and who, from time 5 to time, has lobbed hand grenades on the heads 6 of many of us in this chamber exercising his 7 right of free reportorial expression, but who 8 nonetheless is one of the keenest investigative 9 reporters presently working in the business. 10 As we all know, Fred Dicker 11 received an award for his reportorial excellence 12 and was singled out for his journalistic skill, 13 but I think the brightest page probably in his 14 and the whole paper's history, was this period 15 in which an attempt was made to fire all these 16 people, to still their voices, and what resulted 17 was that they moved out of the headquarters of 18 the New York Post into a local cafeteria, 19 several of them into City Hall, several of them 20 working up here out of their residences, I'm 21 told, and in short doing something which is 22 absolutely unparalleled in the history of United 23 States journalism. 2253 1 The resolution which Senator 2 Marino sponsors and which a number of us 3 co-sponsor, simply to reflect our appreciation 4 of the uniqueness of this situation and the 5 courage demonstrated by a group of people who, 6 economically, were in great, great danger and 7 notwithstanding that, they stuck their head 8 above the trenches and they did battle for what 9 they happened to believe in. 10 Now, no one is under any illusion 11 that this statement or any other that may be 12 made on the floor today will exempt us from 13 future criticism by the Post. Candor compels me 14 also to mention that the governor himself, 15 although he, too, was often the target of Post 16 darts, put himself out in many different ways to 17 try to bring about the continued existence of 18 the paper. 19 So here we have a bipartisan 20 effort with a group of beleaguered journalists, 21 and the happy result apparently, if the 22 resolution we present is activated, that the 23 United States Senate problem which originally 2254 1 resulted in Mr. Murdoch's withdrawal will be 2 withdrawn, and Murdoch can once again come into 3 the ownership and publishership of the Post. 4 As to Mr. Murdoch himself, he 5 comes from a background of very unique report 6 orial involvement. The famous story about him 7 was that his father, who had run a chain of 8 papers, died and Mr. Murdoch one day was brought 9 into the publisher's office by someone 10 considerably older than himself, who said, "Now, 11 young man, you're going to sit there and you 12 will do exactly as you are told," to which Mr. 13 Murdoch replied, "Quite the contrary, my dear 14 sir, I am going to sit where you are now sitting 15 and I will be the publisher of this chain of 16 newspapers." 17 So young Rupert Murdoch just out 18 of knee pants, as the story goes, was in no way 19 unable to express his strength of purpose, and 20 what transpired from that point on is well 21 known. He is today a media baron, highly 22 controversial, drawing an editorial from the New 23 York Times which could only be described as a 2255 1 preachment of editorial ethics, to which the 2 Post promptly responded with a very vigorous 3 rebuttal of the Times' points, and we have the 4 continuation of high drama. 5 That's just what's supposed to 6 happen in a place like New York, and thank God, 7 if this resolution is followed, it will continue 8 to happen for many, many controversial, 9 productive and interesting years to come. 10 ACTING PRESIDENT FARLEY: Thank 11 you, Senator Goodman. 12 Senator Leichter. 13 SENATOR LEICHTER: Mr. President, 14 I thought it was well stated earlier today by 15 Senator Gold that we might come to the same 16 conclusion for different reasons and, while 17 Senator Goodman seems to be in particularly good 18 dramatic voice today, I did want to disassociate 19 myself on a number of things that he said and 20 from many of the statements here, starting, 21 Senator Goodman, with what I thought was a 22 somewhat unfair attack on the Senator from 23 Massachusetts. 2256 1 There happened to be some very 2 solid and good reasons for not allowing the 3 operator of a television station also to own a 4 newspaper, and that is because you don't want 5 anybody to monopolize the news and the public 6 access to information. 7 However, I think the Governor 8 rightly pointed out that, considering the New 9 York market, that risk does not occur, but I 10 think that people of good faith and public 11 concern can express some hesitancy about 12 relaxing the waiver requirement or at least 13 appreciate the reason that this rule exists. 14 As far as your description, you 15 know, of the Post, and so on, it certainly is an 16 amusing paper at times. It's a little shocking 17 at other times. There's a lot of good fiction 18 in it at other times. I certainly want to see 19 the paper survive, and there's some wonderful 20 people who work for it, and I'm going to -- I'm 21 voting for the resolution not for the language 22 in it, but I would like the waiver to be 23 granted. 2257 1 SENATOR GOODMAN: Senator 2 Leichter yield to a question? 3 ACTING PRESIDENT FARLEY: Senator 4 Leichter, would you yield to a question? 5 SENATOR LEICHTER: Yes. 6 SENATOR GOODMAN: We seem to be 7 in a mode at the moment that permits us to 8 express ourselves more expansively than if the 9 budget bills were ready to go, which permits us 10 to address this question you raise. 11 Are you aware that, at the time 12 of this resolution, there was a Boston newspaper 13 under the rule of Rupert Murdoch which was very 14 severely taken to task by the Senator from 15 Massachusetts, and would you think it was a 16 total coincidence that, because that Senator was 17 being criticized repeatedly in the columns, the 18 editorial columns of that Boston newspaper, that 19 it was just happenstance that he decided to take 20 the lead in banning both the ownership of the 21 boston paper and the New York paper? 22 My own judgment is that I think 23 it was not a coincidence. I think he had a 2258 1 specific purpose, and one which perhaps was 2 understandable in this chamber even though we 3 might deplore it and not agree with it. 4 SENATOR LEICHTER: Well, Senator, 5 let me just point out to you that the rule again 6 of permitting somebody to own both a television 7 station and also a newspaper applies. Whether 8 Senator Kennedy had some other considerations in 9 mind, I don't know. I was just saying that 10 there is ample public justification for the 11 rule, and I'm not going to attribute some 12 ulterior, some evil motive to Senator Kennedy or 13 anybody else. 14 Let me say that I don't think 15 anybody has ever described Rupert Murdoch as 16 having enriched or embellished -- "embellished" 17 isn't the right word -- enriched or added to the 18 credibility of the newspaper profession. I 19 think he's, you know, tried to create a lively 20 paper, and he models it somewhat after some of 21 the British dailies which you've seen, and they 22 can be pretty shocking. 23 But I -- my only problem is, when 2259 1 you start waxing so eloquently and so praise 2 worthily about Mr. Murdoch and the Post and some 3 other things that you've said, that just -- I 4 just felt it necessary to disassociate myself 5 from this comment. 6 ACTING PRESIDENT FARLEY: Senator 7 Markowitz. 8 SENATOR MARKOWITZ: I just wanted 9 to add to the comments by adding that I'd like 10 to see the paper, the Post, returned to its 11 working class beginnings, its humble approach to 12 trying to speak for the working person in our 13 city of New York, and I would hope that Mr. 14 Murdoch two or three or whatever this is, that 15 somehow the paper refocuses on that need in New 16 York City. 17 Secondly, the sleaze that that 18 paper represented the first time around, I would 19 hope could be modified. I would like to see 20 nothing more than a stronger New York Post, one 21 that joined with the superb reporting of the 22 Times and Newsday and the Daily News to a large 23 degree. I certainly would like to see the Post 2260 1 also, even if it is a more conservative 2 viewpoint, that's fine, New York City needs all 3 the viewpoints. We don't have to agree with the 4 paper to want to see its success. And that 5 viewpoint, if effectively and properly presented 6 to New York, can add greatly to the vitality of 7 the newspaper industry in New York City. 8 Lastly, I know that those of us 9 that are concerned with the advancement of 10 African-American and Latino viewpoints, it's 11 important that the Post be sensitive to and make 12 sure that their journalistic staff reflects the 13 mosaic of New York City so that, when reporting 14 on stories, they touch and reach out to all the 15 dynamic ethnic and racial groups that make New 16 York City what it is. 17 I hope that -- that Mr. Murdoch 18 and his colleagues will at least attempt to make 19 that happen, and I know all of us feel very 20 strongly that the Post will be once again 21 welcome in New York, and I certainly agree with 22 Senator Goodman that -- that the waiver be 23 granted. 2261 1 ACTING PRESIDENT FARLEY: Senator 2 Gold. 3 SENATOR GOLD: Mr. President, 4 we're doing terrific today in terms of whether 5 we agree or disagree with everybody's logic and 6 maybe from one side of the coin that we all 7 stand up and explain our logic, maybe if we all 8 were quiet, nobody would have to disassociate 9 with anything else. 10 I understand where Senator Mark 11 owitz is coming from, but I want to explain that 12 in my vote, I'm -- I'm going to vote for this 13 because I believe in freedom of speech, not 14 freedom of acceptable speech, and I don't care 15 what the Post prints. If I don't like it, I 16 don't have to buy it; the next guy doesn't have 17 to buy it. 18 And I'm not voting for this bill 19 in the hopes that they change their policies. 20 It's none of my business. They ought to have 21 their own policies and, you know, we go through 22 legislation here where people say, We're going 23 to ban stores from carrying certain books and, 2262 1 of course, I vote against those. I say, you 2 know, don't buy the books. If you don't like 3 what a book store sells, don't buy in that book 4 store. 5 But I think there has to be a 6 very fine line here. I'm glad that when the 7 Post reads Senator Goodman's remarks, they will 8 all feel very, very good and throw out their 9 chests. I understand, if they read somebody 10 else's remarks, they may not feel so good. 11 I think our job is a simple, 12 straight, easy, uncomplicated job, and that's to 13 make sure that there's a free press in America 14 that we can either like or dislike, and that's 15 where we'll spend our money, but I don't think 16 on resolutions like this, it should depend upon 17 any editorial policy or anything of a paper. 18 So I'm voting for it. My views 19 of this paper, I'm sure, are known. They don't 20 have to be put on the record, but the issue here 21 is the supporting of free speech, as I see it. 22 ACTING PRESIDENT FARLEY: Senator 23 Montgomery. 2263 1 SENATOR MONTGOMERY: Thank you, 2 Mr. President. 3 This is a wonderful opportunity 4 of mine at this time in my life to be in the 5 chamber and to hear the deliberations that I 6 hear of mental giants on both sides of every 7 issue imaginable. I learn so much, and I also 8 love the fact that we can have an opinion of our 9 own, and I'm going to go today on the fence, I 10 suppose. 11 I'm really supporting Senator 12 Markowitz in what he said. I think he's 13 absolutely correct that the Post, hopefully, 14 will -- will reflect -- will represent fairly 15 the -- all groups in the city of New York, their 16 views as reflected in our lives and our 17 neighborhoods and, even though the New York 18 Post, about two years ago, one particular writer 19 for the Post tried to destroy my political 20 career, told lies on me in the paper, I still - 21 I remain as a -- as an elected official. I am 22 going to rise above that, and I have overcome my 23 feelings of anger and frustration at the way 2264 1 that that paper portrays not only me but a 2 number of elected officials and a number of 3 other people in a way that I think is totally 4 unfair and uncalled for and unbecoming of a 5 newspaper in such a city as New York. 6 But nonetheless, I want to see 7 the paper survive. I don't buy the paper, and I 8 don't know many of my constituents who do, but 9 those people in the city of New York who want to 10 buy the Post ought to be able to buy it. It 11 ought to be one of the papers that is available 12 to people, and so I am supporting this 13 resolution. 14 But I, like Senator Markowitz, 15 hope that that paper rises to the standard of 16 journalism of some of the other great papers in 17 our City. 18 Thank you. 19 ACTING PRESIDENT FARLEY: On the 20 resolution, all in favor say aye. 21 (Response of "Aye."). 22 Those opposed nay. 23 (There was no response.) 2265 1 The resolution is adopted. 2 Senator Hoffmann. 3 SENATOR HOFFMANN: Yes, Mr. 4 President. 5 I was out of the chamber the 6 other evening, April 1st, at 12:35 a.m., session 7 of March 31st. 8 I would like the record to 9 reflect that, had I been in the chamber at that 10 time, I would have been voting in the negative 11 on Assembly 1351-A, which was substituted for 12 651 in this house, and Assembly 1350-A, which 13 was substituted for 650-B in this house. 14 ACTING PRESIDENT FARLEY: The 15 record will reflect. 16 SENATOR HOFFMANN: Thank you. 17 ACTING PRESIDENT FARLEY: Senator 18 Present. 19 SENATOR PRESENT: Mr. President, 20 could we take up Calendar Number 400, please, 21 and before you do - 22 ACTING PRESIDENT FARLEY: Before 23 we do, Senator Libous, prior to Calendar 400. 2266 1 SENATOR LIBOUS: Thank you, Mr. 2 President. 3 On behalf of Senator LaValle, I 4 wish to call up his bill, Print Number 1398, 5 recalled from the Assembly which is now at the 6 desk. 7 ACTING PRESIDENT FARLEY: 8 Secretary will read Senator LaValle's bill. 9 THE SECRETARY: By Senator 10 LaValle, Senate Bill 1398, providing for 11 extended school days for a district facing 12 unusual circumstances. 13 ACTING PRESIDENT FARLEY: Senator 14 Libous. 15 SENATOR LIBOUS: Mr. President, I 16 now move to reconsider the vote by which this 17 bill was passed. 18 ACTING PRESIDENT FARLEY: Call 19 the roll on reconsideration. 20 (The Secretary called the roll on 21 reconsideration.) 22 ACTING PRESIDENT FARLEY: The 23 bill is before the house. Senator Libous. 2267 1 SENATOR LIBOUS: Mr. President, 2 please commit the bill to Finance. 3 ACTING PRESIDENT FARLEY: The 4 bill is committed to Finance. 5 SENATOR LIBOUS: Thank you. 6 ACTING PRESIDENT FARLEY: 7 Calendar Number 400. There's a substitution. 8 THE SECRETARY: Calendar Number 9 400, Senator Stafford moves to discharge the 10 Committee on Finance from Assembly Bill Number 11 6118-A, and substitute it for the identical 12 Senate Bill Number 4009. 13 ACTING PRESIDENT FARLEY: 14 Substitution is ordered. You can read the last 15 section. 16 Read the title, and then read the 17 last section, I think. 18 THE SECRETARY: Assembly Bill 19 Number 6118-A, an act to amend Chapter 303 of 20 the Laws of 1988, relating to the extension of 21 the state Commission on the Restoration of the 22 Capitol. 23 ACTING PRESIDENT FARLEY: Read 2268 1 the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT FARLEY: Call 5 the roll. 6 (The Secretary called the roll.) 7 SENATOR HOFFMANN: Mr. 8 President. Where in the calendar is the - 9 ACTING PRESIDENT FARLEY: The 10 bill is on your desk right in front of you. 11 SENATOR HOFFMANN: What is the 12 number again, Mr. President? 13 ACTING PRESIDENT FARLEY: 400. 14 SENATOR HOFFMANN: There is no 15 400. 16 ACTING PRESIDENT FARLEY: 4009, 17 I'm sorry. 18 SENATOR HOFFMANN: Close, sorry. 19 Thank you. 20 ACTING PRESIDENT FARLEY: We're 21 calling the roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes 58. 2269 1 ACTING PRESIDENT FARLEY: The 2 bill is passed. 3 SENATOR PRESENT: I'm sorry, that 4 was Calendar 400, it was Bill Number 4009. You 5 don't have any calendar number. I'm just going 6 by what they tell me. 7 Senator Present. 8 SENATOR PRESENT: Mr. President, 9 can we take up Calendar Number 401, which I 10 believe is Senate 4228? 11 ACTING PRESIDENT FARLEY: O.K. We 12 do not have calendars, but there is a bill on 13 your desk, and the number is 4228. 14 THE SECRETARY: Senator Stafford 15 moves to discharge the Committee on Finance from 16 Assembly Bill Number 6490 and substitute it for 17 the identical Senate Bill 4228. 18 ACTING PRESIDENT FARLEY: 19 Substitution is ordered. You can read the 20 title. 21 THE SECRETARY: An act to amend a 22 Chapter of the Laws of 1993, enacting the 23 Legislature and Judiciary Budget, in relation to 2270 1 appropriations made to the Judiciary. 2 SENATOR DOLLINGER: Explanation, 3 Mr. President. 4 ACTING PRESIDENT FARLEY: Senator 5 Stafford, an explanation has been asked for. 6 SENATOR STAFFORD: Thank you. 7 Mr. President, this does not change the numbers 8 in the budget at all. It has been traditional 9 that we really have cut the actual Court of 10 Appeals budget, so this puts $137,000 back into 11 the Court of Appeals and, in effect, takes the 12 137,000 out of the lower courts. 13 SENATOR GOLD: What is that? 14 SENATOR STAFFORD: Court of 15 Appeals has to make the decisions on the 16 137,000. 17 ACTING PRESIDENT FARLEY: Does 18 that answer your question, Senator Dollinger? 19 Senator Dollinger has the floor. 20 SENATOR DOLLINGER: If the 21 chairman of Finance would yield to a question. 22 Just, again, since this came up late, is there a 23 change intended on the back page of this bill 2271 1 at, well, about - 2 SENATOR STAFFORD: Where is the 3 bill? 4 SENATOR DOLLINGER: -- transfers 5 and restriction on transfers, that will also 6 change that. 7 SENATOR STAFFORD: That's a 8 technical correction from the original budget. 9 I'll be glad to explain that to you in case you 10 want me to. 11 SENATOR DOLLINGER: Yeah. I'm 12 just not sure I heard you. Could you repeat 13 that? 14 SENATOR STAFFORD: I didn't hear 15 you. 16 SENATOR DOLLINGER: No, I didn't 17 hear your response to my question. I just asked 18 you to repeat it so I could - 19 SENATOR STAFFORD: Oh. A 20 technical correction to the original budget 21 action, again makes no changes as far as the 22 amounts. 23 SENATOR DOLLINGER: O.K. But it 2272 1 -- but it eliminates a restriction on transfer, 2 as I understand it, that was contained in the 3 original budget; is that correct? 4 SENATOR STAFFORD: No, it does 5 not - 6 SENATOR DOLLINGER: Well, then, 7 maybe you can just identify it. As I understand 8 it, is the bracketed portion deleted that was in 9 the original budget, and now it's deleted? 10 Original provision said that the transfer could 11 not happen until there had been a certificate of 12 approval filed with various offices. That 13 restriction is now deleted; is that correct? 14 SENATOR STAFFORD: Well, I was a 15 speck involved in this, and this was language 16 from the Division of the Budget that they wanted 17 to change, and we agreed to it. 18 SENATOR DOLLINGER: O.K. So that 19 the bracketed section is deleted; is that 20 correct? 21 SENATOR STAFFORD: Yes. 22 SENATOR DOLLINGER: Thank you. 23 ACTING PRESIDENT FARLEY: You can 2273 1 read the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT FARLEY: Call 5 the roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 58. 8 ACTING PRESIDENT FARLEY: The 9 bill is passed. 10 Senator Present. 11 SENATOR PRESENT: Mr. President, 12 I yield to Senator Mendez. 13 ACTING PRESIDENT FARLEY: Senator 14 Mendez. 15 SENATOR MENDEZ: Mr. President, 16 there will be a meeting of the Democratic 17 Conference, the Democratic Conference right 18 after we adjourn. 19 ACTING PRESIDENT FARLEY: 20 Recess. 21 SENATOR MENDEZ: No, after we 22 adjourn. So, all right. All right. There will 23 be an immediate meeting of the Democratic 2274 1 Conference. 2 ACTING PRESIDENT FARLEY: There 3 will be an immediate meeting of the Democratic 4 Conference in their conference room, I presume. 5 Senator Present. 6 SENATOR PRESENT: Mr. President, 7 Mr. President, the Senate will stand at ease 8 awaiting the return of the Minority from their 9 conference. 10 ACTING PRESIDENT FARLEY: The 11 Senate will stand at ease waiting the return of 12 the Democratic Conference. 13 (Whereupon at 6:50 p.m., the 14 Senate stood at ease.) 15 16 17 18 19 20 21 22 23 2275 1 (Whereupon, at 8: 15 p.m., the 2 Senate reconvened. ) 3 ACTING PRESIDENT FARLEY: Senate 4 will come to order. 5 Senator Present. 6 SENATOR PRESENT: Mr. President, 7 will you call up Calendar 402. 8 ACTING PRESIDENT FARLEY: Do we 9 have a Bill Number on that? "4358", I don't 10 think they have that on the calendar. 11 4358. The Secretary will read 12 the title. 13 THE SECRETARY: Senate Bill 14 Number 4358, by the Senate Committee on Rules, 15 proposing amendment to the Constitution sections 16 11, 12, 13 and 16 of Article VII of the 17 Constitution, in relation to the manner of 18 contracting, paying, and refunding state debt. 19 ACTING PRESIDENT FARLEY: Read 20 the last section. This is a constitutional - 21 Okay. Just call the roll on that. 22 All in favor, say aye. 23 (Response of "Aye.") 2276 1 Those opposed, nay. 2 (There was no response.) 3 It is accepted. The resolution 4 is adopted. 5 Senator Present. 6 SENATOR PRESENT: Mr. President, 7 will you take up Calendar 403 which is 4359, 8 Senate. 9 ACTING PRESIDENT FARLEY: 4359. 10 THE SECRETARY: Senate Bill 11 Number 4359, by the Senate Committee on Rules, 12 proposing amendment to the Constitution, 13 sections 2, 10, 11 and 16 of Article VII of the 14 Constitution, in relation to the submission of 15 the capital program and financing plan. 16 ACTING PRESIDENT FARLEY: All in 17 favor, say aye. 18 (Response of "Aye.") 19 Those opposed, nay. 20 (There was no response.) 21 It is accepted. 22 Senator Jones is in the negative. 23 SENATOR JONES: I would like to 2277 1 explain my vote. I'm in the negative. 2 ACTING PRESIDENT FARLEY: Okay. 3 You want to explain your vote, also. 4 SENATOR JONES: Yes. 5 ACTING PRESIDENT FARLEY: Senator 6 Jones to explain her vote. 7 SENATOR JONES: Yes. Mr. 8 President, I would like to explain my vote on 9 this issue. 10 I was very happy to hear the 11 words "debt reform", and certainly that's 12 something the public wants, and it's been a long 13 time coming. So I applaud the efforts in trying 14 to start down the road toward that. 15 However, I'm a little concerned 16 that I see nothing that tells me there is debt 17 reduction. I see in here there is still 18 possibility of incurring more debt, and I don't 19 think that's what the public is looking for. I 20 would hope that -- while I realize this is a 21 year to go, I'm hoping during that year that we 22 will be getting input from our constituents and 23 business and labor leaders and perhaps make some 2278 1 changes so we can also be addressing reduction 2 as well as reform in the way we do our borrowing 3 in this state. 4 So I'm going to have to vote no 5 at this time. 6 ACTING PRESIDENT FARLEY: 7 Results. 8 THE SECRETARY: Ayes 58, nays 1, 9 Senator Jones recorded in the negative. 10 ACTING PRESIDENT FARLEY: 11 Accepted. 12 SENATOR STAFFORD: Mr. 13 President. Can I please announce an immediate 14 meeting of the Committee on Finance. 15 ACTING PRESIDENT FARLEY: The 16 Committee on Finance will meet immediately in 17 Room 332. 18 ACTING PRESIDENT FARLEY: Senator 19 Mega. 20 SENATOR MEGA: Mr. President. 21 Would IT BE appropriate to return to the 22 resolution calendar? I understand there is one 23 item that has been laid aside. 2279 1 ACTING PRESIDENT FARLEY: It is 2 my understanding there is. 3 SENATOR MEGA: I believe it is 4 944. Could that be - 5 ACTING PRESIDENT FARLEY: 944. 6 The Secretary will read the title. 7 THE SECRETARY: Legislative 8 Resolution Number 944, by SenatorS Mega, 9 Maltese, Marino, Volker - 10 SENATOR MEGA: Mr. President. 11 Could we have a little order? 12 ACTING PRESIDENT FARLEY: Yes, 13 let's have a little order here, please. 14 Read the title. 15 THE SECRETARY: Legislative 16 Resolution memorializing Governor Mario M. Cuomo 17 to proclaim May 11th, 1993, as Police Memorial 18 Day and May 9 through 15, 1993, as Police Week 19 in the state of New York. 20 ACTING PRESIDENT FARLEY: Senator 21 Mega, on the resolution. 22 SENATOR MEGA: Yes. Would you 23 take a vote on that resolution, please. 2280 1 ACTING PRESIDENT FARLEY: All in 2 favor of the resolution, say aye. 3 (Response of "Aye.") 4 Those opposed, nay. 5 (There was no response.) 6 The resolution is adopted. 7 SENATOR MEGA: Mr. President. I 8 would like to advise the members that any member 9 who would like to go on that resolution is more 10 than welcome to be a co-sponsor. 11 ACTING PRESIDENT FARLEY: The 12 resolution is open to members. Please approach 13 the desk or raise your hand. 14 (Whereupon, hands were raised. ) 15 ACTING PRESIDENT FARLEY: Senator 16 Present, do you want all the Republicans - 17 Senator Hoffmann. 18 SENATOR HOFFMANN: Yes, and I am 19 down on the previous bill, please, with 20 unanimous consent, Mr. President. 21 ACTING PRESIDENT FARLEY: The 22 Constitutional Amendment with Senator Jones. 23 She's also down. 2281 1 ACTING PRESIDENT FARLEY: Just a 2 moment. We are accepting people that want to be 3 on Senator Mega's resolution and then we will 4 go - 5 That resolution has been passed. 6 Now, there was a motion by Senator Hoffmann, a 7 request to be down on that second amendment to 8 the Constitution? 9 SENATOR HOFFMANN: The 10 Constitutional Amendment, Mr. President. 11 ACTING PRESIDENT FARLEY: 4359. 12 Is that it? Is that the one Senator Jones was 13 down on. 14 One at a time. Senator Hoffmann 15 is down on that. Senator Oppenheimer is down on 16 that. 17 SENATOR PRESENT: Without 18 objection. 19 ACTING PRESIDENT FARLEY: Anybody 20 else? That's it. 21 SENATOR PRESENT: Mr. President. 22 ACTING PRESIDENT FARLEY: Senator 23 Present. 2282 1 SENATOR PRESENT: We will stand 2 in recess pending the return of a report from 3 the Finance Committee. 4 ACTING PRESIDENT FARLEY: The 5 Senate will stand easy, in recess, pending the 6 report of the Finance Committee. 7 SENATOR PRESENT: No vote will be 8 taken. Then we will recess until 10:00 o'clock 9 so somebody can go out and get something to eat, 10 then we will take up bills after 10:00. 11 ACTING PRESIDENT FARLEY: That's 12 10:00 p.m.? 13 SENATOR PRESENT: Try and get 14 back promptly at 10:00. 15 ACTING PRESIDENT FARLEY: That's 16 10:00 o'clock tonight, right? 17 All right. The Senate will stand 18 in recess until 10:00 p.m. 19 Senator Present. Senator 20 Present. Senator present. Should we stay here 21 to accept that Finance Committee report? 22 SENATOR PRESENT: Yes. 23 SENATOR OHRENSTEIN: Mr. 2283 1 President. I'm going to announce a Democratic 2 Conference for 10:00 p.m. 3 ACTING PRESIDENT FARLEY: Okay. 4 There is a Democratic Conference at 10:00 p.m. 5 ACTING PRESIDENT FARLEY: Senator 6 Present. I can't hear the Majority Leader here. 7 SENATOR PRESENT: Mr. President. 8 ACTING PRESIDENT FARLEY: Senator 9 Present. 10 SENATOR PRESENT: I have been 11 asked if I would announce the following for 12 general information. The following restaurants 13 are open. 14 (An announcement relating to 15 restaurants was made.) 16 (Whereupon, at 8:30 p.m., the 17 Senate reconvened. ) 18 ACTING PRESIDENT FARLEY: Senate 19 will come to order. 20 SENATOR PRESENT: Mr. President. 21 Is there a report from a standing committee at 22 the desk? 23 ACTING PRESIDENT FARLEY: Yes, 2284 1 there is. 2 SENATOR PRESENT: May we have it 3 read, please. 4 ACTING PRESIDENT FARLEY: Clerk 5 will read. 6 THE SECRETARY: Senator Stafford, 7 from the Committee on Finance, reports the 8 following bills directly for third reading: 9 Senate Bill Number 652B, a Budget 10 Bill, making appropriations for legal 11 requirements of the state debt service. 12 Senate Bill Number 4360, by the 13 Committee on Rules, an act to amend the Family 14 Court Act, the Social Services Law, the Civil 15 Practice Law and Rules. 16 Also, Senate Bill Number 4361, by 17 Senator Marino and others, amends Chapter 796 of 18 the Laws of 1992, relating to the establishment 19 of the Higher Education Applied Technology 20 Program. 21 Also, Senate Bill Number 4362, by 22 the Committee on Rules, an act to amend the 23 Public Authorities Law, in relation to the 2285 1 bonding authority of the Environmental 2 Facilities Corporation. 3 All four bills reported directly 4 for third reading. 5 ACTING PRESIDENT FARLEY: Without 6 objection, third reading. 7 SENATOR PRESENT: Mr. President. 8 Senate shall stand in recess until 10:00 p.m. 9 ACTING PRESIDENT FARLEY: Senate 10 shall stand in recess until 10:00 p.m. 11 (Whereupon, at 8: 35 p.m., the 12 Senate recessed.) 13 (Whereupon, at 11: 46 p.m., 14 Senate reconvened. ) 15 ACTING PRESIDENT FARLEY: Senator 16 Present. 17 SENATOR PRESENT: On behalf of 18 Senator Levy, I would like to call an immediate 19 conference of the Majority in Room 332. 20 Immediate conference of the Majority. 21 ACTING PRESIDENT FARLEY: There 22 will be an immediate conference of the Majority 23 in Room 332. 2286 1 SENATOR PRESENT: The Senate will 2 continue to stand at ease. 3 ACTING PRESIDENT FARLEY: The 4 Senate will continue to stand at ease. But all 5 Senators within the sound of my voice, there is 6 an immediate conference of the Majority in Room 7 332. 8 (Whereupon, at 11: 46 p.m., 9 Senate continued in recess.) 10 (Whereupon, at 12: 44 a.m., 11 Senate reconvened. ) 12 THE PRESIDENT: Senate will come 13 to order. 14 Senator Present. 15 SENATOR PRESENT: Mr. President, 16 can we take up Calendar 399. 17 THE PRESIDENT: Secretary will 18 read. 19 THE SECRETARY: Calendar Number 20 399, by Senator Maltese, Senate Bill Number 21 4038, an act to amend the Social Services Law, 22 in relation to medical assistant exclusion. 23 SENATOR GOLD: Slow roll call. 2287 1 THE PRESIDENT: Slow roll call is 2 requested. All those Senators who wish to take 3 a slow roll call, please rise. 4 THE PRESIDENT: The chair will 5 advise the Acting Majority Leader that five 6 Senators have not risen. 7 SENATOR GOLD: ... four, five, 8 six, seven... forty... forty-two -- come on. 9 THE PRESIDENT: Slow roll call. 10 THE SECRETARY: Senator Babbush, 11 excused. Senator Bruno. 12 SENATOR BRUNO: Yes. 13 THE SECRETARY: Senator Connor. 14 SENATOR CONNOR: No. 15 THE SECRETARY: Senator Cook. 16 Senator Cook. 17 SENATOR COOK: No. 18 THE SECRETARY: Senator Daly. 19 SENATOR DALY: Yes. 20 THE SECRETARY: Senator 21 DeFrancisco. 22 SENATOR DeFRANCISCO: Yes. 23 THE SECRETARY: Senator 2288 1 Dollinger. 2 (There was no response.) 3 Senator Espada. 4 SENATOR ESPADA: No (indicating). 5 THE SECRETARY: Senator Farley. 6 THE PRESIDENT: Senator Farley is 7 recognized to explain his vote. 8 SENATOR FARLEY: I just want to 9 be heard on this bill to explain my vote. Every 10 year, we seem to do this for the past seventeen 11 years that I have been here. Generally 12 speaking, we've had to vote on an amendment. 13 This is a live bill. This is one that is 14 reasonable. This is one that puts us in 15 conformity with about 43 other states. It's a 16 bill that speaks of rape, incest, and the life 17 or health of the mother. It's a reasonable 18 piece of legislation. It represents the will of 19 this house. It is something that has always 20 been mentioned that Senator Donovan who was the 21 champion in this area always wanted to do, and I 22 think its time has come. I think it's a 23 reasonable bill, and one that I hope will be 2289 1 supported by this house. 2 I vote aye. 3 THE PRESIDENT: Senator Farley 4 votes aye. 5 THE SECRETARY: Senator Galiber. 6 (There was no response.) 7 Senator Gold. 8 SENATOR GOLD: Negative. 9 THE SECRETARY: Senator 10 Gonzalez. 11 SENATOR GONZALEZ: No. 12 THE SECRETARY: Senator Goodman. 13 SENATOR GOODMAN: No. 14 THE SECRETARY: Senator 15 Halperin. 16 SENATOR HALPERIN: Here. Oh! 17 No. 18 THE SECRETARY: Senator Hannon. 19 SENATOR HANNON: Yes. 20 THE SECRETARY: Senator Hoffmann. 21 SENATOR HOFFMANN: No. 22 THE SECRETARY: Senator Holland. 23 SENATOR HOLLAND: Yes. 2290 1 THE SECRETARY: Senator Johnson. 2 SENATOR JOHNSON: Aye. 3 THE SECRETARY: Senator Jones. 4 SENATOR JONES: No. 5 THE SECRETARY: Senator Kuhl. 6 SENATOR KUHL: Yes. 7 THE SECRETARY: Senator lack. 8 SENATOR LACK: Yes. 9 THE SECRETARY: Senator Larkin. 10 SENATOR LARKIN: Yes. 11 THE SECRETARY: Senator LaValle. 12 SENATOR LAVALLE: Aye. 13 THE SECRETARY: Senator Leichter. 14 SENATOR LEICHTER: No. 15 THE SECRETARY: Senator Levy. 16 SENATOR LEVY: Aye. 17 THE SECRETARY: Senator Libous. 18 SENATOR LIBOUS: Aye. 19 THE SECRETARY: Senator Maltese. 20 SENATOR MALTESE: Aye. 21 THE SECRETARY: Senator Marchi. 22 SENATOR MARCHI: Aye. 23 THE SECRETARY: Senator Marino. 2291 1 (Indicating "Aye." ) 2 THE SECRETARY: Aye. Senator 3 Markowitz. 4 THE PRESIDENT: Senator Markowitz 5 is recognized. 6 SENATOR MARKOWITZ: To explain my 7 vote for a moment. 8 Senator Farley called Senator 9 Donovan a blessed memory, and he was a blessed 10 memory, and there was no member of this Senate 11 that was more passionate about this issue and 12 many other issues, most of which I agreed with. 13 But as if he was sitting right 14 next to you, Senator Farley, he would expect me 15 to get up at this moment with a smile on his 16 face as you're smiling and say that on this 17 issue he was wrong and you are wrong, and that 18 poor women deserve what other women enjoy and 19 have a right to expect, the right of choice. 20 I vote no. 21 THE SECRETARY: Senator 22 Masiello. 23 SENATOR MASIELLO: No. 2292 1 THE SECRETARY: Senator Mega. 2 SENATOR MEGA: Yes. 3 THE SECRETARY: Senator Mendez. 4 SENATOR MENDEZ: No. 5 THE SECRETARY: Senator 6 Montgomery. 7 SENATOR MONTGOMERY: No. 8 THE SECRETARY: Senator Nolan. 9 (There was no response.) 10 Senator Nozzolio. 11 SENATOR NOZZOLIO: Yes. 12 THE SECRETARY: Senator 13 Ohrenstein. 14 (Indicating "No." ) 15 THE SECRETARY: No. Senator 16 Onorato. 17 SENATOR ONORATO: Aye. 18 THE SECRETARY: Senator 19 Oppenheimer. 20 (There was no response.) 21 Senator Padavan. 22 SENATOR PADAVAN: Yes. 23 THE SECRETARY: Senator Pataki. 2293 1 SENATOR PATAKI: Yes. 2 THE SECRETARY: Senator 3 Paterson. 4 SENATOR PATERSON: No. 5 THE SECRETARY: Senator Present. 6 SENATOR PRESENT: No. 7 THE SECRETARY: Senator Saland. 8 SENATOR SALAND: Aye. 9 THE SECRETARY: Senator 10 Santiago. 11 SENATOR SANTIAGO: No. 12 THE SECRETARY: Senator Sears. 13 SENATOR SEARS: Aye. 14 THE SECRETARY: Senator Seward. 15 SENATOR SEWARD: No. 16 THE SECRETARY: Senator Sheffer. 17 SENATOR SHEFFER: Yes. 18 THE SECRETARY: Senator Skelos. 19 SENATOR SKELOS: Yes. 20 THE SECRETARY: Senator Smith. 21 SENATOR SMITH: No. 22 THE SECRETARY: Senator Solomon. 23 (There was no response.) 2294 1 Senator Spano. 2 SENATOR SPANO: No. 3 THE SECRETARY: Senator 4 Stachowski. 5 SENATOR STACHOWSKI: Yes. 6 THE SECRETARY: Senator 7 Stafford. 8 SENATOR STAFFORD: Aye. 9 THE SECRETARY: Senator 10 Stavisky. 11 (There was no response.) 12 Senator Trunzo. 13 SENATOR TRUNZO: Yes. 14 THE SECRETARY: Senator Tully. 15 SENATOR TULLY: Aye. 16 THE SECRETARY: Senator Velella. 17 SENATOR VELELLA: Yes. 18 THE SECRETARY: Senator Volker. 19 SENATOR VOLKER: Yes. 20 THE SECRETARY: Senator Waldon. 21 SENATOR WALDON: No (indicating). 22 THE SECRETARY: Senator Wright. 23 SENATOR WRIGHT: No. 2295 1 THE PRESIDENT: Secretary will 2 call the absentees. 3 THE SECRETARY: Senator 4 Dollinger. 5 SENATOR DOLLINGER: No. 6 THE SECRETARY: Senator Galiber. 7 (There was no response.) 8 Senator Nolan. 9 (There was no response.) 10 Senator Oppenheimer. 11 SENATOR OPPENHEIMER: No. 12 THE SECRETARY: Senator Solomon. 13 SENATOR SOLOMON: No. 14 THE SECRETARY: Senator 15 Stavisky. 16 THE PRESIDENT: Secretary will 17 call the results. 18 THE SECRETARY: Ayes 31, nays 19 26. 20 THE PRESIDENT: Senator Galiber, 21 you are not recorded. 22 SENATOR GALIBER: No. 23 THE PRESIDENT: Senator Galiber 2296 1 votes no. 2 THE SECRETARY: Ayes 31, nays 3 27. 4 THE PRESIDENT: The bill is 5 passed. 6 Senator Present. 7 SENATOR PRESENT: Mr. President. 8 Would you call up - 9 SENATOR GOLD: Hold up. Mr. 10 President. 11 THE PRESIDENT: Senator Gold. 12 SENATOR GOLD: Can I get a 13 detailed statement, please, of that vote? 14 THE SECRETARY: In relation to 15 Calendar Number 399, those who voted in the 16 affirmative: Senators Bruno, Daly, DeFrancisco, 17 Farley, Hannon, Holland, Johnson, Kuhl, lack, 18 Larkin, LaValle, Levy, Libous, Maltese, Marchi, 19 Marino, Mega, Nozzolio, Onorato - 20 SENATOR GOLD: Excuse me. How 21 was Senator Nolan voted? 22 SENATOR NOLAN: Yes. 23 THE PRESIDENT: Senator Nolan was 2297 1 not recorded. 2 SENATOR GOLD: Oh, I'm sorry. 3 That's what I was concerned about. And Senator 4 Stavisky -- how was he recorded? 5 SENATOR STAVISKY: No. 6 SENATOR GOLD: Yes, that's him. 7 That's him. 8 THE PRESIDENT: There will be 9 order in the chamber. Senator Nolan voted yes, 10 and Senator Stavisky voted no. 11 SENATOR GOLD: I think it's right 12 now. I withdraw the request and ask the vote be 13 called. 14 THE PRESIDENT: Secretary will 15 again report the results. 16 THE SECRETARY: Ayes 32, nays 17 28. 18 THE PRESIDENT: The bill is 19 passed. 20 Senator Present. 21 SENATOR PRESENT: Mr. President. 22 Let's take up Calendar 404, which is Senate Bill 23 652B. 2298 1 THE PRESIDENT: Secretary will 2 read. 3 THE SECRETARY: Calendar Number 4 404. Senator Stafford moves to discharge the 5 Committee on Finance from Assembly Bill Number 6 1352A and substitute it for the identical Senate 7 Bill 652B. 8 THE PRESIDENT: Substitution 9 ordered. 10 SENATOR PRESENT: Mr. President, 11 is there a message at the desk? 12 THE PRESIDENT: There is a 13 message of necessity at the desk. 14 SENATOR PRESENT: I move that we 15 accept the message. 16 THE PRESIDENT: On the motion. 17 All those in favor, say aye. 18 (Response of "Aye."). 19 Opposed, nay. 20 (Response of "Nay.") 21 The motion is agreed to. 22 Third reading. 23 THE SECRETARY: Calendar Number 2299 1 404, substituted earlier, Assembly Budget Bill, 2 Assembly Bill Number 1352A, an act making 3 appropriations for the legal requirements of the 4 state debt service. 5 THE PRESIDENT: Read the last 6 section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 THE PRESIDENT: Call the roll. 10 (The Secretary called the roll. ) 11 THE SECRETARY: Ayes 56, nays 4. 12 Senators Dollinger, Hoffmann, Jones and 13 Stachowski recorded in the negative. 14 THE PRESIDENT: The bill is 15 passed. 16 Senator Hannon. 17 SENATOR HANNON: Mr. President. 18 I wish to call up my bill, Print Number 3420, 19 recalled from the Assembly which is now at the 20 desk. 21 THE PRESIDENT: Secretary will 22 read. 23 THE SECRETARY: Senate Bill 2300 1 Number 3420, by Senator Hannon, an act to amend 2 Chapter 915 of the Laws of 1992, amending the 3 Public Authorities Law. 4 SENATOR HANNON: Mr. President. 5 I now move to reconsider the vote by which this 6 bill passed this house. 7 THE PRESIDENT: The Secretary 8 will call the roll on reconsideration. 9 (The Secretary called the roll on 10 reconsideration. ) 11 THE SECRETARY: Ayes 60. 12 THE PRESIDENT: The bill is 13 before the house. 14 SENATOR HANNON: Mr. President, I 15 now offer the following amendments and move to 16 discharge the Committee on Corporations, 17 Authorities and Commissions from Assembly Print 18 Number 6996 and substitute it for my identical 19 bill 3420A. 20 THE PRESIDENT: Substitution 21 ordered. 22 SENATOR HANNON: I now move that 23 the substituted Assembly bill have its third 2301 1 reading at this time. 2 THE PRESIDENT: Read the last 3 section. 4 THE SECRETARY: Section 2. This 5 act shall take effect immediately. 6 THE PRESIDENT: Call the roll. 7 (The Secretary called the roll. ) 8 THE SECRETARY: Unanimous. 9 THE PRESIDENT: The bill is 10 passed. 11 SENATOR LEICHTER: Mr. President. 12 THE PRESIDENT: Senator Leichter. 13 SENATOR LEICHTER: Is that the 14 same vote as there was last time? 15 THE PRESIDENT: Senator Leichter, 16 the chair will advise that the bill was 17 originally passed unanimously. 18 SENATOR LEICHTER: May I have the 19 same vote? 20 THE PRESIDENT: It does have the 21 same vote. Thank you. 22 Senator Present. 23 SENATOR PRESENT: Mr. President. 2302 1 Let's take up Calendar 405, which is Senate 2 4360. 3 THE PRESIDENT: Secretary will 4 read. 5 THE SECRETARY: Calendar Number 6 405. Senator Stafford moves to discharge the 7 Committee on Finance from Assembly Bill Number 8 7588, and substitute it for the identical Senate 9 Bill 4360. 10 THE PRESIDENT: Substitution 11 ordered. 12 SENATOR PRESENT: Mr. President, 13 is there a message of necessity at the desk? 14 THE PRESIDENT: There is a 15 message at the desk. 16 SENATOR PRESENT: I move we 17 accept the message. 18 THE PRESIDENT: On the motion. 19 All those in favor, say aye. 20 (Response of "Aye.") 21 Opposed, nay. 22 (There was no response.) 23 The ayes have it. The motion is 2303 1 adopted. 2 Read the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 THE PRESIDENT: Call the roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 57. Those 8 recorded in the negative on -- those recorded in 9 the negative on Calendar Number 405 are Senators 10 Espada, Galiber, Hoffmann, Leichter, Mendez, 11 Montgomery, Nolan, Santiago, Smith, Stavisky and 12 Waldon. Ayes 49, nays 11. 13 THE PRESIDENT: The bill is 14 passed. 15 Senator Present. 16 SENATOR PRESENT: Mr. President, 17 let's take up Calendar 406, which is Senate 18 4361. 19 THE PRESIDENT: Secretary will 20 read. 21 THE SECRETARY: Calendar Number 22 406. Senator Marino moves to discharge the 23 Committee on Finance from Assembly Bill Number 2304 1 7587 and substitute it for the identical Senate 2 Bill 4361. 3 THE PRESIDENT: Substitution 4 ordered. 5 SENATOR PRESENT: Mr. President. 6 Is there a message of necessity at the desk? 7 THE PRESIDENT: There is a 8 message of necessity at the desk. 9 SENATOR PRESENT: I move we 10 accept the message. 11 THE PRESIDENT: On the motion. 12 All those in favor, say aye. 13 (Response of "Aye.") 14 Opposed, nay. 15 (There was no response.) 16 The ayes have it. The motion is 17 agreed to. 18 Read the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect immediately. 21 THE PRESIDENT: Call the roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes 59, nays 1. 2305 1 Senator Hoffmann recorded in the negative. 2 THE PRESIDENT: The bill is 3 passed. 4 Senator Present. 5 SENATOR MARKOWITZ: Mr. 6 President. 7 THE PRESIDENT: Senator 8 Markowitz. 9 SENATOR MARKOWITZ: Please record 10 me in the negative on S. 4360. 11 THE PRESIDENT: Without 12 objection, so ordered. 13 Senator Connor. 14 SENATOR CONNOR: Thank you, Mr. 15 President. I would like to be recorded in the 16 negative on S. 4360. 17 THE PRESIDENT: Without 18 objection, so ordered. 19 SENATOR CONNOR: Thank you, Mr. 20 President. 21 THE PRESIDENT: Senator Present. 22 SENATOR PRESENT: Mr. President. 23 Let's take up Calendar 407, which is Senate 2306 1 4362. 2 THE PRESIDENT: Secretary will 3 read. 4 THE SECRETARY: Calendar Number 5 407. Senator Stafford moves to discharge the 6 Committee on Finance from Assembly Bill Number 7 7589 and substitute it for the identical Senate 8 Bill 4362. 9 THE PRESIDENT: Substitution 10 ordered. 11 SENATOR PRESENT: Mr. President. 12 Is there a message at the desk? 13 THE PRESIDENT: There is a 14 message at the desk. 15 SENATOR PRESENT: I move we 16 accept the message. 17 THE PRESIDENT: On the motion. 18 All those in favor, say aye. 19 (Response of "Aye.") 20 Opposed, nay. 21 (There was no response.) 22 The ayes have it. The motion is 23 agreed to. 2307 1 SENATOR LEICHTER: Mr. President. 2 THE PRESIDENT: Senator Leichter. 3 SENATOR LEICHTER: Mr. 4 President. I have an amendment at the desk. 5 THE PRESIDENT: Senator 6 Leichter's amendment. 7 SENATOR LEICHTER: Mr. 8 President. I waive the reading, ask an 9 opportunity to give a most brief explanation. 10 Mr. President, my colleagues, 11 among other provisions in this omnibus bill is 12 one which again defers the EPIC program and also 13 an increase in the bonding capacity of the Urban 14 Development Corporation. I think it's about 15 time that we implemented EPIC. I think UDC has 16 borrowed enough money. I question many of their 17 projects. And for that reason, I offer you this 18 amendment to delete those two provisions from 19 the bill. 20 THE PRESIDENT: On the amendment. 21 All those in favor, say aye. 22 (Response of "Aye.") 23 Opposed, nay. 2308 1 (Response of "Nay.") 2 In the opinion of the chair, the 3 nays have it. The amendment is not agreed to. 4 I have this instinctive ability to tell. 5 Read the last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 THE PRESIDENT: Call the roll. 9 (The Secretary called the roll. ) 10 THE PRESIDENT: Senator Mega. 11 SENATOR MEGA: Mr. President. 12 May I have unanimous consent to be excused from 13 voting? 14 THE PRESIDENT: Without 15 objection, so ordered. 16 THE SECRETARY: Those recorded in 17 the negative on Calendar Number 407 are Senators 18 Daly, DeFrancisco, Dollinger, Hoffmann, Jones, 19 Libous, Masiello, Padavan, Pataki, Seward, 20 Stachowski and Wright. Ayes -- also Senator 21 Saland in the negative. Ayes 46, nays 13. 22 THE PRESIDENT: The bill is 23 passed. 2309 1 Senator Present. 2 SENATOR PRESENT: Mr. President, 3 there being no further business, I move we 4 adjourn until Monday, April 5, at 1:07. 5 THE PRESIDENT: Senate stands 6 adjourned. 7 (Whereupon, at 1:07 a.m., the 8 Senate adjourned. ) 9 10 11 12 13 14 15