Tuesday, April 30, 1996

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