Monday, March 10, 1997

1300 1 2 3 4 5 6 7 ALBANY, NEW YORK 8 March 10, 1997 9 3:02 p.m. 10 11 12 REGULAR SESSION 13 14 15 16 17 LT. GOVERNOR BETSY McCAUGHEY ROSS, President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 24 25 1301 1 P R O C E E D I N G S 2 THE PRESIDENT: The Senate will 3 come to order. Would everyone please rise and 4 join with me in the Pledge of Allegiance. 5 (The assemblage repeated the 6 Pledge of Allegiance to the Flag.) 7 THE PRESIDENT: The invocation 8 today will be given by Reverend Dr. Paul Smith 9 who is the Pastor of the First Presbyterian 10 Church in Brooklyn. Reverend Smith. 11 REVEREND DR. PAUL SMITH: Let us 12 pray. 13 Sanctity asks the question, "Is 14 it fair?" Expedience asks the question, "Is it 15 politick?" Courtesy asks the question,"Is it 16 safe?" But conscience always asks the question, 17 "Is it right?" 18 In this moment of reflection and 19 prayer, we ask for guidance, wisdom and strength 20 for these legislators, that they may always ask 21 the question, is it right? 22 We pray for the power of Your 23 spirit to rain down upon them and us so they may 24 be persuaded to follow their conscience as they 25 act on behalf of those who have elected them to 1302 1 office. 2 As the session begins, keep their 3 minds and hearts focused on the needs of our 4 state and the needs of our constituents, that we 5 may all be drawn closer together. Amen. 6 THE PRESIDENT: The reading of 7 the Journal, please. 8 THE SECRETARY: In Senate, 9 Friday, March 7th. The Senate met pursuant to 10 adjournment. The Journal of Thursday, March 11 6th, was read and approved. On motion, Senate 12 adjourned. 13 THE PRESIDENT: Without 14 objection, the Journal stands approved as read. 15 Presentation of petitions. 16 Messages from the Assembly. 17 Messages from the Governor. 18 Reports of standing committees. 19 The Secretary will read. 20 THE SECRETARY: Senator Hannon, 21 from the Committee on Health, reports the 22 following bills: 23 Senate Print 1188, by Senator 24 Velella, an act establishing the Chronic Care 25 Management Demonstration Program; and 1303 1 Senate Print 1913, by Senator 2 Libous, an act to amend the Public Health Law 3 and the Insurance Law. 4 Both bills ordered direct to 5 third reading. 6 THE PRESIDENT: All bills direct 7 to third reading. 8 Reports of select committees. 9 Communications and reports from 10 state officers. 11 Motions and resolutions. 12 Senator Farley. 13 SENATOR FARLEY: Thank you, Madam 14 President. 15 I wish to call up, on behalf of 16 Senator DeFrancisco, Senate Print 477 that was 17 recalled from the Assembly, which is now at the 18 desk. 19 Secretary will read the title. 20 THE PRESIDENT: Secretary will 21 read. 22 THE SECRETARY: Calendar Number 23 61, by Senator DeFrancisco, Senate Print 477, an 24 act to amend the Real Property Tax Law. 25 SENATOR FARLEY: Madam President, 1304 1 I now move to reconsider the vote by which this 2 bill was passed. 3 THE PRESIDENT: Call the roll on 4 reconsideration, please. 5 (The Secretary called the roll on 6 reconsideration.) 7 THE SECRETARY: Ayes 31. 8 SENATOR FARLEY: Madam President, 9 I now offer the following amendments. 10 THE PRESIDENT: Amendments 11 received. 12 Senator Bruno. 13 SENATOR BRUNO: Madam President, 14 I believe I have a resolution at the desk number 15 637. I would ask that the title be read and 16 move for its immediate adoption. 17 THE PRESIDENT: The Secretary 18 will read. 19 THE SECRETARY: By Senator Bruno, 20 Legislative Resolution 637, commemorating the 21 20th Anniversary of the Organization of New York 22 State Management and Confidential Employees. 23 THE PRESIDENT: The question is 24 on the resolution. 25 All in favor, signify by saying 1305 1 aye. 2 (Response of aye.) 3 Opposed, nay. 4 (There was no response.) 5 The resolution is adopted. 6 Senator Bruno. 7 SENATOR BRUNO: Madam President, 8 I believe there is another privileged resolution 9 by Senator LaValle at the desk. I would ask the 10 title be read and move for its immediate 11 adoption. 12 THE PRESIDENT: Resolution 636, 13 the Secretary will read. 14 THE SECRETARY: By Senator 15 LaValle, Legislative Resolution 636, paying 16 tribute to Dr. Irwin Polishook, in recognition 17 of his many accomplishments and his 18 distinguished service as President of the 19 Professional Staff Congress. 20 Senator LaValle. 21 SENATOR LAVALLE: Thank you, 22 Madam President. 23 Madam President, the resolution 24 before us today recognizes Dr. Irwin Polishook 25 for the 20 years that he has been in the 1306 1 presidency of the Professional Staff Congress. 2 He has not only been president, but he was one 3 of the founding members and officers of the 4 Professional Staff Congress. He was elected 5 treasurer, co-treasurer, 1972. 6 He has been a very, very 7 distinguished member of the CUNY faculty at 8 Lehman College, at Hunter, and at the Graduate 9 Center. 10 Many of you know Irwin Polishook 11 who has walked the halls of this Capital for 12 those 20 years asking for what is right so that 13 the students who attend City University -- who 14 attend not only City University but all of the 15 institutions of higher education would have 16 access and the ability to move forward and seek 17 and be all that they could be, and certainly in 18 that regard he has represented the faculty and 19 on the various issues that concern them, but 20 their issues are our issues, and that is the 21 students of this state. 22 What is important for me is that 23 Irwin Polishook has distinguished himself in the 24 manner that he has lobbied for the faculty, for 25 the students, for higher education because it 1307 1 has been in the most professional way. I don't 2 believe -- while there are people who lobby and 3 there are histrionics, Irwin Polishook I think 4 uses his great intelligence, his wit, to win 5 over a person who has a disparate view but 6 always does so in a very gentlemanly, sincere 7 and straightforward way. 8 So I think any of us who serve 20 9 years in a position, whether it's here in the 10 Senate, in the Legislature, but certainly as 11 President of the Professional Staff Congress, I 12 think should be both congratulated and 13 recognized, and that's why I rise and move the 14 resolution, Madam President. 15 THE PRESIDENT: Senator Stavisky. 16 SENATOR STAVISKY: These are 17 difficult times for education, higher education, 18 as well as elementary and secondary education, 19 and there are few people in the state of New 20 York who command the respect and the appreci 21 ation and the admiration of the citizenry that 22 Irwin Polishook presents. He is an outstanding, 23 an outstanding labor leader. He is a gifted 24 educator. He is someone whom we should all 25 recognize and appreciate for his skill and his 1308 1 ability to discuss these issues. 2 Were it not for Irwin Polishook's 3 leadership, some of the funding for higher 4 education, especially in the City University of 5 New York, would not have been restored after 6 there were reductions in the budget. 7 Were it not for Irwin Polishook's 8 leadership, some of the programs that benefit 9 the students and faculty and some of the tuition 10 increases that have been proposed would not have 11 been reversed. He is an outstanding, 12 fair-minded gentleman whom I have known for more 13 than 20 years, and he is very much appreciated 14 by those of us who have had contact with him and 15 those of us who have had the chance to 16 appreciate his talent. 17 Irwin Polishook, you have friends 18 here and I think that almost every member of the 19 Legislature should join us in this tribute to 20 you. 21 THE PRESIDENT: Senator Farley. 22 SENATOR FARLEY: Yes, thank you, 23 Madam President. 24 I also rise to support this 25 resolution by Senator LaValle and others and to 1309 1 say as a colleague, as a professor for most of 2 my adult life, of Irwin, to say how successful 3 he has been in enhancing higher education in 4 this state. He speaks for one of the great 5 public institutions in the world and with the 6 city of New York. And let me just say that 7 we're grateful for all that you've done for not 8 only the students, but for New York State and 9 for higher education. I'm pleased to consider 10 you a colleague and a friend and somebody that 11 has really been of great service, not only to 12 higher education, but to New York State. 13 THE PRESIDENT: Senator Marchi. 14 SENATOR MARCHI: Madam President, 15 it should fill Irwin Polishook's heart with 16 satisfaction to hear these genuine expressions 17 from members of the Legislature. His service is 18 rendered in impeccably gentle fashion but the 19 gentle fashion that only strong people can 20 exercise because he carries with it credibility. 21 I remember very well when I 22 worked with Dr. Lester Granger and we were not 23 happy with the rather restrictive access that 24 minorities had to higher education, and as we 25 moved, it wasn't an easy task, but we had 1310 1 friends along the way and it came to pass that 2 important programs such as SEEK took place, and 3 wider admissions and wider access. When we 4 started at that time, we had one percent of the 5 City University or those facilities that made it 6 up, had one percent minority, and Lester Granger 7 himself was a professor, had been leader of the 8 Urban League before Whitney Young, was a 9 professor in Louisiana, and with a -- just a 10 small part of that population, there were that 11 many in institutions of higher learning, 12 segregated, true, but they were doing something 13 we were failing to do. 14 And well I remember the energetic 15 response we had and that includes you, Senator 16 Stavisky, because I remember very well your 17 voice was loud and clear in the Assembly at that 18 time, I believe - 19 SENATOR STAVISKY: That's right. 20 SENATOR MARCHI: -- and things 21 happen; and more importantly, when the stresses 22 and strains set in, which was further down the 23 road a few years later, it was this very gentle 24 presence who had an iron fist and a velvet glove 25 arguing, persuading about our human resources 1311 1 being the decisive and most important asset that 2 any city can boast of, did it with sensitivity 3 and such clarity and the fairness that the 4 public should display when funding efforts of 5 this kind, to emancipate and to give voice to an 6 enriching factor that was in our society and we 7 were failing to take full advantage of it by 8 doing the necessary implementation in our 9 allocation of resources. 10 Now the sides are drawn even more 11 sharply and the pressures are very heavy, but 12 it's a very distinct pleasure and honor to have 13 you and your colleagues here exhorting us, as 14 you always have, to what I believe to be a most 15 effective appeal and one which will be fine 16 resonance in the decisions that are taken in 17 Albany. 18 I wish you well, Irwin, and all 19 of you who are with you engaged in this fashion. 20 Thank you, Madam President. 21 THE PRESIDENT: Thank you, 22 Senator Marchi. Does anyone else wish to speak 23 on the resolution? 24 (There was no response.) 25 The question - 1312 1 SENATOR STAFFORD: Madam 2 President. 3 THE PRESIDENT: Oh, Senator 4 Stafford, excuse me. 5 SENATOR STAFFORD: The number of 6 years that Irwin and I have worked together I 7 won't mention because neither of us can count 8 that far, but it goes back a good number of 9 years. Everything that's been said has been 10 said so well, I can add really nothing. 11 I would point this out, that 12 in this business you get to know people who you 13 look forward to coming in your office. That is 14 not universally the case -- and somebody's mad 15 that I said it wasn't the case universally, but 16 it is with Irwin. And I can only say he always 17 had the facts, as has been pointed out, he 18 always knew exactly what he was talking about, 19 he always made sense and is and was and always 20 will be a most effective protagonist. 21 He won't -- he'll be changing 22 gears a bit, but I'm sure he'll be very busy and 23 I'm sure we will be hearing from him, and we 24 wish him the best. 25 THE PRESIDENT: Thank you, 1313 1 Senator Stafford. 2 Does anyone else wish to speak on 3 the resolution? 4 (There was no response.) 5 The question is on the 6 resolution. All in favor signify by saying aye? 7 (Response of aye.) 8 Opposed, nay. 9 (There was no response.) 10 The resolution is adopted. 11 Congratulations, Mr. Polishook. 12 (Applause) 13 We have a substitution at the 14 desk. The Secretary will read. 15 THE SECRETARY: On page 10, 16 Senator Cook moves to discharge from the 17 Committee on Corporations, Authorities and 18 Commissions, Assembly Bill Number 1476 and 19 substitute it for the identical Third Reading 20 Calendar 224. 21 THE PRESIDENT: Substitution 22 ordered. 23 Senator Bruno. 24 SENATOR BRUNO: Madam President, 25 can we at this time take up the non 1314 1 controversial calendar? 2 THE PRESIDENT: The Secretary 3 will read. 4 THE SECRETARY: Calendar Number 5 3, by Senator Cook, Senate Print 367, an act to 6 amend the Public Officers Law, in relation to 7 the defense and indemnification of members. 8 THE PRESIDENT: Read the last 9 section, please. 10 THE SECRETARY: Section 2. This 11 act shall take effect immediately. 12 THE PRESIDENT: Call the roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes 57. 15 THE PRESIDENT: The bill is 16 passed. 17 THE SECRETARY: Calendar Number 18 194, by Senator Spano, Senate Print 1793, an act 19 to amend the Labor Law, in relation to 20 permitting voluntary withholding of federal 21 income taxes. 22 THE PRESIDENT: Read the last 23 section, please. 24 THE SECRETARY: Section 2. This 25 act shall take effect immediately. 1315 1 THE PRESIDENT: Call the roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes 57. 4 THE PRESIDENT: The bill is 5 passed. 6 THE SECRETARY: Calendar Number 7 204, by Senator Rath, Senate Print 2015, an act 8 to amend the General Municipal Law, in relation 9 to allowing for the use of fire training 10 centers. 11 THE PRESIDENT: Read the last 12 section, please. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 THE PRESIDENT: Call the roll. 16 (The Secretary called the roll.) 17 THE SECRETARY: Ayes 57. 18 THE PRESIDENT: The bill is 19 passed. 20 THE SECRETARY: Calendar Number 21 205, by Senator Skelos, Senate Print 334 - 22 THE PRESIDENT: Lay it aside, 23 please. 24 THE SECRETARY: Calendar Number 25 216, Senate Print 1314, by Senator Velella, an 1316 1 act to amend the Penal Law and the Criminal 2 Procedure Law, in relation to forgery. 3 THE PRESIDENT: Read the last 4 section, please. 5 THE SECRETARY: Section 5. This 6 act shall take effect on the first day of 7 November. 8 THE PRESIDENT: Call the roll. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes 57. 11 THE PRESIDENT: The bill is 12 passed. 13 THE SECRETARY: Calendar Number 14 241, by Senator Levy, Senate Print 37, an act in 15 relation to requiring the Department of Motor 16 Vehicles to compile information. 17 THE PRESIDENT: Read the last 18 section, please. 19 THE SECRETARY: Section 3. This 20 act shall take effect on the 90th day. 21 THE PRESIDENT: Call the roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Ayes 57. 24 THE PRESIDENT: The bill is 25 passed. 1317 1 THE SECRETARY: Calendar Number 2 249, by Senator Farley, Senate Print 1684, an 3 act to amend the Executive Law, in relation to 4 designation of August 7th as Family Day, a day 5 of commemoration. 6 THE PRESIDENT: Read the last 7 section, please. 8 THE SECRETARY: Section 2. This 9 act shall take effect immediately. 10 THE PRESIDENT: Call the roll. 11 (The Secretary called the roll.) 12 THE SECRETARY: Ayes 57. 13 THE PRESIDENT: The bill is 14 passed. 15 THE SECRETARY: Calendar Number 16 251, by Senator Maltese, Senate Print 1800, an 17 act to amend the Penal Law, in relation to the 18 crime of partial birth abortion. 19 SENATOR PATERSON: Lay it aside. 20 THE PRESIDENT: Lay it aside. 21 Senator Bruno, that completes the 22 noncontroversial reading of the calendar. 23 Senator Bruno. 24 SENATOR BRUNO: Madam President, 25 can we now go to the controversial calendar, and 1318 1 I recommend that we lay aside bill number - 2 Calendar Number 205, at the request of the 3 sponsor, for the day. 4 THE PRESIDENT: The Secretary 5 will read. 6 THE SECRETARY: Calendar Number 7 251, by Senator Maltese, Senate Print 1800, an 8 act to amend the Penal Law, in relation to the 9 crime of partial birth abortion. 10 SENATOR PATERSON: Explanation. 11 THE PRESIDENT: Senator Maltese. 12 SENATOR MALTESE: Madam President 13 -- Madam President, I yield to the Senate 14 Majority Leader, Senator Joseph Bruno. 15 THE PRESIDENT: Thank you. 16 Senator Bruno. 17 SENATOR BRUNO: Thank you, 18 Senator Maltese. 19 Madam President, we have debated 20 this issue before in this chamber and we debated 21 it at a time when those of us that supported the 22 elimination of this procedure known as partial 23 birth abortion was before the public. Since that 24 time, much more information has been made public 25 about this procedure, and I am not going to go 1319 1 on at great length because much has been said 2 and will be said; much has been written about 3 this procedure called partial birth abortion. 4 The Reverend Paul Smith delivered 5 the opening prayer for this session today and he 6 said a number of times do what's right. Do 7 what's right. 8 We are elected, all of us, to do 9 what's right. I commend Senator Maltese for 10 bringing this issue before us; I will support 11 this bill, not because it's pro-life, not 12 because it would be not pro-choice, but because 13 it's right. It is the right thing to do. 14 President Clinton has indicated 15 that he would sign a bill, under the right 16 circumstances, to eliminate this procedure, but 17 the greatest pro-choice, pro-abortion advocate 18 representing a coalition of over 200 organiza 19 tions has admitted that he lied through his 20 teeth, quote, end quote, about the numbers of 21 babies that are aborted in this way. 22 None of us like to talk about the 23 procedure, but all we have to do is pick up any 24 newspaper, any article, and we can read about 25 it, can see it on TV, we can hear about it on 1320 1 the radio. When he confessed that he lied 2 through his teeth that there are thousands and 3 thousands and thousands of babies that are 4 aborted in this way, causes us all to pause and 5 think: When we vote, are we doing what is 6 right? 7 One of the authorities said he 8 had moral compunctions about the operation and 9 considered the fetus to be a child at 20 weeks 10 -- 20 weeks. This procedure is done at 20 11 weeks, 24 weeks, 25 weeks. There's no 12 prohibition at all. It's been done to terminate 13 pregnancies during all 40 weeks of pregnancy for 14 a long litany of reasons, he goes on to say, 15 including cleft lip, maternal depression, 16 pediatric indications, which, on explanation, 17 was that the mother was too young, the 18 mother-to-be, and they acknowledged that most of 19 the partial birth abortions were elective, not 20 necessary to save the life of the mother, not 21 even for good health reasons, to protect the 22 woman. Elective. 23 The procedure, we all know, that 24 is used mostly is that this fetus, this baby, by 25 definition, is allowed to be partially born, and 1321 1 seconds before this fetus would become a baby, 2 the brain is vacuumed out of the skull and the 3 body is then crushed and extracted; that is the 4 most common procedure. It's been described as 5 barbaric and that is, in my mind, being kind. 6 By definition, a fetus is a baby. 7 Now, anyone can object, anyone can debate, 8 anyone can reason, but anyone that makes this a 9 pro-choice issue is wrong and they're not doing 10 what is right. They're wrong. For anyone that 11 condones their wrong choice, they're not serving 12 the best interests of the public. 13 All of the polls, all of the 14 surveys cut across the lines, talk about three 15 out of four people think this procedure is 16 barbaric and wrong and should be stopped. 17 So we're appealing here on the 18 floor that we support Senator Maltese, stop this 19 procedure which, in any civilized society, 20 should never have been allowed to exist in the 21 first place, so let's stop it now. Let's send 22 the right message that life is sacred and let's 23 deliver this to the Assembly, not in any 24 partisan way, but with bipartisan support so 25 that we, here in this chamber, can all be proud 1322 1 of the part that we played in stopping this 2 procedure. 3 Thank you, Madam President. 4 THE PRESIDENT: Senator Connor. 5 SENATOR CONNOR: Thank you, 6 Madam President. 7 Madam President, I have an 8 amendment at the desk and I ask that it be 9 called up, waive its reading and I will explain. 10 THE PRESIDENT: Secretary will 11 read -- oh, you waive the reading? 12 SENATOR CONNOR: Waive the 13 reading, and I'll explain. 14 This amendment would add an 15 exception to this bill when, in the medical 16 judgment of the attending physician, the 17 abortion is necessary to preserve the life of 18 the woman or avert serious adverse health 19 consequences to the woman. 20 I offered this amendment last 21 year, and I know some would critique it because 22 they would say that "serious adverse health 23 consequences" isn't a medical term of art, but I 24 would point out that the language in the main 25 bill doesn't employ anything that any physician 1323 1 has been able to tell me is a medical term of 2 art. 3 To the larger issue, Madam 4 President, I sent Senator Bruno a letter this 5 morning asking that he put off this vote for a 6 month so that we can have the appropriate 7 committee hold hearings. This bill arrived on 8 this floor due to a Codes Committee meeting 9 called off the floor last Wednesday, despite 10 requirements in Senate rules about 24-hour 11 notice, and so on, but I'm not complaining about 12 procedure. 13 Last year I said on this floor, 14 after an intense several days of lobbying and 15 discussions with proponents and opponents, that 16 I learned one truth and that is that I was not 17 comfortable believing advocates -- believing 100 18 percent what advocates on either side of the 19 issue had to say about it and that I would like 20 more information. 21 Now, I know somebody undoubtedly 22 would say, "Well, you've had a year now to get 23 more information," but I, too, have been 24 disturbed about press accounts that people lied, 25 people admitted they lied, and so on; and I've 1324 1 read the same newspaper stories and columns, I'm 2 sure, as Senator Bruno has. I simply have a 3 difference, Madam President. To me, newspaper 4 stories, memoranda from so-called pro-choice or 5 pro-life people, columnists' opinions are not 6 evidence, they are not evidence. 7 What's missing here or what - 8 the real victim here seems to be the truth and 9 we do have a vehicle at getting at the truth and 10 I would urge Senator Bruno to recommit this bill 11 with instructions to the Codes Committee to 12 conduct hearings within the next month because I 13 want to know what the truth is. I want to hear 14 from expert medical testimony, I want to hear 15 from advocates on both sides of the issue and I 16 want to make a judgment about who's telling 17 whom, and the reason I want to do this is 18 because what's proposed here is apparently a 19 change in the law. I assume it's a change in 20 the law or we wouldn't have a bill. 21 My understanding of the law in 22 the state of New York is that third trimester 23 abortions are illegal. Last year, it was 24 presented as a third trimester issue; we now see 25 newspaper reports saying perhaps it's not. It's 1325 1 very disturbing to me. 2 Madam President, on a 3 philosophical level, on a philosophical level, 4 Senator Bruno said, Gee, last year we were told 5 there were hundreds, now apparently there are 6 thousands. That really doesn't matter to me on 7 a philosophical level because if you believe 8 that a human life is involved, it really doesn't 9 -- ought not matter whether it's three or three 10 times a thousand, but as a legal principle, if 11 you're going to change the law, we ought to 12 ascertain once and for all who is affected by 13 the law, how many people are involved and what 14 exactly is the effect, and I think we can only 15 get this from a hearing. We can't get it out of 16 the newspapers; we can't get it out of the 17 memoranda that are circulated, and we ought to 18 do that and let the chips fall where they may. 19 That's the way we ought to legislate, and 20 unfortunately we're not doing it now because we 21 are rushing this through. And I'm as disturbed 22 about some accounts of this procedure, albeit, 23 again, if one certainly believes that life is at 24 stake, the method of ending that life ought not 25 really matter as a moral or philosophical 1326 1 viewpoint, but perhaps as a public policy or a 2 legal statement, it does matter and we ought to 3 know the facts. 4 Now, it seems to me in order to 5 be consistent with legal principles that have 6 been set down by the courts that we ought to 7 adopt this amendment and have an exception where 8 it's necessary to avert serious adverse health 9 consequences. If someone has a better word of 10 art for that or better description of that - 11 perhaps hearings could generate a better 12 description of what serious adverse health 13 consequences, or any way you want to describe 14 it, would be. I welcome that. And perhaps 15 maybe it shouldn't just be attending physician, 16 there are some areas where two physicians are 17 involved or a second opinion. I'm open to 18 discussions on that, but I do think we do have 19 to have some acknowledgment that there are 20 circumstances where the serious adverse health 21 consequences to a woman might justify some 22 procedure, and that's why I offer this 23 amendment. 24 Again, this is a very complicated 25 area. Obviously many, many people will vote on 1327 1 both sides of this because they hold very, very 2 -- positions that are really inflexible, 3 somewhat absolutist based on their moral or 4 philosophical views; I certainly appreciate 5 that, but there are others of us who approach 6 these issues, not from our own personal 7 viewpoint of philosophy or moral theology or 8 whatever, but rather as a public policy issue 9 that has to reflect the kind of consensus the 10 citizens of the state of New York wish to have 11 in law, and for those who think that way, 12 whether to vote yes or no on this could very, 13 very much hinge on what kind of evidence is 14 adduced at a hearing, an orderly hearing, and, 15 frankly, you know, I'd love to see people who 16 say they lied come and testify and, if they 17 don't, I know -- I'm a lawyer -- I know what 18 kind of inferences to derive from their failure 19 to do that. But we haven't gone through that 20 process. 21 Be that as it may, Madam 22 President, I would urge we adopt this amendment 23 before proceeding to the main bill because I 24 think this is what really the court decisions 25 require that we do, give due consideration to 1328 1 serious adverse health consequences for women. 2 THE PRESIDENT: Senator 3 Dollinger, do you wish to speak on the 4 amendment? 5 SENATOR DOLLINGER: On the 6 amendment, very briefly, Madam President. 7 Our Majority Leader, our 8 President, has told us to do what is right and I 9 think that in taking an oath in this office, 10 when I was sworn to support and defend the 11 Constitution of the United States, I think to do 12 what you suggest, Mr. President, would be wrong, 13 and I'll tell you why: Because the amendment 14 that's before us contains the language, the 15 operative language in Roe vs. Wade that protects 16 the right of a woman, in consultation with her 17 physician, to terminate a pregnancy in any 18 manner they deem appropriate, not only for the 19 life of the mother, but for her health as well. 20 It seems to me that we can talk 21 about moral absolutism, and we can talk about it 22 in a debate about the ethics of this issue, but 23 I stand here today and I can read you the 24 passage right out of Roe against Wade, it's as 25 clear as you could want it to be, and it says 1329 1 that before we can do this, under the 2 Constitution of the United States which we are 3 sworn to uphold, regardless of our morality, 4 because that's the law that binds us together as 5 a nation, we cannot interfere with the choice of 6 a woman and her physician if -- if, as a 7 consequence, we would interfere with her life or 8 cause her serious adverse health consequences. 9 It's that simple. 10 Senator Bruno and all of those 11 who would vote on this issue, whatever you think 12 about right and wrong in your own mind, whatever 13 you want to debate about the morality of this 14 issue, there's only one vote that's right under 15 the Constitution that you're sworn to uphold and 16 that's a vote in favor of this amendment so that 17 what we do comports with the Constitution of the 18 United States, the supreme law in our land. 19 THE PRESIDENT: Senator Bruno, do 20 you wish to speak on the amendment? 21 SENATOR BRUNO: Madam President, 22 Senator Maltese, the sponsor of this 23 legislation, was considerate enough to defer to 24 me as I opened with my remarks. I would like 25 now to recognize in my place, Senator Maltese so 1330 1 that he might continue his explanation of this 2 legislation that pertains to this amendment that 3 is on the floor now. 4 Thank you, Madam President. 5 THE PRESIDENT: Senator Maltese, 6 do you wish to speak on the amendment? 7 SENATOR MALTESE: I would like to 8 speak on the amendment as it pertains to the 9 original bill, Madam President. 10 THE PRESIDENT: Go ahead. 11 SENATOR MALTESE: Thank you, 12 Senator Bruno. 13 It's really surprising to sit in 14 this chamber and hear my distinguished 15 colleague, Senator Connor, speak about the need 16 for any further investigations or further 17 hearings. I have here, Madam President, a file 18 folder that is about one half of the file 19 folders that we have which contain, in the main, 20 Congressional and United States Senate 21 testimony, extensive hearings that were held on 22 a national level when the bill was considered 23 before the United States Congress and the United 24 States Senate. 25 Offhand, I can't think of a 1331 1 single piece of legislation, since Roe vs. Wade, 2 in the last decade that has received this amount 3 of exhaustive research and publicity. That 4 isn't to say that partisans on either side were 5 always truthful or perhaps swayed by emotion, 6 but this is not a debate about abortion, it is 7 not a debate about right to life, it is a debate 8 about a particularly loathsome procedure that 9 should not be part of civilized society. 10 Madam President, I'd like to read 11 the terminology of the main -- the bill here, 12 and this is very simple, very spartan, very 13 straightforward. No ambiguity: "The Penal law 14 is hereby amended by adding a new section, 15 partial birth abortion. A person is guilty of 16 partial birth abortion when he or she knowingly 17 performs a partial birth abortion and thereby 18 kills a human fetus. As used in this section, 19 the term 'partial birth abortion' means 20 partially vaginally delivering a living fetus 21 before killing the fetus and completing the 22 delivery. A female, upon whom a partial birth 23 abortion is performed, may not be prosecuted 24 under this section for a conspiracy to violate 25 this section or for an offense under this 1332 1 section. The provisions of this section shall 2 not apply to a partial birth abortion performed 3 by a duly licensed physician that is necessary 4 to save the life of a mother whose life is 5 endangered by a physical disorder, illness or 6 injury where no other medical procedure would 7 suffice for that purpose." 8 It is simple and straight 9 forward and certainly the subject of much 10 controversy. Democrats and Republicans of the 11 United States Congress, the United States Senate 12 and this Legislature, have taken positions, 13 despite being Pro-Choice, and have taken 14 positions in favor of this legislation. Senator 15 Moynihan, Daniel Patrick Moynihan, who has 16 always been, as far as I know, Pro-Choice and 17 labeled himself Pro-Choice, in announcing when 18 he would vote to override President Clinton's 19 veto said, "It's as close to infanticide as 20 anything I have come upon." 21 Now, I think that despite the 22 amount of debate that we have had on this bill, 23 despite the lengthy prior debate last year, I am 24 told one of the longest in Senate history, I'd 25 like to refer to a nurse who was present during 1333 1 the actual procedure performed by the apostle, 2 if I may use that term in this context, Dr. 3 Martin Haskell, who has been labeled the fore 4 most -- and self-termed, too -- the foremost 5 practitioner of this terrible practice, and 6 Nurse Shaeffer participated with Dr. Haskell at 7 this procedure and this was her testimony; and 8 she was here with us, those of you that remember 9 last year, she was present and appeared with us. 10 "I stood at the doctor's side 11 and watched him perform a partial birth abortion 12 on a woman who was six months pregnant. The 13 baby's heartbeat was clearly visible on the 14 ultrasound screen. The doctor delivered the 15 baby's body and arms, everything but his little 16 head. The baby's body was moving. His little 17 fingers were clasping together. He was kicking 18 his feet. The doctor took a pair of scissors 19 and inserted them into the back of the baby's 20 head and the baby's arms jerked out in a flinch, 21 a startled reaction like a baby does when he 22 thinks he might fall. Then the doctor opened 23 the scissors up, then he stuck the high-powered 24 suction tube into the hole and sucked the baby's 25 brains out. Now the baby was completely limp. 1334 1 "I never went back to the 2 clinic, but I am still haunted by the face of 3 that little boy. It was the most perfect, 4 angelic face I have ever seen." And that was a 5 nurse that had been, until that operation, for 6 all I know still is, Pro-Choice. 7 Now, lest anyone here or any 8 listener think - 9 SENATOR DOLLINGER: Senator 10 Oppenheimer. 11 THE PRESIDENT: Senator 12 Oppenheimer. 13 SENATOR OPPENHEIMER: I wanted to 14 ask a question, if the good Senator would yield. 15 SENATOR MALTESE: I prefer not to 16 yield until I complete my statement, Madam 17 President. 18 THE PRESIDENT: Fine, but we'll 19 have a chance for everyone to speak on the 20 amendment. 21 SENATOR OPPENHEIMER: This was a 22 question on something that was said a couple 23 minutes ago that I wanted to question. 24 THE PRESIDENT: You will be 25 recognized next. 1335 1 Go ahead, Senator. 2 SENATOR MALTESE: Lest anyone 3 think the nurse's statement, Nurse Shaeffer's 4 statement, is an exaggeration or colored by her 5 own very considerable emotion, I have before me 6 a paper which recites the testimony of Dr. 7 Martin Haskell, together with Dr. James T. 8 McMahon, who has gone to his eternal reward, or 9 lack thereof, which was delivered at the 10 National Abortion Federation seminar in 11 September, the 13th and 14th, 1992 where Dr. 12 Haskell goes into considerable detail about this 13 procedure, taking great pride in his authorship 14 and recitation, and he first says in a brief 15 introduction: "The surgical method described 16 in this paper differs from classic D&E in that 17 it does not rely upon dismemberment to remove 18 the fetus. Rather, the surgeon grasps and 19 removes a nearly intact fetus through an 20 adequately dilated cervix." 21 The author has coined the term 22 dilation and extraction and D&X to distinguish 23 it from dismemberment type D&Es. This procedure 24 can be performed in a properly equipped 25 physician's office -- physician's office - 1336 1 under local anesthesia. It can be used 2 successfully in patients 20 to 26 weeks in 3 pregnancy. The author has performed over 700 of 4 these procedures with a low rate of 5 complications. 6 Patient selection -- I'll skip 7 only to the portions that are pertinent at this 8 point: The author routinely performs this 9 procedure on all patients 20 through 24 weeks 10 LMP, last menstrual period, with certain 11 exceptions: The author performs the procedure 12 on selected patients 25 through 26 weeks LMP. 13 He also recites, for those that 14 say that this procedure is -- has to be somewhat 15 precipitous to save the life of the mother, 16 dilation and extraction takes place over three 17 days. Now we're to procedure. 18 The surgical assistant places an 19 ultrasound probe on the patient's abdomen and 20 scans the fetus locating the lower extremities 21 -- I'll skip over some. When the instrument 22 appears on the sonogram screen, the surgeon is 23 able to open its claws to firmly and reliably 24 grasp a lower extremity, the leg of the baby. 25 The surgeon then applies firm traction to the 1337 1 instrument causing aversion of the fetus, if 2 necessary, and pulls the extremity into the 3 vagina. By observing the movement of the lower 4 extremity on the ultrasound screen, the surgeon 5 is assured that his instrument has not 6 inappropriately grasped a maternal structure. 7 With a lower extremity in the 8 vagina, the surgeon uses his fingers to deliver 9 the opposite lower extremity, then the torso, 10 the shoulders and the upper extremity. The 11 skull lodges at the internal cervical os; 12 usually there is not enough dilation for it to 13 pass through. 14 The fetus is oriented dorsum, or 15 spine up. At this point, the right-handed 16 surgeon slides the finger of the left hand along 17 the back of the fetus and hooks the shoulders of 18 the fetus with the index and ring finger, palm 19 down. 20 While maintaining this tension, 21 lifting the cervix and applying traction to the 22 shoulders with the fingers of the left hand, the 23 surgeon takes a pair of blunt, curved Metzenbaum 24 scissors in the right hand. He carefully 25 advances the tip, curve down, along the spine 1338 1 and under his middle finger until he feels it 2 contact the base of the skull under the tip of 3 his middle finger. 4 Reassessing proper placement of 5 the closed scissors tip and safe elevation of 6 the cervix, the surgeon then forces the scissors 7 into the base of the skull, or into the foramen 8 magnum. 9 Having safely entered the skull 10 -- I don't know where the term "safely" would 11 be -- he spreads the scissors to enlarge the 12 opening. The surgeon removes the scissors and 13 introduces a suction catheter into this hole and 14 evacuates the skull contents. 15 With the catheter still in place, 16 he applies traction to the fetus, removing it 17 completely from the patient. The surgeon 18 finally removes the placenta with forceps, 19 scrapes the uterine walls with a large Evans 20 forceps and 14 millimeter suction curette. The 21 procedure ends, and so does the life of the 22 fetus. 23 Now, the prior votes on the bill 24 in the Senate and the House indicate that this 25 had wide Democratic and bipartisan support. But 1339 1 I'd like to direct myself for a moment to the 2 material that Senator Bruno alluded to. 3 Make no mistake about it, these 4 figures, these statements that are so blithely 5 alluded to by many proponents of this procedure 6 were taken of great moment during the debate in 7 the Congress, in the state, and in this house 8 and in the Assembly, and I want to quote, as 9 Senator Bruno has indicated, this is not some 10 mere self-anointed leader of the pro-abortion 11 forces, this is Ron Fitzsimmons, executive 12 director of the National Coalition of Abortion 13 Providers. They represent approximately 220 14 independently owned abortion clinics. And his 15 statements were: The Pro-Choice movement has 16 lost a lot of credibility during this debate, 17 not just with the general public, but with other 18 Pro-Choice friends in Congress. Even the White 19 House --" even the White House -- "is now 20 questioning the accuracy of some of the 21 information given to it on this issue. I think 22 we should tell them the truth, let them vote and 23 move on." 24 Now, again, I'd like to read this 25 paragraph: Again Fitzsimmons, "When you're a 1340 1 doctor who does these abortions and the leaders 2 of your movement appear before Congress and go 3 on network news and say these procedures are 4 done in only the most tragic of circumstances, 5 how do you think it makes you feel? You know 6 they are primarily done on healthy women and 7 healthy fetuses and it makes you feel like a 8 dirty little abortionist with a dirty little 9 secret," Fitzsimmons said. "I think we should 10 tell them the truth." 11 So he lied about the frequency, 12 he lied about the medical necessity, they lied 13 about the number. Originally we were quoted 14 figures of approximately 500 a year; now they're 15 talking some 10,000 a year. Quite, quite a big 16 difference. 17 I know that we have many, many 18 supporters of this legislation and certainly 19 more eloquent; and in the case of the Cardinals 20 and Bishops are more saintly than perhaps any of 21 us in this chamber, public figures, normally 22 Pro-Choice like Mayor -- former Mayor Ed Koch, 23 who have all asked the legislators in this house 24 and the legislators on the national level to 25 reconsider, despite whatever position they may 1341 1 hold on abortion or right to life, and stop this 2 procedure. 3 I'd like to, for a moment, speak 4 about another misstatement that was made 5 frequently during the debates and that 6 misstatement was -- and it was precipitated, I 7 believe, by Dr. McNally who claimed that he 8 would give massive doses of anesthesia which 9 would not affect the mother but which would 10 deaden whatever pain the fetus would feel, and 11 I'd like to just skip and say: The babies are 12 alive and experience great pain when they are 13 subject to a partial birth abortion. 14 In Congressional testimony on 15 March 21st, 1996, the heads of the American 16 Society of Anesthesiologists and of the Society 17 for Obstetric Anesthesia and other top experts 18 testified that even that anesthesia -- even 19 general anesthesia given to the mother has 20 little effect on the baby. Jean A. Wright, 21 associate professor of pediatrics and anesthesia 22 at Emory University, testified that recent 23 research shows that by the time a baby is 24 developed enough to be a candidate for a partial 25 birth abortion, the fetus is sensitive to pain, 1342 1 perhaps even more sensitive than a full-term 2 infant. She added,"This procedure, if it was 3 done on an animal, in my institution would not 4 make it through the constitutional review 5 process. The animal would be more protected 6 than this child is." 7 Now, during the last debate, we 8 had opportunities to speak to pediatric 9 surgeons, surgeons that perform operations on 10 children in uterus, in utero, and in many cases, 11 they spoke of performing operations on poor, 12 unfortunate children who were born without full 13 brains and with brains outside the skull, and 14 they indicated-- she indicated the specific 15 physician, that they had a fair amount of 16 success, although in most of these extreme 17 cases, there was no question that the child was 18 born with some brain damage. 19 I'd like to -- in skipping over a 20 lot of the other material, I'd like to perhaps 21 just read a brief portion of an article by a 22 Dominick Lawson that appeared in the National 23 Right to Life News on April 12th, 1996, and 24 Dominick Lawson is the editor of the London 25 Daily Telegraph, and he was commenting on the 1343 1 fact that an amniocentesis test had determined 2 that two infants who were tested, they made a 3 mistake at the hospital and determined that one 4 had Down's syndrome and it was the wrong child, 5 so that child was then aborted and then they 6 followed through and aborted the other child of 7 the other parents, and he speaks of the apology 8 that was directed to both parents by the 9 hospital and then refers to the fact that he and 10 his wife, his wife gave birth to a little baby 11 girl, six pounds, five ounces, and that that 12 baby girl suffers from Down's syndrome and he 13 writes, "Modern medicine, however, regards these 14 babies as necessary, if unfortunate casualties 15 in the war against abnormality. And Down's 16 syndrome is far and away the most common form of 17 genetic abnormality. But, a Down's child is not 18 an unhealthy child. Down's is not a disease. 19 Such a child is not infectious, or no more than 20 any other child. Such a child suffers no pain 21 or distress, or no more than any other child." 22 I would not have believed that 23 such obvious points needed to be made until he 24 read the newspapers reports, and he speaks of 25 his daughter as the picture of health, strong 1344 1 and robust and he says, "It is true that 2 Dominica will have some degree of mental 3 retardation. It could be severe, it could be 4 slight, they will not know for years. But 5 mental handicap is not the same as mental 6 illness. A slow child is not a lunatic. Above 7 all, a child suffering from Down's syndrome will 8 not necessarily be unhappier than any other 9 child. Indeed, children with this condition 10 very often seem capable of greater love and 11 happiness than those with a normal chromosomal 12 makeup." 13 And he says, "Again, I would not 14 have thought that this point regarded -- would 15 necessitate repeating," but then he says,"Many 16 of the reporters and commenters say that the 17 child would be so unhappy that they would be 18 better off dead and, therefore, they may, on 19 occasion, be killed. This is not an 20 exaggeration. According to the bill in England, 21 the Human Fertilization Act, it became legal to 22 terminate a pregnancy up to the very end, up to 23 the moment that the umbilical cord is cut, if 24 there is a substantial risk that the child would 25 be seriously handicapped. There is a mighty 1345 1 paradox in all of this," and he speaks of 2 England but it applies to America. "As a 3 country and as a people, we have become 4 increasingly kind and understanding towards 5 those with physical and mental handicaps. They 6 are no longer automatically institutionalized. 7 We have granted them equal rights to education, 8 we have granted them equal rights to economic 9 security, all we deny them is the equal right to 10 life." 11 Now, Senator Bruno alluded to 12 Reverend Paul Smith's statement earlier that 13 conscience always asks the question, "Is it 14 right?" Here is a procedure that flies in the 15 face of thousands of years of history, flies in 16 the face of all humanity, would lower us lower 17 than perhaps animals, in many cases, speaking of 18 parental love, mother love. 19 This is a loathsome, abhorrent 20 procedure. This is a procedure that has been 21 described as medical men who are Pro-Choice as 22 something they would never dirty their hands 23 with. This is a procedure that has been 24 described as akin to murder and homicide and 25 infanticide. This is a procedure that 1346 1 physicians, physicians describing it have 2 indicated that the only pressure stopping that 3 child from being fully born is the pressure of 4 two fingers on the shoulders of that child 5 keeping the head in the vagina. 6 Madam President, colleagues, I 7 ask you, reexamine the arguments on this issue, 8 reexamine your own thoughts and your own 9 conscience. I presume to put myself in no one 10 else's shoes. I say to you that this is not a 11 procedure that we in this chamber, in this 12 house, in this Capitol, in this state or in this 13 country, should sanction or permit. 14 THE PRESIDENT: Senator 15 Oppenheimer, on the amendment. 16 SENATOR OPPENHEIMER: Actually, I 17 had risen not on the amendment, but to question 18 something that was being said by Senator 19 Maltese - 20 THE PRESIDENT: Would you like 21 Senator Maltese to yield? 22 SENATOR OPPENHEIMER: -- So I 23 would like Senator Maltese to yield. 24 THE PRESIDENT: Senator Maltese. 25 SENATOR OPPENHEIMER: In this 1347 1 bill, Senator Maltese, you make no differential 2 in what you term partial birth abortion. This 3 doesn't limit it to the third trimester or - 4 because in fact, there are more of this 5 procedure done in the second trimester; so, 6 without that limitation, obviously, this is 7 contrary to our law, our national law. 8 SENATOR MALTESE: Madam 9 President, as my colleague is aware, the present 10 state of the law limits abortions to the first 11 24 weeks, six months. This specific bill does 12 not allude to any time period because, as Dr. 13 Haskell and Dr. McNally have indicated, the 14 fetus must be fully formed prior to this 15 procedure being undertaken, and they do not ever 16 apparently say much about this procedure being 17 performed before the 18th or 20th week, which 18 would be approximately five months. 19 THE PRESIDENT: Senator 20 Oppenheimer. 21 SENATOR OPPENHEIMER: The fact 22 is, Senator Maltese, that the majority of these 23 procedures are done in the second trimester, 24 and, therefore, your bill, this proposed bill, 25 is simply in contravention to the law of our 1348 1 country. 2 SENATOR MALTESE: Madam 3 President, the majority of abortions -- there 4 are, I believe, 149,000 that are performed on 5 New York residents, of them 97,871 performed in 6 New York City. The indication is that 20 or 7 more weeks -- and these are figures from the 8 Health Department -- the only 2,534 are 9 performed within 20 or more weeks. So, the 10 amount of abortions that would be available for 11 this type of procedure, at least in New York, 12 would not be over that amount. 13 THE PRESIDENT: Senator 14 Oppenheimer. 15 SENATOR OPPENHEIMER: If I might, 16 the statistics we have are that only 140 of 17 these procedures are done in the third 18 trimester; therefore, the large number are done 19 prior. 20 THE PRESIDENT: On Senator 21 Connor's amendment, does anyone else wish to be 22 heard? 23 Senator Abate, on the amendment? 24 SENATOR ABATE: Yes. 25 Would Senator Maltese yield to a 1349 1 question? 2 THE PRESIDENT: Senator Maltese. 3 SENATOR ABATE: I am troubled by 4 what is the definition of what is partial birth 5 abortion. Does that include D and E procedures? 6 SENATOR MALTESE: No, it does 7 not. The D and E, as these doctors have 8 indicated, is dilation and extraction, and the- 9 well, the D&E is what the doctor, good doctor 10 alludes to as dismemberment within the womb, so 11 this would be taking the fetus out in total, the 12 whole fetus out, which is a different procedure. 13 This is the D&X, as Dr. Haskell has referred to 14 it, which differentiates it from the D&E. 15 SENATOR ABATE: Would you be 16 surprised, Senator Maltese, to learn that some 17 doctors -- and I've asked doctors if D&E could 18 come under this procedure, could come under a 19 partial birth abortion because it does not, in 20 my understanding -- D&E does not talk about 21 dismemberment, it's suction. It also can 22 involve the same procedure as a D&X. 23 THE PRESIDENT: Senator Maltese. 24 SENATOR MALTESE: Yes, Madam 25 President, I have here a definition of dilation 1350 1 and extraction, and the whole -- the key term is 2 intact. The terminology, partial birth, means 3 just that, the baby is partially born. This 4 baby would not be partially born if the 5 physician would be reaching his tools within the 6 woman's body and taking, as they do in the D&E, 7 portions of the baby's body out one at a time. 8 This would necessitate the baby being dead and 9 not -- and not being born. 10 The whole term -- the term and 11 debates in the Congress and on the federal 12 level, there was a great deal made of the fact 13 that partial birth abortion is not a phrase 14 easily found or found at all in any dictionary; 15 and yet, many physicians were perfectly content 16 with the term because it describes exactly the 17 procedure. A partial birth, the baby -- the 18 fetus is partially born and, with the exception 19 of a portion of the skull, is completely 20 extruded from the vagina. 21 THE PRESIDENT: Senator Abate. 22 SENATOR ABATE: Yes. Senator 23 Maltese, does this procedure apply to second 24 trimester, as well as third trimester. 25 SENATOR MALTESE: Yes. In 1351 1 response to Senator Oppenheimer, it does, it 2 does, but that those type of abortions probably 3 would not lend themselves very easily to this 4 procedure because the -- it is probably -- Dr. 5 Haskell described the reason for the partial 6 birth abortion. He indicated that when the baby 7 gets beyond a certain age, beyond the 20 weeks, 8 the fibers of the baby's flesh become so hard 9 that it is more difficult to take them out a 10 piece at a time and he, therefore, indicated 11 that this was a preferable procedure because you 12 were able to have the mother over three days 13 dilation, give birth to the baby, all but the 14 skull and the head. 15 SENATOR ABATE: Senator Maltese, 16 are you saying that this procedure applies 17 whether the fetus is viable or not viable 18 outside the womb? 19 SENATOR MALTESE: Yes, that's 20 part of the problem, sure. It's - 21 SENATOR ABATE: And you're 22 suggesting that this procedure is more gruesome 23 than dismembering a fetus, more gruesome than a 24 C-section - 25 SENATOR MALTESE: Yes. 1352 1 SENATOR ABATE: -- that tears 2 the fetus out of the mother's womb? 3 SENATOR MALTESE: Madam 4 President - 5 SENATOR ABATE: More gruesome 6 than suctioning the fetus out, is that your 7 contention? 8 SENATOR MALTESE: Madam 9 President, I'm sure this discussion is as 10 disagreeable to my colleague, Senator Abate, as 11 it is to me; and yet, at the same time, we are 12 legislators, we legislate on medical practices 13 or pseudo medical practices, and we have to 14 acquaint ourselves with as much as possible. I 15 don't pretend to be expert on obstetrics or 16 birth or any of these procedures. 17 Like the good Senator and others, 18 I have attempted to, over the course of the last 19 two years, acquaint myself with many of these 20 procedures by speaking to many doctors and 21 physicians and people who are experts as to 22 which is more gruesome. I don't want to make a 23 value judgment. What could be gruesome to 24 Senator Abate who I know has worked in law 25 enforcement, it might not be to me. I worked in 1353 1 homicide for three and a half years. What could 2 be gruesome to another Senator here might not be 3 to me. 4 The point of this is that this 5 is a birth, this is all but for a few seconds or 6 for a few centimeters of living, breathing 7 tissue is a birth and that birth is cut short, 8 that life is cut short by a scissors put in the 9 back of the skull and the brains are then sucked 10 out of that living, breathing baby. And that is 11 a procedure that we in this state should not 12 condone. 13 THE PRESIDENT: Senator Abate. 14 SENATOR ABATE: Yes, I would like 15 to speak on the amendment and why I support the 16 amendment. 17 I stand before this chamber as a 18 mother and I can sincerely say the best thing I 19 have ever done in my life, the best thing I ever 20 accomplished is having a child, and there's been 21 no greater joy than has been in my life than 22 being a mother. 23 And I wish I could submit to what 24 Senator Bruno said, that this is a matter of 25 right and wrong and it's a simple issue. It is, 1354 1 I believe, not so simple. And I'd like to talk 2 why this amendment is so important. We need to 3 clarify what this bill does and does not do. 4 Last year, I focused wrongly on 5 the bill. I thought the bill was about late 6 term abortion. It is not just about late-term 7 abortions, it's about a vaguely-described 8 procedure, and I have spoken to doctors. What 9 is this partial birth abortion? There's no 10 medical term, there's nothing that I could find 11 in any medical dictionary. Does it apply to 12 D&Es, to D&Xs? We know that it doesn't apply to 13 procedures called dismembering a fetus, it 14 doesn't apply to a hysterotomy, but I'm not sure 15 what this vague terminology means and, if we 16 don't know what it means in terms of not our lay 17 terms but in terms of medical terms, we don't 18 know how far-reaching this bill is. 19 What we do know, and I did not 20 understand last year but I understand this year 21 and I'm more adamantly opposed this year than 22 last year, that this would cover all -- poten 23 tially could cover all abortions after the first 24 trimester. And I submit that all abortions are 25 gruesome, and now we're singling out one 1355 1 procedure because we think it's more gruesome 2 than another. Why not next week attach another 3 procedure. 4 It is a slippery slope. What 5 we're now saying -- not talking about late-term 6 abortions, we're talking about abortions after 7 the fourth week of pregnancy; and the impact, as 8 everyone has said the greatest impact this ban 9 will be on abortions that occur before 24 weeks 10 when a woman has a constitutional right to an 11 abortion, and that it will also apply to third 12 trimester -- and this bill is more restrictive 13 than the laws on the books of 40 other states. 14 Those other states are consistent with Roe v. 15 Wade. They say that in a third trimester there 16 should be two exceptions, to preserve the life 17 of the mother, or to preserve the health of the 18 mother. 19 This bill carves out one 20 exception. Why is it in the wisdom of 40 other 21 states who are consistent with Roe v. Wade that 22 recognize and understand the exception? This 23 amendment would be consistent with Roe v. Wade 24 as applies to third trimester abortion and would 25 not carve out the exception to preserve the 1356 1 health of the mother. 2 Now last year we focused on 3 numbers, and wrongfully so, because we talked 4 about numbers as it applies to late-term 5 abortions. The facts are the same last year and 6 they are the same this year, and the facts are 7 99 percent of all abortions occur before 20 8 weeks; 6/100th of one percent occur after 24 9 weeks. 10 I have a report from the 11 Department of Health. Let's not believe me, I'm 12 not a doctor. Let's not believe Mr. 13 Fitzsimmons. Vital Statistics of New York 14 State, 1994 says that after 25 weeks, there are 15 140 abortions that occurred, 140 and, if you 16 look at Fitzsimmons' statement, that statement 17 isn't contrary to the facts we knew last year as 18 compared to this year. Yes, there are, in the 19 second trimester, potentially 3- to 4,000 of 20 these kinds of abortions. There are only 21 hundreds in the third trimester. It's what we 22 stated last year, it is the truth. But what we 23 fail to remember -- and I have the testimony and 24 the transcript of "Nightline", when he was asked 25 about this procedure, this is left out. We're 1357 1 telling half the story. When he's asked about 2 the procedure, he says, "I have no reservations, 3 zero reservations, about this procedure, and 4 when it's done we have no apologies and no 5 reservations." And he goes on to say that,"This 6 is a procedure that is a good procedure that 7 should be kept away out of the Congressional 8 rubric. I'm not backing away from everything." 9 What we are -- if we talk about 10 the numbers today, we're missing the point 11 because that is obscuring the overriding 12 principle that such a ban as is suggested in 13 this bill intrudes unacceptably into a women's 14 private medical decision. So when we say it's 15 not the business of Congress, I also suggest 16 it's not the business of this Legislature, that 17 the woman should make this decision, with the 18 advice of her spiritual advisors, with her 19 family and her doctor; and in fact what we're 20 doing, if we pass this law, we will be limiting 21 her access to abortions that are now legal in 22 this country and in this state. 23 If the passage of this bill 24 occurs, it will mark the first time since 1970 25 that abortions performed before 24 weeks of 1358 1 pregnancy will be declared illegal. 2 This bill has far-reaching 3 outcomes. It's not about a procedure, it's not 4 about late-term abortions, it's about the 5 woman's right to choose. 6 This bill is unconstitutional. 7 Should we say we don't care? I think we should 8 care about how we use taxpayer dollars, knowing 9 that this bill will be declared unconstitution 10 al. And why is it unconstitutional? It's 11 impermissibly vague. It fails to define 12 adequately the boundaries of conduct for which a 13 physician may be held accountable. 14 If it's not defined appropriate 15 ly, a physician can be imprisoned or fined but, 16 moreover, can be imprisoned for up to four 17 years. Don't we want a law that's not vague so 18 that persons of common intelligence don't have 19 to guess at its meaning and its application? It 20 does not provide adequate notice of what is 21 prohibited behavior and it, moreover, will 22 invite arbitrary and discriminatory enforcement. 23 The bill is unconstitutional also 24 because it endangers a woman's health and life. 25 It imposes an unnecessary burden on a woman to 1359 1 decide between her health, her ability to have 2 children in the future and risky -- more risky 3 procedures. 4 The Supreme Court has emphasized 5 that physicians must have discretion to 6 determine the best course of conduct. What are 7 we saying today, that we know better than 8 doctors? We have to be mindful of our role. We 9 are lawmakers and not doctors. And we should 10 not impose or restrict the discretion of a 11 doctor in the middle of an abortion procedure 12 when it could mean that that woman will fail to 13 have another child, that could risk her health. 14 We are saying to that doctor, "You have limited 15 choices. You can't look at your patient, 16 protect her, because the lawmakers have said you 17 do not have discretion, even if it means you 18 have to do a D&E or you have to do a C-section 19 which could mean uterine or cervical 20 lacerations, injecting a sharp instrument." 21 Even if it means more harm to the 22 woman and her future ability for fertility, 23 we're saying to the doctors, "Ignore your best 24 medical advice and follow what we think is best 25 for the woman." 1360 1 The bill unconstitutionally 2 restricts when a woman may obtain an abortion. 3 The court has been very clear. Again, it's 4 unconstitutional. So long as a fetus is not 5 viable, a woman has a right to end her pregnancy 6 in accordance with her own conception of 7 spiritual imperatives and her place in society. 8 We all know it's a difficult 9 decision; it's an agonizing decision for a 10 woman, but in the case where a fetus is not 11 viable, that decision is hers and hers alone. 12 If a fetus is viable, the government has said 13 and the Supreme Court has said you can ban 14 abortions, you can restrict it, but only with 15 two exceptions: This bill ignores Roe v. Wade, 16 eliminates the exception of protecting the 17 health of the mother. 18 What are we saying to women? 19 Undergo more dangerous procedures or wait until 20 you're dying and then maybe you could have the 21 procedure of choice, the choice of your doctor; 22 otherwise, you have to follow the choice 23 mandated by the Legislature. 24 This bill is unconstitutional for 25 another reason: Even the life exception is too 1361 1 narrow. It talks about physical disorder, 2 illness or injury. It is so vague as to be 3 meaningless. It can exclude other life 4 threatening situations; and even with this life 5 exception, it won't apply if another procedure, 6 even one more risky, could have been used. 7 So let's not confuse ourselves 8 today. The outcome of this bill will clearly 9 limit access to abortion services. By its very 10 intent, doctors will not want to be second 11 guessed. They won't understand the nature of 12 this bill, they won't understand the language, 13 they won't want to take risks and they don't 14 want to risk being in prison for four years. 15 Even if they have no criminal intent, they will 16 say to women, "Leave this state, get an 17 abortion, go underground," because doctors will 18 not perform abortions not only in the third 19 trimester, but now in the second trimester. 20 We argue over and over in this 21 chamber that government should not intrude in 22 the lives of individual citizens and we argue 23 over and over that we need less government and 24 not more government. Why are we so anxious 25 today to substitute our untutored, raw opinions 1362 1 for sound medical decisions? Why are we willing 2 to ignore sound public health policy and ignore 3 the tragedies of so many women who want to have 4 their children but are forced with a decision to 5 bring birth to a deformed fetus or never have 6 another child in the future? Why are we, as a 7 Legislature, compounding this pain and 8 suffering? 9 If we think by passing this 10 legislation women will walk away, we're wrong. 11 They will not walk away, they will find a way to 12 have an abortion, they will go out of town, go 13 out of state; and we're jeopardizing their 14 health even further. We're saying to women we 15 know better than their doctors. We're saying to 16 women that they don't need to consult with their 17 families and their priests and their rabbis to 18 make this very personal and important decision. 19 I know that this is an emotional 20 issue, I look around, that there are people here 21 who feel very strongly about this issue. This 22 is clearly an issue of conscience but this is an 23 issue that we need to understand the facts and 24 the facts in this bill go much further than I 25 believe even Senator Maltese would like. This 1363 1 is a bill that doesn't just ban the procedure 2 that's crafted narrowly so we understand it, it 3 potentially is a ban on all second and third 4 trimester abortions. 5 I believe by voting against this 6 ban we are saying that we have respect for a 7 pluralistic society. We're saying that I have 8 respect for that woman who is Catholic. I have 9 respect for that woman who is Jewish, I have 10 respect for that woman that's Protestant and 11 Muslim because she should have a right to 12 exercise in this free society what her religion 13 and what her conscience mandates. 14 If you vote against this bill, 15 you're saying that you have respect for the 16 constitution of the United States and you do not 17 want to waste taxpayer dollars on a bill that is 18 clearly unconstitutional. And if you vote 19 against that ban today, I believe you're showing 20 respect for women, you're showing respect for 21 their lives, their health and their right to 22 choose. 23 Let me just end. Frank Rich of 24 the New York Times summed it up, I believe, 25 quite eloquently. He said, "In the decade since 1364 1 Roe v. Wade, American women have never been more 2 in danger of losing their constitutional right 3 to abortion than they are this week. Pro-Life 4 advocates are right to so strenuously champion 5 the ban because it again begins the end run 6 process of gutting Roe v. Wade a few procedures 7 at a time." 8 And I submit, this bill is not 9 about a procedure, because most abortions could 10 be defined as partial birth abortions. And he 11 goes on to say, "This ban does not stamp out 12 infanticide, which is already illegal." Again, 13 we already have on the books third trimesters 14 are illegal except for very defined excess, but 15 what it does is cripples a woman's right to 16 choose and a doctor's duty to recommend the 17 safest of the uniformally awful options for 18 carrying out their anguished choice. 19 I'm not prepared today to water 20 down a woman's right to choose, particularly on 21 a bill that does not define in real terms or 22 give guidance to doctors what they can and 23 cannot do. All it will do is set a chilling 24 effect on any woman exercising her legal right 25 to have an abortion. 1365 1 I am voting my conscience today. 2 I am showing respect to this pluralistic 3 society, people who are Catholics and Jews and 4 Protestants and Muslims or whatever religion 5 they have so they can lead their lives and 6 exercise their religions and pursue their lives 7 and conscience. I support the Constitution, I 8 support women, and for these reasons I support 9 the amendment and I must oppose the bill. 10 THE PRESIDENT: Thank you, 11 Senator Abate. 12 Senator Leichter, do you wish to 13 speak on the amendment? 14 SENATOR LEICHTER: I'll speak on 15 the bill, Madam President. 16 THE PRESIDENT: Thank you. The 17 question - 18 SENATOR DOLLINGER: May I be 19 heard on the amendment, please? 20 THE PRESIDENT: Yes, Senator 21 Dollinger. 22 SENATOR DOLLINGER: Would the 23 sponsor yield to a couple questions, please? 24 THE PRESIDENT: Senator Maltese, 25 on the amendment. 1366 1 SENATOR MALTESE: Madam 2 President, if it's on the amendment -- I'll 3 yield to a question, at any rate. 4 THE PRESIDENT: Yes, you spoke on 5 the amendment, Senator Maltese. 6 Senator Dollinger. 7 SENATOR DOLLINGER: I just have 8 -- Senator you pointed to the file you had with 9 all that material in it. Isn't it a fact, 10 Senator, that you were a prosecutor in your life 11 prior to coming to this chamber? 12 THE PRESIDENT: Senator Maltese. 13 SENATOR MALTESE: Time before, 14 yes. 15 SENATOR DOLLINGER: And isn't it 16 a fact in normal trial procedure, an advocate, 17 in putting evidence before a jury, would put 18 together live testimony from witnesses with 19 firsthand information about a fact in order to 20 prove it to that jury? 21 SENATOR MALTESE: In most 22 procedures, yes, Madam President. 23 SENATOR DOLLINGER: And isn't it 24 also true, Senator, that you wouldn't use 25 hearsay to try to convince a jury of a series of 1367 1 facts if it meant convicting someone of a crime, 2 isn't that correct? You would want to use live 3 testimony so the jury could draw conclusions 4 from live testimony, isn't that - 5 SENATOR MALTESE: Madam 6 President, of course as has been repeatedly 7 stated, this is a legislative body and not a 8 jury but, in addition, there were many cases, as 9 a matter of fact, exhaustive testimony under 10 oath before the Congressional hearings. 11 SENATOR DOLLINGER: Again, 12 through you, Madam President, you wouldn't read 13 somebody else's testimony to a jury, you would 14 have the witness testify themselves live for the 15 jury, wouldn't you? 16 SENATOR MALTESE: Madam 17 President. 18 THE PRESIDENT: Senator Maltese. 19 SENATOR MALTESE: Previously - 20 previously sworn to testimony would be certainly 21 advantageous toward forming a point of view and 22 certainly helpful to us as legislators. We 23 cannot bring witnesses here into the chamber, 24 prohibited by Senate rules; therefore, we have 25 to settle for the next best thing, which is our 1368 1 reading and analyzing previous testimony. 2 Certainly -- my good colleague, Senator Abate, 3 quotes columnists in the New York Times. 4 Certainly I don't know their degree of 5 prevarication or truthfulness, but I don't know 6 that that's equivalent to testimony given under 7 oath before a Congressional committee. 8 THE PRESIDENT: Senator 9 Dollinger. 10 SENATOR DOLLINGER: Again, 11 through you, Madam President, wouldn't you 12 acknowledge, Senator, it would be better to 13 bring in the witnesses that know firsthand about 14 this issue -- obstetric and gynecological 15 experts, women who've undergone the procedure, 16 so that we could wipe out all the rhetoric and 17 just deal with the facts? Wouldn't that be a 18 better way to do this? 19 SENATOR MALTESE: Madam 20 President - 21 SENATOR DOLLINGER: We can do 22 that through our hearing process. 23 SENATOR MALTESE: Madam 24 President, I wish to point out to my colleague, 25 Senator Dollinger, that during the last time 1369 1 this bill was debated and prior thereto, we were 2 deluged with experts and physicians and 3 surgeons, and experts of one kind or another, 4 depending on their point of view, were brought 5 forth at press conferences and meetings so we 6 had many of that firsthand testimony. Much of 7 that -- Nurse Brenda Shaeffer was in the 8 audience, previously testified or stated during 9 various conferences and meetings her point of 10 view. There were pediatricians, surgeons that 11 testified that made statements as to the best 12 way to treat unborn fetuses. We had -- we had 13 an untold amount of testimony that we could rely 14 on and allude to in this much debated, much 15 discussed piece of legislation. 16 SENATOR DOLLINGER: Again, 17 through you, Madam President. 18 THE PRESIDENT: Senator 19 Dollinger. 20 SENATOR DOLLINGER: Just two 21 other questions: Don't you think, Senator, it 22 would be better that no one would be convicted 23 of a crime based upon hearsay? Why should we 24 make something a crime based on hearsay? 25 THE PRESIDENT: Senator Maltese. 1370 1 SENATOR MALTESE: Madam 2 President, Senator Dollinger, who is an attorney 3 and a trial attorney, is obviously engaging in 4 rhetorical questions. I think that we in this 5 legislative body must use our best judgment. As 6 Reverend Smith had indicated, we have to do 7 what's right and do what's right on as much 8 available testimony and information as we could 9 possibly obtain. 10 Senator Dollinger had the same 11 opportunities that I and all the members of this 12 house had to secure voluminous information in 13 connection with this piece of legislation. 14 Those envelopes that I pointed to were just a 15 mere fraction of the information available. 16 Certainly he could have had 17 information that would have been sworn to 18 information that he could have by virtue of a 19 subcommittee or certainly an investigative body 20 of the minority, called witnesses and have had 21 experts testify giving their point of view. So 22 he had the same opportunity that we had. This 23 is a year later and Senator Dollinger and his 24 colleagues have not availed themselves of that 25 opportunity. 1371 1 THE PRESIDENT: Senator 2 Dollinger. 3 SENATOR DOLLINGER: And again, 4 through you, Madam President. Could you tell 5 me, Senator, how we would have done that since 6 last Tuesday, the day this matter was put, at 7 the request of the President, on the Codes 8 Committee agenda? 9 SENATOR MALTESE: As the Senator 10 well knows, this is not since last Tuesday, this 11 is since approximately a year ago when this 12 bill, this identical bill was debated before 13 this house and Senator Dollinger spoke at some 14 length on the bill and he had that extensive 15 opportunity and did not avail himself of it. 16 THE PRESIDENT: Senator 17 Dollinger. 18 SENATOR DOLLINGER: Thank you, 19 Madam President. I have one other question, and 20 I'll sit down. 21 Senator, could you explain to me 22 why women's health should not be included in 23 this bill? What do you have against women's 24 health being a factor in a decision involving 25 this procedure? What is it about women's health 1372 1 that you don't like that prevents you from 2 supporting this amendment? 3 THE PRESIDENT: Senator Maltese. 4 SENATOR MALTESE: Madam 5 President, as the Senator well knows, women's 6 health is indeed very important to me. I have 7 a wife, I have two daughters, I have three 8 granddaughters, just recently born. Women's 9 health is very important to me. At the same 10 time, this is again engaging in semantics and 11 rhetoric. 12 Certainly there is -- when we 13 talk about the specifics of the bill, the bill 14 is very specific. As the Senator well knows, 15 expressio unius est exclusio alterius. The 16 expression of one is the exclusion of all 17 others. 18 This bill clearly lays out what 19 is forbidden, again what is a crime for any 20 physician worth his salt, and this bill is very 21 expressive, tells what it is. 22 When you speak of women's health, 23 the President and some others have taken women's 24 health to mean some discomfort, to mean some 25 depression. This bill is plain. It is to save 1373 1 a woman's life, and that's the exception that we 2 give. Women's health, on the other hand, can 3 mean anything to anybody and would not clearly 4 define what is a crime and what is criminal 5 activity. 6 SENATOR DOLLINGER: Madam 7 President. 8 THE PRESIDENT: Senator 9 Dollinger. 10 SENATOR DOLLINGER: I just can't 11 understand why Senator Maltese won't let women's 12 health be defined by women and their physicians. 13 THE PRESIDENT: Senator 14 Oppenheimer, on the amendment. 15 SENATOR OPPENHEIMER: Yes, just 16 one more question, Senator Maltese, if you would 17 yield. 18 SENATOR MALTESE: Yes. 19 SENATOR OPPENHEIMER: This is 20 sort of a philosophic question, I guess: You 21 are a person who believes in pro-life and, 22 therefore, would you not, since you believe that 23 conception begins at the very beginning, that 24 life begins at conception, would you not then 25 term any abortion as being a partial birth 1374 1 abortion? 2 SENATOR MALTESE: I'm sorry, I 3 didn't hear the - 4 THE PRESIDENT: Senator 5 Oppenheimer. 6 SENATOR OPPENHEIMER: If you 7 believe that life begins at conception, would 8 you not then believe that all abortions are 9 partial birth abortions? 10 SENATOR MALTESE: No. Madam 11 President, what I believe or don't believe does 12 not have relevance in this particular case. 13 This is clearly defined, clearly delineated. 14 It's very specific, and it tells what -- it 15 explains and states what a partial birth 16 abortion is. It's amazing that there could be 17 this many interpretations on something that is a 18 partial birth, that is clearly spelled out. 19 And just to allude to Senator 20 Dollinger's last statement that we should leave 21 women's health to women, I assume that from 22 hereafter, he will exclude himself from debate 23 on any issue that affects women or their health. 24 THE PRESIDENT: Does anyone else 25 wish to speak on Senator Connor's amendment? 1375 1 SENATOR OPPENHEIMER: On the bill 2 later. 3 THE PRESIDENT: Senator Mendez. 4 SENATOR MENDEZ: Madam President, 5 I wonder if Senator Dillinger - 6 THE PRESIDENT: Senator 7 Dollinger? 8 SENATOR MENDEZ: -- Would answer 9 a question, and it's on the amendment. 10 Senator, the amendment states 11 that when we change the main bill and add to it 12 adverse effects on the health of a woman -- is 13 that correct? 14 SENATOR DOLLINGER: That's my 15 understanding of the amendment. 16 SENATOR MENDEZ: Now, tell me 17 something: How do you define adverse effects on 18 a woman's health? Would it be a headache? 19 SENATOR DOLLINGER: Through you, 20 Madam President, I define that by asking the 21 woman and her physician, in consultation, to 22 determine what the health consequences are. 23 SENATOR MENDEZ: Senator, you're 24 a very bright man. Adverse effect, could it be 25 a headache? 1376 1 SENATOR DOLLINGER: I leave that 2 to their physician. It's an adverse health 3 consequence. 4 SENATOR MENDEZ: But you have no 5 idea what an adverse effect on a woman's health 6 is? 7 SENATOR DOLLINGER: I could 8 think - 9 SENATOR MENDEZ: You're going to 10 vote yes on the amendment and you have no idea 11 whatsoever? 12 SENATOR DOLLINGER: I leave that 13 judgment, as we do oftentimes, to a decision by 14 a physician in consultation with his or her 15 patient. If that decision is some day called 16 into question, as everyday decisions in this 17 world are in every single context, those terms 18 need to be defined by courts and judges and 19 juries. 20 SENATOR MENDEZ: Senator, in the 21 final answer, you don't know the definition of 22 adverse effects on a woman's health, and yet 23 you're going to vote for this amendment. 24 SENATOR DOLLINGER: I'm going to 25 vote for this amendment because I believe that 1377 1 the adverse health consequences -- what I 2 disagree with Senator Maltese on, fundamentally, 3 is that the decision about adverse health 4 consequences ought to be made by a woman who's 5 fully informed by her physician about what the 6 consequences of a procedure are on her health 7 and her life. It's her call, it's her decision, 8 and I'm willing to let her make it. If that - 9 if it doesn't meet the test of adverse health 10 consequences and it's someday ruled by a judge 11 to have been adverse - 12 SENATOR MENDEZ: It has not 13 been - 14 SENATOR DOLLINGER: Then they 15 take the consequences before the law. 16 THE PRESIDENT: Senator Mendez, 17 just let him finish answering, please. 18 Senator Dollinger. 19 SENATOR DOLLINGER: I'm finished, 20 Madam President. 21 SENATOR LEICHTER: Madam 22 President. 23 THE PRESIDENT: Senator Leichter, 24 do you wish to speak on the amendment? 25 SENATOR LEICHTER: Just with the 1378 1 indulgence of both Senator Mendez and Senator 2 Dollinger, I just want to read the amendment, 3 since they're discussing it. 4 It says "avert serious" - 5 "serious adverse health consequences". I think 6 that answers your question about the headache. 7 SENATOR MENDEZ: Serious? 8 Serious? What would you consider a serious 9 health effect? 10 THE PRESIDENT: Senator Leichter. 11 SENATOR LEICHTER: Well, one that 12 comes to mind is the inability of the woman to 13 have children in the future. 14 SENATOR MENDEZ: That's a serious 15 one. Is there any proof that that's the case? 16 THE PRESIDENT: Senator 17 Oppenheimer, do you wish to speak on the 18 amendment? 19 SENATOR OPPENHEIMER: I was going 20 to respond to my colleague. 21 THE PRESIDENT: Yes. 22 SENATOR OPPENHEIMER: There is a 23 definite reason for why this horrible procedure 24 is used; and, yes, it does have direct bearing 25 on future propagation. You would say that why 1379 1 couldn't a C-section be done, right? You would 2 say why not do a C-section to take out the baby 3 instead of doing it in this alternative way. As 4 it is described to me, a C-section is done 5 across the uterus, obviously this way, and at 6 that stage, before the very final days, the 7 uterus is not wide enough to do the normal 8 C-section; therefore, what has to be done is a 9 vertical line. The vertical line is what the 10 problem is. The incision done in that fashion 11 can impact a woman in the future from having the 12 musculature that can move sufficiently to 13 accommodate a growing fetus, so that's the 14 problem. 15 SENATOR MENDEZ: Madam President. 16 THE PRESIDENT: Senator Mendez. 17 SENATOR MENDEZ: Yes, on the 18 amendment and on the bill - 19 THE PRESIDENT: No, just on the 20 amendment. Please, keep it germane to the 21 amendment, please. 22 SENATOR MENDEZ: I will be voting 23 against this amendment, the reason being that it 24 voids, practically voids the main intention of 25 the main bill. I don't think that the issue of 1380 1 adverse serious effects on a woman -- to me, 2 that's a lot of rhetoric. There's nothing 3 specific on it. It could be interpreted in any 4 way by anybody. It could be that a doctor one 5 day could say, "Okay, it's serious effect on you 6 to have a continuous headache." And that could 7 be a serious effect. Serious effect, that it 8 will be defined differently by many different 9 people. So I think it voids the intention of 10 the main bill and therefore I'll be voting in 11 the negative. 12 THE PRESIDENT: The question is 13 on Senator Connor's amendment. A yes vote will 14 be in favor of the amendment; a no vote will be 15 a vote in opposition to the amendment. 16 SENATOR PATERSON: Madam 17 President. 18 THE PRESIDENT: Senator Paterson. 19 SENATOR PATERSON: We would like 20 a slow roll call on the amendment. 21 THE PRESIDENT: Are there five 22 members wishing a slow roll call? Okay. The 23 question is on the amendment. Will you call the 24 roll, please? 25 THE SECRETARY: Senator Abate. 1381 1 SENATOR ABATE: Yes. 2 THE SECRETARY: Senator Alesi. 3 SENATOR ALESI: No. 4 THE SECRETARY: Senator Breslin. 5 SENATOR BRESLIN: Yes. 6 THE SECRETARY: Senator Bruno. 7 SENATOR BRUNO: No. 8 THE SECRETARY: Senator Connor. 9 (Affirmative indication.) 10 THE SECRETARY: Senator Cook. 11 SENATOR COOK: Yes. 12 Senator DeFrancisco. 13 (There was no response.) 14 Senator Dollinger. 15 SENATOR DOLLINGER: Yes. 16 THE SECRETARY: Senator Farley. 17 SENATOR FARLEY: No. 18 THE SECRETARY: Senator Gentile. 19 SENATOR GENTILE: Yes. 20 THE SECRETARY: Senator Gold, 21 excused. 22 Senator Gonzalez. 23 (There was no response.) 24 Senator Goodman. 25 SENATOR GOODMAN: No. 1382 1 THE SECRETARY: Senator Hannon. 2 SENATOR HANNON: No. 3 THE SECRETARY: Senator Hoffmann, 4 excused. 5 Senator Holland. 6 SENATOR HOLLAND: No. 7 THE SECRETARY: Senator Johnson. 8 SENATOR JOHNSON: No. 9 THE SECRETARY: Senator Kruger. 10 (There was no response.) 11 Senator Kuhl. 12 SENATOR KUHL: No. 13 THE SECRETARY: Senator Lachman. 14 SENATOR LACHMAN: Yes. 15 THE SECRETARY: Senator Lack. 16 (There was no response.) 17 Senator Larkin. 18 SENATOR LARKIN: No. 19 THE SECRETARY: Senator LaValle. 20 SENATOR LAVALLE: No. 21 THE SECRETARY: Senator Leibell. 22 (There was no response.) 23 Senator Leichter. 24 SENATOR LEICHTER: Madam 25 President. 1383 1 THE PRESIDENT: Senator Leichter. 2 SENATOR LEICHTER: To explain my 3 vote. 4 The Majority Leader challenged us 5 to do what's right on this bill and I intend to 6 do right, I'm going to vote against it and I'll 7 explain why I'm against it. I don't like the 8 bill and, frankly, this amendment, in my mind 9 would not cure the basic defect in the bill. It 10 may make the bill somewhat less objectionable 11 and, for that reason, I'm going to vote for it, 12 but I wouldn't want anybody to think that my 13 vote for this amendment in any way means that I 14 think that it makes this a bill that ought to be 15 passed into law. 16 Having said that, Madam 17 President, I'll vote yes. 18 THE PRESIDENT: Thank you. 19 Continue to call the roll. 20 THE SECRETARY: Senator Levy. 21 SENATOR LEVY: No. 22 THE SECRETARY: Senator Libous. 23 SENATOR LIBOUS: No. 24 THE SECRETARY: Senator Maltese. 25 SENATOR MALTESE: No. 1384 1 THE SECRETARY: Senator 2 Marcellino. 3 SENATOR MARCELLINO: No. 4 THE SECRETARY: Senator Marchi. 5 SENATOR MARCHI: No. 6 THE SECRETARY: Senator 7 Markowitz. 8 SENATOR MARKOWITZ: Yes. 9 THE SECRETARY: Senator Maziarz. 10 SENATOR MAZIARZ: No. 11 THE SECRETARY: Senator Meier. 12 SENATOR MEIER: No. 13 THE SECRETARY: Senator Mendez. 14 SENATOR MENDEZ: No. 15 THE SECRETARY: Senator 16 Montgomery. 17 SENATOR MONTGOMERY: Yes. 18 THE SECRETARY: Senator Nanula. 19 (There was no response.) 20 Senator Nozzolio. 21 (There was no response.) 22 Senator Onorato. 23 SENATOR ONORATO: Yes. 24 THE SECRETARY: Senator 25 Oppenheimer. 1385 1 SENATOR OPPENHEIMER: To explain 2 my vote. 3 THE PRESIDENT: Senator 4 Oppenheimer. 5 SENATOR OPPENHEIMER: I would 6 have to concur with Senator Leichter that this 7 is an amendment that improves a terrible bill 8 and I will be supporting it, but it's a terrible 9 bill, which I'll talk on when we get to the 10 bill. 11 I'm voting yes on the amendment. 12 THE PRESIDENT: Continue the roll 13 call, please. 14 THE SECRETARY: Senator Padavan. 15 SENATOR PADAVAN: No. 16 THE SECRETARY: Senator 17 Paterson. 18 SENATOR PATERSON: Yes. 19 THE SECRETARY: Senator Present. 20 SENATOR PRESENT: No. 21 THE SECRETARY: Senator Rath. 22 SENATOR RATH: No. 23 THE SECRETARY: Senator Rosado. 24 SENATOR ROSADO: Yes. 25 THE SECRETARY: Senator Saland. 1386 1 SENATOR SALAND: No. 2 THE SECRETARY: Senator Sampson. 3 SENATOR SAMPSON: Yes. 4 THE SECRETARY: Senator Sanitago. 5 SENATOR SANTIAGO: Yes. 6 THE SECRETARY: Senator Seabrook. 7 SENATOR SEABROOK: Yes. 8 THE SECRETARY: Senator Seward. 9 (There was no response.) 10 Senator Skelos. 11 SENATOR SKELOS: No. 12 THE SECRETARY: Senator Smith. 13 SENATOR SMITH: Yes. 14 THE SECRETARY: Senator Spano. 15 SENATOR SPANO: No. 16 THE SECRETARY: Senator 17 Stachowski. 18 SENATOR STACHOWSKI: No. 19 THE SECRETARY: Senator Stafford. 20 SENATOR STAFFORD: No. 21 THE SECRETARY: Senator Stavisky. 22 SENATOR STAVISKY: Yes. 23 THE SECRETARY: Senator Trunzo. 24 SENATOR TRUNZO: No. 25 THE SECRETARY: Senator Tully. 1387 1 SENATOR TULLY: No. 2 THE SECRETARY: Senator Velella. 3 SENATOR VELELLA: No. 4 THE SECRETARY: Senator Volker. 5 (There was no response.) 6 THE SECRETARY: Senator Waldon. 7 SENATOR WALDON: Yes. 8 THE SECRETARY: Senator Wright. 9 SENATOR WRIGHT: No. 10 THE PRESIDENT: Yes, call the 11 absentees, please. 12 THE SECRETARY: Senator 13 DeFrancisco. 14 SENATOR DeFRANCISCO: No. 15 THE SECRETARY: Senator Gonzalez. 16 (There was no response.) 17 Senator Kruger. 18 SENATOR KRUGER: Yes. 19 THE SECRETARY: Senator Lack. 20 SENATOR LACK: No. 21 THE SECRETARY: Senator Leibell. 22 SENATOR LEIBELL: No. 23 THE SECRETARY: Senator Nanula. 24 SENATOR NANULA: Yes. 25 THE SECRETARY: Senator Nozzolio. 1388 1 SENATOR NOZZOLIO: No. 2 THE SECRETARY: Senator Seward. 3 SENATOR SEWARD: No. 4 THE SECRETARY: Senator Volker. 5 (There was no response.) 6 THE PRESIDENT: The results. 7 THE SECRETARY: Ayes 22, nays 35. 8 THE PRESIDENT: The amendment is 9 defeated. 10 On the bill. Senator Meier. 11 SENATOR MEIER: Madam President, 12 my colleagues. 13 SENATOR SKELOS: Senator Meier, 14 if I could interrupt for a moment. 15 THE PRESIDENT: Senator Skelos. 16 SENATOR SKELOS: Madam President, 17 at this time could we have the last section read 18 for the purposes of three members voting. 19 THE PRESIDENT: The Secretary 20 will read the last section. 21 THE SECRETARY: Section 3. This 22 act shall take effect on the 1st day of 23 November. 24 THE PRESIDENT: Call the roll, 25 please. 1389 1 (The Secretary called the roll. ) 2 SENATOR SKELOS: Please recognize 3 Senator Holland. 4 SENATOR HOLLAND: I vote yes. 5 SENATOR SKELOS: Senator Tully. 6 SENATOR TULLY: Yes. 7 SENATOR SKELOS: And Senator 8 Nanula. 9 SENATOR NANULA: No. 10 SENATOR SKELOS: Withdraw the 11 roll call. 12 THE PRESIDENT: Thank you. 13 Senator Meier. 14 SENATOR MEIER: Thank you, Madam 15 President. 16 The first time I entered this 17 chamber was some 20 years ago as counsel then to 18 the late Senator James Donovan and, as those of 19 you who had the privilege of knowing him and 20 serving with him in this chamber will recall, he 21 was for 25 years the leading advocate for life 22 in this chamber and even more consistently for 23 children, and when he spoke about life, he spoke 24 with a special credibility because he did it 25 with a consistent ethic of supporting children, 1390 1 in advocating for the unborn and for decent 2 pre-and post-natal care for mothers and infants, 3 for the rights of the handicapped and for 4 adequate education for all children. 5 I mention Senator Donovan, whose 6 seat I now proudly hold, because the fact that 7 we are even having this debate today stands as 8 evidence that his greatest fear has been 9 realized. He warned this body and he warned 10 this state that a society which too freely draws 11 lines about which life we will protect and which 12 life we will respect would soon be a society 13 which would draw no lines at all. 14 My colleagues, was he wrong, when 15 we can now seriously discuss whether a matter of 16 seconds and centimeters can make a real moral 17 difference in terminating a life? And no matter 18 how anyone may vote today, nearly every member 19 will acknowledge that the issue before the 20 Senate is profoundly troubling, troubling 21 because one of the leading defenders of this 22 procedure, Ronald Fitzsimmons, whose name has 23 been used before here today, has not only 24 acknowledged that the defense has been built 25 upon a series of lies about frequency and 1391 1 circumstances, but also because of his 2 stunningly frank admission that any abortion 3 culminates in the death of a living being and, 4 in the case before us, the life which is ended 5 is not easily deprived of humanity by using 6 words or by definition as a zygote, a mass of 7 tissue, or a fetus. The life which is ended in 8 partial birth abortion plainly, by visual 9 observation, looks to be and is, in fact, a 10 child. 11 Today many of us in this chamber 12 may have different views on the overall issue of 13 abortion, and I do not mean to argue, indeed it 14 is dangerous to argue, that we should make legal 15 and moral judgments on life itself, only at the 16 point where what we can see makes us squeamish, 17 but still, my colleagues, I suggest to you that 18 it is even more dangerous to stand before this 19 body of evidence which invites revulsion and do 20 nothing. 21 Let us draw a line today, my 22 colleagues, and let us draw that line in favor 23 of life. 24 ACTING PRESIDENT MARCELLINO: 25 Senator Farley. 1392 1 SENATOR FARLEY: Senator Meier, 2 I've been moved by what you've had to say. Jim 3 Donovan was a very dear friend of mine, and you 4 did him proud. 5 Let me just say a few things on 6 this bill. You know, we're here to represent 7 society. You know, if society has spoken 8 clearly on anything, they have on late term 9 abortions. The vast majority, the overwhelming 10 majority, has said that this crosses the line. 11 It's not an issue of pro-life or pro-choice. 12 It's an issue of human decency, and this truly 13 crosses the line of human decency. 14 Senator Daniel Patrick Moynihan 15 has called it infanticide. Allen Dershowitz, 16 not one of my favorite Conservatives, has said 17 that this crosses the line. You know, editorial 18 after editorial in this state, by papers that 19 supposedly think of themselves as pro-choice, 20 has urged this Legislature to do something about 21 banning these late term abortions. They're 22 absolutely disgusting. 23 I respect the opinions of many, 24 and it's interesting, on the vote on this 25 legislation which would pass easily in the 1393 1 Assembly if it was let come to the floor and 2 Governor Pataki who claims that he's pro-choice 3 has said he will sign it. This should be banned 4 and I'm telling you, I think it will be banned. 5 Whether New York State steps up and does it, I 6 think that the federal government is going to do 7 it. If there's a veto, it will be overridden. 8 This is a procedure that is 9 unspeakable. I'm ashamed even to discuss it 10 with people because it is so disgusting that 11 people would do this to a child that could live 12 on its own. There was a woman that testified 13 before Congress who was going to be a late term 14 abortion and yet the doctor happened to be out 15 of the room and the nurses let the child live 16 and she thanks -- thanks God every day for her 17 life. 18 We must act on this legislation 19 and I applaud Senator Bruno for bringing it to 20 the floor and Senator Maltese for the excellent 21 description that you've given and the reason for 22 this. I happen to be a lawyer and a law 23 professor. I see no constitutional problem at 24 all. I think it's very clear that this bill 25 says exactly what is laid out and what should be 1394 1 done. 2 I urge its passage. 3 ACTING PRESIDENT MARCELLINO: 4 Senator Goodman. 5 SENATOR GOODMAN: Mr. President, 6 this bill has been extensively debated and 7 explored again today and many of you will recall 8 that I spoke at some length in opposition to it 9 when it was first presented to the house earlier 10 this year. I change not one jot or tittle of 11 what I had said then and I reaffirm precisely 12 that aspect of the debate, but I would like to 13 say one or two additional things as we're 14 confronted with this very vexatious problem 15 today. 16 Those who put forth this bill 17 would have us believe that we're thinking in 18 terms of a perfect Gerber baby emerging from a 19 woman being slaughtered by being stabbed in the 20 head and in the neck with a vicious weapon that 21 puts an end to the life of this exquisite 22 child. 23 This is a public relations 24 nightmare which is dreamed up by I know not 25 whom, but I can only say to you it is an utter 1395 1 distortion of what is really at stake in this 2 matter, because what is happening here is 3 something very different. What is happening 4 here is that in point of fact practically nobody 5 has these abortions at the point where that baby 6 looks like a Gerber baby. Practically nobody 7 has the abortion at a time when there's a fully 8 developed fetus viable outside the womb. The 9 fact of the matter is that there's a cruel 10 numbers game which was kicked off by Mr. 11 Fitzsimmons, whom I do not know and whom I 12 deplore unreservedly, by the dissemination of 13 his numbers, but at least if he was going to 14 correct the record which he sought to do, he 15 might have made it clear what he was talking 16 about, which he most assuredly did not. He left 17 us with the impression that there are thousands 18 and thousands of these babies which are being 19 slaughtered in the manner which I just 20 described, and that is a bald-faced lie. 21 The fact of the matter is that 22 only some 600 abortions, no matter what the 23 procedure, occur either after the sixth month of 24 pregnancy in the United States each year. I 25 repeat only 600, no matter what the procedure, 1396 1 occur after the sixth month of pregnancy in the 2 entire United States each year, tragically 3 deformed fetus or a mother in peril. 4 What's a tragically deformed 5 fetus? It's not the Gerber baby. It's a child 6 who, by the grace of God and some unbelieveable 7 distortion of the normal reproductive process, 8 has a brain growing outside its head. It's a 9 child those liver is outside of its body. It's 10 a child born with no genitalia. It is a child 11 who is incapable of surviving once it is removed 12 from the womb by any method. 13 Mr. President, it's tragic and 14 unbelieveable that we've distorted this to the 15 point that we have, but I'd like to raise the 16 question very briefly as to who are the people 17 who go through this procedure and why? Why the 18 delay? Why do they wait until the very last 19 moment? 20 Opponents of partial birth 21 abortion say these women in the final weeks or 22 days of pregnancy, even as Jack Kemp said during 23 the convention, just seconds away from delivery, 24 whimsically opt for infanticide. Some would 25 accuse them of doing this because their prom 1397 1 dresses no longer fit as they become larger in 2 the stomach, and have this procedure. This is 3 outrageous. This is not what this is about in 4 any manner, shape or form. 5 Several thousand other cases of 6 people who have these abortions occur earlier 7 when the fetus -- before a fetus is viable. 8 We're talking about abortions that are legally 9 provided for, not only federally under Roe v. 10 Wade but by the state of New York which in 1970, 11 before Roe vs. Wade said that you could perform 12 these abortions. 13 Now candor compels us to say that 14 an abortion at any time and at any point in the 15 development of the fetus is a cruel and 16 horrendous thing to contemplate. Are we aware 17 what a dilitation and curettage is? You take 18 something shaped like a hoe, a garden hoe, and 19 you scrape the uterus, and if there's an embryo 20 attached to the uterus, you scrape it, you pull 21 off its legs, you dismember it, you remove it 22 from the human female, and that's an abortion. 23 That's not just the procedure of this terrible 24 misnomer that we've been discussing. That's a 25 normal abortion, but I would remind you that 1398 1 those of us who are supporters of the abortion 2 process and believe in a woman's choice, we have 3 supported not the process but the woman's right 4 to choose it if she and her doctor and her 5 clergyman and her husband conclude she needs it, 6 that we sanction this for the reason that we 7 believe that the fetus is not a human being, 8 that it is not yet viable, that it is incapable 9 of sensate feeling, that it is in such a 10 primitive state of development that it is primal 11 fibrillae. That's a vital distinction that we 12 must always keep in mind in this matter. 13 Now I'd like to return to the 14 question of what it is that prompts women to 15 have these late procedures. Some who delay 16 abortions to the second trimester are poor or 17 rural women who have to save up for an abortion 18 or a trip to a provider, and let me remind you 19 that 84 percent of American counties don't have 20 a provider. There's no way to get an abortion 21 in these counties. Scared women delay because 22 of the harassment at their local clinics. 23 Now the Supreme Court says you 24 can yell and scream your head off as a woman 25 approaches a clinic as long as it's within 15 1399 1 feet of the front door so she can get in this. 2 How would you like to go to any medical clinic 3 for any medical procedure and have people waving 4 and shouting at you that you are committing 5 murder. I don't care whether it's 15 feet or 15 6 yards or 15 miles; that is a daunting procedure 7 and no wonder people are so reluctant to place 8 themselves in this position. 9 Teen-age girls who are in denial 10 or traumatized by parental notification laws 11 and, incidentally, on parental notification laws 12 maybe the father of the child is the father of 13 the individual having the abortion in cases of 14 incest which tragically occur. 15 I say to you that we have a 16 situation where a woman can learn from an 17 amniocentesis which can only occur -- which can 18 only be used late in pregnancy to reveal a gross 19 abnormality of the fetus, that that's another 20 reason for the delay. These are not capricious 21 ly done and I beg you not to conclude that this 22 is because a prom dress does not fit. That 23 would be an entirely cruel and inappropriate 24 observation, and I beg those who said that to 25 recant it. 1400 1 Now, what this seems to me to 2 boil down to is this: We're dealing with 3 something so sensitive and so sacred and 4 delicate in the matter of child birth, that the 5 fear of having to take the life of an embryo, of 6 a fetus, of a human child is at any point in its 7 development something we vastly prefer not to 8 see happen. 9 So let us think as we have this 10 debate how important it is to provide family 11 planning and clinic information to prevent the 12 creation of an infant in the first place, and 13 let us think how important sex education is and 14 let us think how important proper contraception 15 is to prevent these tragedies from ever 16 occurring. We don't speak much about these 17 matters, my friends, but these are things which 18 any responsible legislator must have in the 19 foreground of consciousness. 20 Now, I'd like to conclude this by 21 simply saying to you that what's at stake here 22 is very much more than just the debate about 23 this type of abortion. This is nothing more nor 24 less than a thinly veiled attack on the whole 25 concept of legal abortion as defined by Roe vs. 1401 1 Wade and by the 1970 law which I voted for when 2 I was in this chamber in that year. 3 This is an attempt to make every 4 possible effort to create such a psychology of 5 fear in a physician that he wouldn't touch this 6 type of thing with a 20-foot pole. No physician 7 wants to go to jail. No physician wants to 8 perform an E felony procedure and, if there's 9 even the slightest doubt that that could be at 10 stake, what physician would dare to assist a 11 woman in need of an abortion for the most legal 12 and compelling reason. 13 This is going to throw a chill 14 throughout this whole process. This is going to 15 prevent the thing for which some of us fought so 16 hard, which is not for abortion which many of us 17 oppose but for the right of a woman to make the 18 choice whether to have an abortion. That's 19 what's integrally involved in this, and that's 20 what we must never forget. 21 I beg you, my friends, not to be 22 taken in by the image of the Gerber babies 23 sliding into oblivion at the end of a scissors 24 and being slaughtered. This is not what this is 25 about. It is about a human attempt to try to 1402 1 save women, to try to save their lives, to try 2 to save them from infertility and to try to 3 prevent the birth of children who are hideously 4 deformed and can never live outside the womb. 5 If we keep that in mind, I think 6 the conclusion is clear that we must vote in 7 opposition to this dreadful piece of 8 legislation. 9 ACTING PRESIDENT MARCELLINO: 10 Senator Cook. 11 SENATOR COOK: Mr. President, 12 thank you. 13 Mr. President, people see this 14 bill in a variety of different ways. People see 15 it as a moral issue. Thankfully, we can't amend 16 the moral law. The moral law is what the moral 17 law is. God said to Moses, "I am who I am" and 18 there isn't any way we can change it. 19 Neither is it amending the Health 20 Law which a lot of people seem to be talking 21 about, because it is an amendment to the Penal 22 Law. It starts out: "Section 1. The Penal Law 23 is hereby amended," and then it defines how that 24 person -- how that law is amended, by saying, a 25 person is guilty of a partial birth abortion 1403 1 when he or she knowingly, et cetera, et cetera, 2 and then in Section 3, a female upon whom a 3 partial birth abortion is performed may not be 4 prosecuted. 5 Now, I think there lies the crux 6 of what we're talking about. It is not a moral 7 issue. It is not, because we can't -- we can 8 not legislate morality. It is not a health 9 issue. It is a legal issue, and it is a civil 10 rights issue, and it is a question of who is 11 going to be impacted by prosecuting the person 12 who's named in paragraph one, that is the - 13 presumably the doctor, and who is going to 14 really suffer. 15 What does this do in practical 16 terms? It means that a district attorney now can 17 go into a hospital, can invade the private 18 health records of women upon what -- who knows 19 what, whatever information may reach him, that 20 phone call that somebody calls up and says, I 21 understand that Mrs. Jones had an abortion. You 22 better go down there to the hospital and dig 23 through her records and make sure she didn't 24 break the law, or that her doctor didn't break 25 the law. 1404 1 Then what supposedly the district 2 attorney finds this to be the case, now how does 3 he create a prima facie case for an indictment? 4 Certainly the only way he can do it is to go 5 before the grand jury, present Mrs. Jones' 6 health records and prove that she had an 7 abortion, or show that she had an abortion 8 whereby presumably the grand jury issues an 9 indictment. 10 Now, the district attorney has 11 the third step of the process, and that is how 12 am I going to prove this? Well, there's one 13 primary witness. That primary witness is the 14 woman who had the abortion. 15 Now, remember, most people in 16 those circumstances would be able to get on the 17 witness stand and say, I decline to answer the 18 question on the grounds of self-incrimination, 19 but we've said in the bill, you can't incrimin 20 ate yourself. You can't be prosecuted. There 21 fore, you've got to sit there and answer every 22 question. 23 O.K., Mrs. Jones, when did you 24 have this abortion? Why did you have this 25 abortion? What led up to it? How many people 1405 1 did you see? Who's the father? What circum 2 stances? 3 All those personal questions that 4 the woman who has had the abortion is the indi 5 vidual who's put on trial, not the individual 6 who is named in the first paragraph, the first 7 sentence of this bill, and that's why it is a 8 travesty upon the civil rights of every woman in 9 this state to say that we are now going to place 10 them in the very possibility if they choose to 11 have an abortion of having to answer in an open 12 court for whether or not they had this 13 particular type of abortion and, if so, why they 14 had it and when they had it, and what are the 15 circumstances. 16 This is not an appropriate piece 17 of legislation for us to do, whatever may be the 18 medical situation. I think that's for people 19 who deal with medical ethics to solve that 20 problem, but we should not put people -- we 21 should not endanger people's civil rights by 22 forcing them to sit before the entire public and 23 explain to the whole world all the most private 24 secrets that they have held. 25 ACTING PRESIDENT MARCELLINO: 1406 1 Senator Leichter. 2 SENATOR LEICHTER: Mr. President, 3 I'm going to ask Senator Maltese to yield, but I 4 first just want to say, Senator, I appreciate 5 that -- your very deep morally held views on 6 this subject, and I respect that, and also 7 Senator Farley and other people who support this 8 bill and who really are against any abortion. 9 I strongly disagree with you, but 10 I understand where this bill comes from. But 11 yet this bill is presented to us in such 12 emotional terms and such misconceptions, and I 13 think is so far off the mark and I really want 14 to commend Senator Goodman because I think that 15 he really dealt with the fact, with issues and 16 reality that have to be dealt with, and I think 17 Senator Cook's comments were very well taken 18 too, because I must say that the support for 19 this bill is founded on misconceptions, argued 20 in sort of a fog of unreality which denies what 21 really happens. It denies the role of the 22 doctor. It belittles the woman and, insofar as 23 you argue that Mr. Fitzsimmons lied and 24 apparently he lied, but that was never the 25 issue. 1407 1 The issue wasn't whether it was 2 5,000 or 100 of these procedures that were being 3 done because if it was wrong, if one were done 4 it shouldn't be allowed, and if it was right and 5 needed to be done and was medically correct, 6 then it doesn't matter whether it's 100 or 7 whether it's 5,000. So I think that really has 8 no bearing on what the issue is. 9 Senator Maltese, if you would 10 yield, please. 11 ACTING PRESIDENT MARCELLINO: 12 Senator Maltese, do you yield? 13 SENATOR MALTESE: Yes. 14 SENATOR LEICHTER: I listened to 15 some of the answers you made to Senator 16 Oppenheimer and Senator Abate and, as I 17 understood your definition of the bill as you 18 yourself said, nowhere in the -- nowhere in any 19 medical book, nowhere in any law can you find 20 the expression "partial birth abortion" and 21 we're dependent upon the legislation and you as 22 the sponsor to tell us what it is you're talking 23 about. 24 Now, I thought I understood you 25 to say that dilation and extraction is not 1408 1 covered by your particular bill. Did I 2 understand that - 3 SENATOR MALTESE: Dilation and 4 extraction is. It's dilation and evacuation 5 that's not. 6 SENATOR LEICHTER: Well - 7 SENATOR MALTESE: The way they 8 recite it is the dilation and evacuation, which 9 is the tag out piecemeal. The dilation and 10 extraction, the D&X as termed by Dr. Haskell is 11 the dilation and extraction of the living 12 fetus. 13 SENATOR LEICHTER: O.K. And the 14 evacuation - 15 SENATOR MALTESE: Is not 16 covered. 17 SENATOR LEICHTER: -- you say is 18 not covered. 19 SENATOR MALTESE: Is not 20 covered. 21 SENATOR LEICHTER: The partial 22 dismembering of the fetus. 23 SENATOR MALTESE: Is not 24 covered. 25 SENATOR LEICHTER: Well, you've 1409 1 answered that. I wanted to ask you whether I 2 understood you correctly to say that what you're 3 talking about is when a fetus as delivered is 4 partially viable; is that correct? Did I 5 understand you to say that? 6 SENATOR MALTESE: Well, the 7 phraseology of the bill -- Mr. President, the 8 phraseology of the bill is "a living fetus", so 9 whether or not it is viable, capable of life 10 outside the womb is the question here, and it is 11 a living fetus, so it would have to be viable 12 outside the womb to be a living fetus. 13 SENATOR LEICHTER: Again if you 14 will continue to yield. Through the Chair, 15 Senator Maltese, again, I don't believe there's 16 any clear definition of what is meant by "living 17 fetus". I mean I think a fetus, in a sense, is 18 living -- a living cell is living. To be viable 19 is something else. 20 Now, you have stated that your 21 bill, and you used the expression "a living 22 fetus", you're saying that the fetus is viable. 23 In other words, outside of the womb it can exist 24 on his or her own. 25 SENATOR MALTESE: I'm sorry, 1410 1 Senator. I'm sorry, I didn't hear the 2 question. I was trying to get - 3 SENATOR LEICHTER: In other 4 words, living, you're telling us that a living 5 fetus is viable, what the law presently terms as 6 being "viable" meaning that the fetus can live 7 outside of the womb on his or her own. 8 SENATOR MALTESE: Mr. President, 9 as I understand the term "viable" it's capable 10 of life outside the womb. I think that is 11 different than a living fetus. The fetus has, 12 as I understand, these doctors in their 13 terminology extracting it from the vagina and 14 they -- at that point, it is a living fetus, but 15 I believe incapable in some cases of surviving 16 outside the womb. 17 So we're talking about a living 18 fetus which then is killed. I think there's no 19 question that, if the fetus drew its first 20 breath and the doctor then plunged the scissors 21 into the back of the neck, that would be a 22 murder in anybody's definition, so I think there 23 is some difference between a living fetus and a 24 living human being or a living person. 25 SENATOR LEICHTER: Well, Senator, 1411 1 the - 2 ACTING PRESIDENT MARCELLINO: 3 Senator, do you continue to yield? 4 SENATOR LEICHTER: If you 5 continue to yield. 6 ACTING PRESIDENT MARCELLINO: Do 7 you continue to yield, Senator? 8 SENATOR MALTESE: Excuse me. I 9 continue, yes. 10 ACTING PRESIDENT MARCELLINO: He 11 continues. 12 SENATOR LEICHTER: And with all 13 respect, the reason for the difficulty is 14 because you're giving us language which just is 15 not understood in either medical terms or in 16 scientific terms or legal terms, but I think I 17 understand now. 18 You're saying that, in your 19 definition, a living fetus is something else 20 than viability outside of the womb; is that 21 correct? 22 SENATOR MALTESE: Yes, that's 23 correct, Senator. 24 SENATOR LEICHTER: O.K. 25 SENATOR MALTESE: I was trying to 1412 1 get ahold of the definitions for the D&E and 2 D&X, and so on, but they deal with the 3 procedures and not the fetus itself. 4 SENATOR LEICHTER: Right. So, 5 therefore, if the doctor did not plunge the 6 knife, the scissors or whatever it is, I started 7 to describe it in the very graphic terms that 8 you used, but did not take the medical 9 procedure, I think it's a common scissors, not a 10 knife, it's a - 11 SENATOR MALTESE: Metzenbaum, Mr. 12 President, a Metzenbaum scissor as described by 13 Dr. Haskell. 14 SENATOR LEICHTER: O.K. It's a 15 surgical tool that, if he didn't do that, that 16 so-called living fetus would expire because it's 17 not viable. 18 SENATOR MALTESE: Mr. President, 19 no, that isn't my -- that isn't my interpreta 20 tion or my understanding. 21 SENATOR LEICHTER: My 22 understanding - 23 ACTING PRESIDENT MARCELLINO: 24 Excuse me. The Chair, in the interest of the 25 debate and time, has not been pushing the fact 1413 1 that the question should be referred through the 2 Chair to the individual Senators-at-large, but 3 if we could do that, we might get some more 4 clarity in the debate. 5 Senator, do you continue to 6 yield? 7 SENATOR LEICHTER: Thank you, Mr. 8 President. 9 SENATOR SKELOS: Mr. President. 10 ACTING PRESIDENT MARCELLINO: He 11 continues to yield, sir. 12 SENATOR SKELOS: What time did 13 the debate begin? 14 ACTING PRESIDENT MARCELLINO: 15 3:24, sir. The official two hours will be up at 16 5:24. 17 Senator? 18 SENATOR LEICHTER: Well, Senator, 19 I asked you before, is that living fetus viable 20 as it's now understood in the law? It's referred 21 to, in fact, in the Penal Law which you're 22 amending, Section 4-164 talks about viable 23 births, and my question to you is that fetus 24 which has been extracted from the womb in this 25 particular procedure, if it were without 1414 1 anything further being done -- I'm sorry, let me 2 rephrase it. That living fetus once extracted 3 from the womb is not viable and, therefore, 4 could not survive outside the womb, isn't that 5 correct? 6 SENATOR MALTESE: Mr. President, 7 I've been handed the definition of viability: 8 Ability to live outside the womb, and according 9 to Dr. SanFilippo, one of the physicians we had 10 here during the last debate, a fetus has 11 virtually no chance of viability, ability to 12 live outside the womb, before 22 weeks and a ten 13 percent chance of viability at 22 weeks. At 24 14 weeks, the subject of many of these partial 15 birth abortions, a fetus has a 50 percent chance 16 of viability, ability to live outside the womb. 17 So I don't know, Mr. President, 18 and my colleague, the terms "viability" and 19 "living", I don't think are necessarily 20 consistent. I don't think they're both 21 synonymous. 22 SENATOR LEICHTER: Again, 23 Senator, if - 24 ACTING PRESIDENT MARCELLINO: Do 25 you continue to yield, Senator? 1415 1 SENATOR MALTESE: Yes. 2 ACTING PRESIDENT MARCELLINO: He 3 continues to yield. 4 SENATOR LEICHTER: Would you 5 agree with me that, under the statute -- let me, 6 just so I have to repeat the question, that 7 under the statute, under the law of the state of 8 New York, that if there's a fetus that is viable 9 that there are protections provided in the law 10 to see that that fetus is now a child, is born 11 alive, is taken care of, and the statute makes 12 it clear, in fact, that there has to be a second 13 doctor has to be in attendance if it's a 14 trimester abortion, and if it turns out that the 15 fetus is viable, then it's to be accorded all 16 the protections in law that goes to human 17 beings, so if that's what you're dealing with, 18 Senator, we wouldn't need -- we wouldn't need 19 your bill because that's already the law of the 20 state of New York. 21 Clearly, you're dealing with 22 something else, and if it's not viable, that 23 living fetus, when it's extracted from the womb, 24 then it clearly would expire because it's no 25 longer cap... doesn't have any longer the 1416 1 support system of the mother in the womb, isn't 2 that correct? 3 SENATOR MALTESE: I followed the 4 somewhat circuitous reasoning, but I believe 5 what your conclusion is, is correct. 6 SENATOR LEICHTER: O.K. Thank you 7 and isn't it -- isn't it a fact - 8 ACTING PRESIDENT MARCELLINO: 9 Does the Senator continue to yield? 10 SENATOR LEICHTER: Yes. Does he 11 continue to yield? 12 And isn't it a fact that any 13 fetus in the womb is living in the sense that 14 it's an organism, it's cells, they're alive to 15 my mind. It's not a live person. It's not a 16 living person. It's not a person at all, but 17 under some religious views and under your views 18 it is, but what is the difference between a 19 so-called livable fetus that during abortion in 20 the third or fourth weeks is extinguished 21 through the process as Senator Goodman described 22 graphically as scraping the womb, or a livable 23 fetus, again not viable, not able to live 24 outside the womb, which when as part of the 25 procedure is being pulled out of the womb 1417 1 instead of just leaving that livable fetus, that 2 fetus, to expire, a medical procedure is taken 3 so as to extinguish the livable organism? 4 SENATOR MALTESE: Well, Mr. 5 President, I believe the Senator lost me 6 somewhere along the line, but I think that, you 7 know, the bill again, I have to go back to the 8 definition. It's partially vaginally delivering 9 a living fetus before killing the fetus after 10 and completing the delivery, so he has partially 11 delivered a living fetus, so he's delivered it. 12 It has nothing to do with an embryo or cells or 13 anything else. This is a -- would be perceived 14 because of the -- the age, the 24 weeks or the 15 20 weeks, as a viable fetus in most cases, 16 depending on the age of the fetus. 17 ACTING PRESIDENT MARCELLINO: 18 Senator Maltese, will you continue to yield? I 19 presume the Senator has some more questions. 20 SENATOR LEICHTER: Yes. I don't 21 mean to drag this on, and I understand members 22 are getting a little restless, but I think it's 23 terribly important because you keep on shifting 24 your definitions. 25 Now, again, you're talking about 1418 1 viability. Viability is covered under the law. 2 That's covered right now. We don't need your 3 bill. Your bill is talking about viability and 4 that's already the law, so you're talking about 5 the fetus that cannot survive outside the womb 6 and what I'm trying to answer - 7 SENATOR MALTESE: Mr. President, 8 if I may, you said -- you're talking about a 9 fetus that cannot survive outside of the womb, 10 and I'm not talking about a fetus that cannot 11 survive outside the womb. I'm talking about a 12 fetus that may or may not survive outside the 13 womb. 14 SENATOR LEICHTER: But excuse me, 15 Senator, you're -- Senator Maltese - 16 ACTING PRESIDENT MARCELLINO: Do 17 you continue to yield? 18 SENATOR MALTESE: Yes. 19 SENATOR LEICHTER: You're an 20 excellent lawyer. You're a prosecutor. You've 21 taken criminal statutes, you've applied them, 22 and you construe them strictly as you have to 23 do. If you're talking about viability, that's 24 already covered in the law. You don't have to 25 do anything because the law makes it very clear 1419 1 that as to a fetus that's taken out of the womb, 2 if that fetus had viability it's accorded the 3 protection it -- it's a human being and the 4 state of New York provides the additional 5 protection of saying that, in the trimester, a 6 second doctor has to be there to be sure that 7 that viable fetus, now a child, is given all the 8 chance and opportunity to live. 9 That's not your bill. You're 10 talking about what you define and what I don't 11 see defined anywhere else as a living fetus. My 12 question to you -- I'll just ask it one more 13 time -- living fetus outside of the womb that 14 cannot survive or a living fetus in the womb 15 that also cannot survive outside of the womb in 16 one instance through the usual procedure of 17 scraping the womb, that living organism, that 18 fetus is extinguished. 19 Now, you have that fetus outside 20 the womb that's extinguished. What is the moral 21 difference? What is -- I understand you don't 22 like the procedure at all, but can you forget 23 the moral distinction? Can you give me any 24 rational distinction? 25 SENATOR MALTESE: Mr. President, 1420 1 I certainly think there's a rational as well as 2 a moral distinction here. When the good 3 Senator, my good colleague, talks about scraping 4 he's obviously talking about cells or an embryo 5 or a partially formed human being or a partially 6 formed fetus. 7 There's quite a bit of difference 8 between a delivery of a living fetus and then 9 killing the fetus. I think what the good 10 Senator is choosing to forget is Dr. Haskell's 11 very elaborate description of what is involved 12 here. This doctor did not put his hand into the 13 woman's body and extract a protoplasm or tissues 14 of some type. He took first one extremity, a 15 leg, then he took another extremity, another 16 leg, then he reached behind and below the spinal 17 column and carefully moved the shoulders. 18 This is a living fetus, this is 19 a, but for a few minutes and a few centimeters, 20 a living breathing human being, but for a few 21 minutes and that is what, if we're trying to 22 engage in semantics or terminology in trying to 23 distinguish between a fetus and cells, there's 24 quite a hell of a lot of difference here, Mr. 25 President. 1421 1 We're talking about the type of 2 delivery, the type of -- and we're talking about 3 using a term that's very simple -- killing the 4 fetus and completing the delivery. 5 The description that's been made 6 here is very clear. The doctor holds his hands 7 here, none of the evidence before the Congress, 8 before the United States Senate and before this 9 house and the Assembly had this difficulty 10 ascertaining exactly what this distinction is. 11 I think, on its face, it's clear on its face and 12 I think it's understandable to most of us. 13 SENATOR LEICHTER: One final 14 question. 15 ACTING PRESIDENT MARCELLINO: 16 Will you yield to one final question? 17 SENATOR MALTESE: Yes. 18 SENATOR LEICHTER: I think. 19 Irrespective of the answer, it will be the final 20 question. 21 Is the fetus at conception - 22 conception occurs and the egg and the sperm as 23 we learned, and let's say after two or three 24 weeks, there's a fetus. Do you -- do you define 25 that as a living fetus? 1422 1 SENATOR MALTESE: Do I - 2 SENATOR LEICHTER: Fetus in the 3 womb. That's defined as -- under your 4 definition of "livable fetus" and you've got to 5 help us because we can't go anywhere and you 6 made up these terms. 7 SENATOR MALTESE: Well, I didn't 8 make them up, Mr. President. 9 SENATOR LEICHTER: Well, they're 10 certainly not in any medical book. They're 11 certainly not in any statute. They're not in 12 any scientific treatise or work, so I'm relying 13 on you. My question is that embryo, that fetus 14 in the womb, in the first trimester, is that a 15 livable fetus? 16 SENATOR MALTESE: No, no, Mr. 17 President. My good colleague talks about a 18 livable fetus. He just changed the 19 terminology. 20 SENATOR LEICHTER: Living fetus. 21 SENATOR MALTESE: The question 22 is, is it a living fetus? In my mind, it is a 23 living fetus at that point in -- in conception, 24 but it would not be the same as covered by this 25 law because this law speaks of delivery, a 1423 1 living fetus before killing the fetus and 2 completing the delivery, so this is not the same 3 thing as embryos or a partial or a partially 4 developed fetus in the body. 5 This is a fetus that would be 6 completed through the vagina and would be 7 delivered if not for the actions of the 8 abortionist. 9 SENATOR LEICHTER: Thank you very 10 much. I'm going to stay to my promise, Senator 11 Maltese, although I think it might be useful to 12 explore more of these definitions because I 13 think there's an awful lot of misconception and 14 I think that your bill and this drive against 15 what is called partial birth abortion is fueled 16 by misunderstanding and a great deal of 17 emotionalism and comes from people who are 18 generally opposed to abortion and would like to 19 get rid of abortion in any way and every way 20 that they can. But at least you conceded that 21 it -- the fetus' viability is now protected by 22 law, so that's not what you're talking about 23 because that's already in the statute. 24 You're talking about something 25 else, and what you're talking about, as you 1424 1 said, is a living fetus that is outside the womb 2 though it can't live outside the womb, but if 3 it's -- if you extinguish that organism outside 4 the womb, then under your bill, even though that 5 organism, that fetus, cannot survive outside the 6 womb, you want to make this a crime. 7 Senator, what we're talking about 8 here are medical procedures. These are not 9 decisions that women make. These are decisions 10 that doctors make in very hard and very 11 difficult cases, and for you as a legislator and 12 the Legislature to say that this particular 13 procedure is one that we will talk -- that we 14 will say, if you do it it's a crime, I find 15 absolutely no basis for, and again, let's be 16 very clear. We're not talking about a viable 17 child. We're not talking about a fetus that can 18 live outside of the womb. You're talking about 19 a procedure that's taken almost inevitably in 20 order to save the life of the mother or for the 21 health of the mother or because of terrible 22 complications, and this is the only way that the 23 doctor can determine that he can proceed. 24 As I understood you to say, you 25 or your bill does not seek to bar the use of the 1425 1 dilation and evacuation which, as I understand 2 it, is every bit as gruesome, and it's clear 3 what we're talking about is gruesome -- most 4 medical procedures are gruesome. 5 I went to the doctor today; he 6 took some blood from me. I thought that was 7 gruesome, but they are gruesome, and we talk 8 about them and -- but they are medical 9 procedures and dealing with the human body we 10 find that the nature of medical care is such 11 that it may -- it may be bothersome, but the 12 point is, why is it being done and who is doing 13 it? Are you saying these doctors are butchers? 14 These doctors are killers? That's absurd. 15 Senator Meier, you talked about 16 somebody that all of us really revered, Senator 17 Donovan. We knew his passionate views on this 18 issue, and much as we disagreed we honored his 19 view as I honor your view, but you talk about 20 preserving life. We are preserving life when we 21 oppose this bill, when we support abortion. 22 Let's talk about the life of the 23 mother. Let's talk about that woman who has 24 that agonizing decision late in an abortion, I'm 25 sorry, late in the pregnancy when abortion is 1426 1 medically required or she's advised to have it. 2 She doesn't say, Well, fine, I want to have a 3 dilation and extraction or I want to have a 4 dilation and evacuation. She goes to the doctor 5 and they make that most difficult, painful 6 decision, a decision that you and I as men will 7 and obviously are incapable of ever having to 8 make, and then the doctor says, It's late in 9 your pregnancy. This is the way that I have to 10 proceed medically, but next year if Senator 11 Maltese's bill should become law, the doctor 12 would have to say, I can't do what is medically 13 correct and what is medically necessary. 14 Now, as a practical matter, if 15 this bill ever became law, I think it would be 16 declared unconstitutional for points that were 17 made by Senator Oppenheimer and Senator Abate. 18 So I'm not going to repeat those there. I think 19 it's also going to be thrown out because it is 20 so vague, it is so unclear what Senator Maltese 21 is talking about, and he himself, sometimes he's 22 talking about viability, then he's talking about 23 a living fetus that's never been defined and try 24 to distinguish a living fetus from an embryo, 25 and so on. 1427 1 It's so vague you'd never have 2 any prosecution, and Senator Cook rightly 3 pointed out the social harm that would come if 4 this was -- should be law and prosecutors went 5 and looked into -- into records and I think what 6 it ends up and it may be your purpose, Senator 7 Maltese, and I understand that because I know 8 how deeply you are against abortion, and that is 9 really to in any way that you possibly can to 10 limit a woman's right to have an abortion 11 because you feel it is wrong. 12 I think, Senator, that issue has 13 been determined. It was determined in this 14 state in 1970. It was determined by Roe vs. 15 Wade. Fight the moral issues where moral issues 16 ought to be fought, in churches, in synagogues, 17 in mosques, in meetings and on our streets, but 18 leave the law -- leave the law so that a woman 19 can make this decision for herself. We should 20 not make it for her. 21 This is a wrong approach. It's a 22 flawed bill and it really is based on false 23 premises. 24 ACTING PRESIDENT MARCELLINO: 25 Senator Oppenheimer. 1428 1 SENATOR OPPENHEIMER: Thank you 2 very much, Mr. President. 3 I don't want to cover a lot of 4 what has already been said, and I think I'm at 5 the tail end of this. 6 ACTING PRESIDENT MARCELLINO: You 7 wish to speak on the bill, Senator? 8 SENATOR OPPENHEIMER: Yes. 9 ACTING PRESIDENT MARCELLINO: 10 Senator Oppenheimer, on the bill. 11 SENATOR OPPENHEIMER: Let me 12 start by saying, I think most operations, if you 13 were to discuss them, are pretty disgusting. I 14 mean if I were to tell you about my open heart 15 surgery where they stopped my heart and they 16 stopped my lungs and cut my chest open, I mean 17 that's pretty disgusting; so I don't think we 18 should be talking about the blood and gore 19 issue, because I can't think of any operation 20 that's just a tidy, fun thing to discuss. 21 Also I want to dispose of the 22 numbers as quickly as possible in the law 23 because that has been covered. Mind you, we are 24 talking about four-tenths of one hundred 25 percent, so we are talking about not even one 1429 1 half of one percent of all abortions and, as was 2 mentioned, we are only talking about 140 in our 3 state and even then that's still a portion, so 4 we don't even know what portion of them is this 5 particular procedure. But actually, I don't 6 want to focus in on that nor do I want to focus 7 at the moment on the law, because the law is 8 pretty clear. Roe vs. Wade restricts abortions 9 after 24 weeks of pregnancy. New York State, 10 same thing, illegal, same thing in 41 other 11 states in our nation; so unless, of course, the 12 woman's health and life is at risk, so it is the 13 law. So it seems to me that this bill simply 14 says the law is the law and here's the law. 15 Now, what I'd like to look at is 16 the person who has to have this procedure done 17 and try and find out why this person is looking 18 at this procedure, why would any woman choose to 19 have the fetus pulled out of her in this 20 grotesque manner that does require its skull to 21 be crushed, and why in a country where 99 22 percent of our abortions do occur in the first 23 20 weeks, why would anyone want to wait to do it 24 at this juncture? 25 One of the main reasons we know 1430 1 for the crushing of the skull is that the skull 2 has been very enlarged by the water in it and, 3 therefore, it can't pass through the vaginal 4 canal. So the question is, why would they 5 choose this procedure and, of course, the answer 6 is they don't choose the procedure. The doctor 7 chooses the procedure, and the doctor chooses 8 this procedure over another third trimester 9 procedure because he thinks this is going to be 10 best for the health of the mother. 11 We already know infanticide is 12 banned, and it's illegal, and so what I'm saying 13 is the law is pretty clear on this issue, and it 14 is the doctor who is saying to the patient, This 15 is the best thing for your health and this is 16 why I am telling you I want to perform this 17 particular type of abortion in your third 18 trimester. 19 I think that doctors are 20 responsible parties here, not elected 21 officials. They have the Hippocratic oath. 22 They try and take the best care they can of 23 their patient. They could prescribe another 24 type of procedure, but the doctor thinks this is 25 the best procedure at this juncture. It's very, 1431 1 very private and a very painful decision and 2 it's only done when something really has gone 3 horribly wrong. 4 The fact is, and to say that 5 whimsy is simply not to understand what 6 pregnancy means to most women and to understand 7 that you would never carry a child, a fetus, for 8 six or seven months in order to get rid of that 9 fetus. I mean you've already come through a 10 pretty difficult time. There would be no -- and 11 you're very attached to that fetus which is 12 growing in your body, so I can assure you this 13 would only be utilized and really, trust me, 14 this would only be utilized under the most 15 extreme circumstances, and normally it's because 16 the woman really wants to have more children. 17 We had someone up here last year who really very 18 graphically -- and she came with her little one 19 year-old child because she had to have a child 20 taken -- a fetus taken from her and she 21 desperately wanted more children and that was 22 why the doctor said, This is the procedure you 23 have to do if you want to continue to 24 reproduce. 25 So I feel that it would be very 1432 1 foolish and definitely illegal for us to try to 2 censor the kind of options that a doctor has 3 available to him if he wants the most medically 4 sound procedure. This, what you are presenting 5 to us, doesn't ban third term abortions. That 6 already is banned in the law. It just bans this 7 one procedure, and this procedure is only 8 utilized when the doctor feels it is necessary 9 for the health and well-being of the mother. 10 So I'm going to be voting against 11 this bill. 12 ACTING PRESIDENT MARCELLINO: 13 Senator Mendez. 14 SENATOR MENDEZ: Mr. President, I 15 believe that this issue brings the most 16 incredible, incredible rhetoric here. There is 17 so much rhetoric, so much exaggeration, that it 18 really insults the intelligence. This bill will 19 not interfere actually -- will not interfere 20 with an abortion for a woman within the time 21 that Roe vs. Wade stated. 22 In fact, a little while ago I 23 called a friend of mine who is a physician. 24 She's always been -- a young physician, a 25 practicing Catholic, but she's always been for 1433 1 the choice of a woman to decide what to do in 2 cases where she's pregnant and to have the child 3 or the baby or the fetus. 4 She mentioned that, as a 5 physician, one of the things that disturbed her 6 is that we are -- we know that a pregnancy is 7 full term at 40 weeks. However, after 37 weeks 8 then the child is born and is full term as 9 opposed to the full term, and so when we are 10 talking about 24 weeks, it is unfortunate, the 11 problem is that most of the women do not have 12 exact the date and it could go two weeks more or 13 two weeks less, so in instances like this, at 24 14 -- 24 weeks of pregnancy could, in fact, be six 15 and a half months of pregnancy. 16 The rhetoric again. So in terms 17 of viability, I think that that situation 18 clarifies the issue. I am appalled by all the 19 fuss that has been made about partial -- about 20 definition of partial abortion. I just don't 21 see it. Why? What is birth? The whole baby 22 goes through the birth canal, out and everybody 23 is happy. Pass the -- pass the tobacco, the 24 cigar, if it's a boy and I don't know what they 25 give if it's a girl. Probably nothing. 1434 1 So it's partial birth because, 2 for instance, we know that the Supreme Court 3 defined a fetus becomes a person once it goes 4 through the birth canal. In the case of a 5 partial birth, what's abhorrent about it is that 6 the child is delivered, four-fifths of that 7 child is delivered, and that one-fifth that 8 remains is the head where the skull is crushed, 9 as we all know, and the brains are sucked out. 10 There was a big lie that was 11 passed around some time ago that when people 12 raised the question of whether or not the fetus 13 would feel pain, they said that -- they said 14 that we have no evidence to tell us the fetus 15 would feel pain, whereas the anesthesiologists 16 came out and said clearly the fetus will feel 17 pain, because it is not anesthetized. 18 So I think that, Mr. President, 19 it's late in the day. I think that all this 20 rhetoric about thinking, being paranoid and 21 thinking that the right of a woman to be free to 22 have her choice is being -- is being completely 23 diluted, that's bunk. To think that -- there 24 are many, many women and men that are pro-choice 25 in the state of New York and they abhor this 1435 1 procedure. This is not is a perfect bill, we 2 know that. I don't know that we could make this 3 decision. I don't like that, but for perfection 4 I do think it makes an amendment. 5 I think that's bunk, the 6 rhetoric. The bill, that's why it is debunked, 7 to think that it is against Roe vs. Wade, 8 anybody who supports this bill, my God that's 9 the most blatant rhetoric that I have heard in a 10 long, long time. 11 So, Mr. President at six months 12 -- 24 weeks of pregnancy -- I checked today. I 13 went out and called, it's a determination that 14 could be made, in fact, most certainly the 15 issue, and probably the doctors choose this 16 procedure because -- because there is this very 17 -- there is less healing for the woman to go 18 through in terms of what -- excuse me, in terms 19 of -- in terms of the need for this procedure, 20 because the -- the child that might be malformed 21 or whatever, I was told by this physician, a 22 couple of them today that I called, that with 23 today's technology, they know earlier than 24 24 weeks. 25 So I don't think that -- I think 1436 1 that this bill will, in fact, not limit in any 2 sense the right of a woman for -- the right to 3 choose, and if it was to do to a cat or a dog 4 what we'll do to that fetus, we'll all be sent 5 to prison. 6 So it's an abhorrent procedure, 7 Mr. President. It's very uncivilized. As 8 Senator Moynihan says, Senator Moynihan sees it 9 as infanticide. There is a better way. Why not 10 use the better way than go through this kind of 11 very distasteful procedure. 12 I will be voting yes for this 13 bill, Mr. President. I keep believing in free 14 choice, and I am just appalled, still very much 15 appalled at the kind of horrible rhetoric and 16 lies in terms of statistics from one interview 17 and the other. 18 I'm not compromising at all, but 19 one thing that must always stay in place is the 20 right of a woman to choose, but this procedure 21 has to be abolished because it's barbaric and it 22 dehumanizes all of us. 23 Thank you, Mr. President. 24 ACTING PRESIDENT MARCELLINO: 25 Senator Marchi. 1437 1 SENATOR MARCHI: Mr. President, 2 Senator Mendez is distressed about the intensity 3 of the feelings that have prevailed over much of 4 the discussion. Well, I think it's inevitable 5 on a subject like this. There are -- there are 6 strong feelings, honestly advanced, because of 7 the trouble that they produce and in considering 8 their impact on public mores, and if that is 9 done and we all understand it, and we all 10 respect each other, then we also have a 11 responsibility. 12 The statement was made earlier, I 13 believe by Senator Cook, that you don't 14 legislate morals. We do legislate morals, 15 absolutely. If you've heard the expression, 16 mala in se, and mala prohibita, mala in se is - 17 mala prohibita is something that's prohibited, 18 so if I go 29 miles an hour in a 28-mile-per 19 hour zone, I'm violating the law even though I 20 may not have a malicious or bad intent. 21 On the other hand, if I kill, if 22 I steal, if I assault, if I commit any of these 23 crimes that are mala in se, evil of itself, then 24 you have to prove scienter, that you know what 25 you're doing. There is knowledge and intent 1438 1 that is required to be observed. 2 Now, constitutionally, we know of 3 the experience we've had over the decades. We 4 had Chief Justice Taney proclaiming a slave a 5 chattel. That was reversed with experience and 6 time. We've had separate but equal was 7 constitutional, but it was modified in time. I 8 think on this issue, there is a deep seated 9 policy or mores on the subject itself that has 10 gone over many decades, so it is a much stronger 11 conviction that is brought to this, but we have 12 to rivet our attention on the purpose of this 13 bill, and this is to delineate -- to delineate 14 and draw a line across that bar of sand that is 15 distinguishable and tells us when life begins or 16 when it hasn't begun yet so that the normal 17 protections are extended. 18 It's very interesting and George 19 Will picked it out, out of the debates that took 20 place on September 26th when the debate was in 21 progress on the override of President Clinton's 22 veto, although the bill that was -- at least the 23 amendment that was advanced here was a little 24 stricter than the one that Clinton vetoed, and 25 this occurred following the exchange between 1439 1 Senator Rick Santorum who favored override and 2 Senator Ross Feingold of Wisconsin who opposed 3 it, and Santorum -- the Senator from Wisconsin 4 said that this decision should be left up to the 5 mother and the doctor as if there was absolutely 6 no limit that should be placed on the decision 7 that they may make. "My question is this," he 8 said to Feingold. "My question is this: If that 9 baby were delivered breach style and everything 10 was delivered except for the head and, for some 11 reason, that baby's head would slip out, that 12 the baby was completely delivered, would it then 13 still be upon the doctor and the mother to 14 decide whether -- whether to kill that baby?" 15 Feingold -- this is a U.S. 16 Senator in the course of debate: The standard of 17 saying it has to be a determination by a doctor, 18 and I can sympathize with Senator Cook when he 19 described the trauma that that poor mother is 20 going through because the decision basically it 21 was the decision of the doctor, not herself. 22 She carried the baby as someone pointed out for 23 all of those months. 24 "Feingold: The standard is to 25 be the determination by the doctor of health of 1440 1 the mother is sufficiently standard that would 2 apply to that situation, and that would be an 3 adequate standard. 4 "Santorum: That doesn't answer 5 the question. Let us assume the head is 6 accidentally delivered. Would you allow the 7 doctor to kill the baby? 8 "Feingold: That is a question 9 that should be answered by the doctor and the 10 woman who receives the advice from the doctor." 11 I don't know whether she's still 12 with it at that point. Then there was the 13 exchange with Senator Frank Lautenberg, very 14 same question: If the baby was delivered 15 accidentally and the head slipped out, would you 16 allow the doctor -- well, you know, he could 17 have said, well, maybe the head can't slip out 18 and given the physical circumstances of that 19 point of delivery, but Lautenberg said, "Oh, 20 you're making decisions that say a doctor 21 doesn't have to." 22 "So two inches make a difference 23 as to whether you answer that question?" "No," 24 said Lautenberg, "what makes the difference is 25 someone who has the knowledge and intelligence 1441 1 and experience making the decision." 2 So that means if the baby is out 3 completely, Mr. President, out completely, we're 4 not talking about a border line, we're not 5 talking about two inches of the head, we're 6 talking about the completeness of it. 7 During the course of debate, two 8 knowledgeable Senators -- I've met Mr. 9 Lautenberg; he's a distinguished member from New 10 Jersey -- say yes, it's the decision of the 11 doctor to make up his mind after they're born. 12 So when -- when Senator Meier brought up the 13 question of, well, wait a minute, when does life 14 begin? When does it have all the protections? 15 Well, the protection is go with the doctor. At 16 some point I think it has to be defined and if 17 it is defined that woman would not be put in 18 that anguished -- anguishing situation so 19 accurately described by Senator Cook, and the 20 purpose of the legislation introduced by Senator 21 Maltese with exquisite precision would apply. 22 My feeling is that that situation 23 would probably not apply -- would not develop if 24 we had concrete policy which we didn't have 25 today. We don't have it, because there are 1442 1 important members of the United States Senate 2 who are already saying that decision rests with 3 the doctor even if the baby is born and 4 delivered. 5 So it's -- it does require some 6 response, not on the basic question that we're 7 talking about, but when does life begin? And the 8 directions that are suggested and plainly in 9 view is the reason why we are -- we have this 10 bill before us this afternoon. 11 ACTING PRESIDENT MARCELLINO: Is 12 there any other Senator wishing to be heard on 13 this issue? 14 Read the last section, please. 15 SENATOR PATERSON: Slow roll 16 call, please. 17 ACTING PRESIDENT MARCELLINO: 18 Slow roll call is requested. Do we see five 19 Senators standing? I don't see them. See two, 20 three, four and a half. Slow roll call is 21 requested. Call the roll slowly. Can we ring 22 the bells outside so everyone outside can hear 23 the bell. Read the last section first before we 24 call the roll. 25 THE SECRETARY: Section 3. This 1443 1 act shall take effect on the 1st day of 2 November. 3 Senator Abate. 4 SENATOR ABATE: No. 5 THE SECRETARY: Senator Alesi. 6 SENATOR ALESI: Yes. 7 THE SECRETARY: Senator Breslin. 8 SENATOR BRESLIN: Just to explain 9 my vote. 10 ACTING PRESIDENT MARCELLINO: 11 Senator Breslin, to explain his vote. 12 SENATOR BRESLIN: Robert Drinan 13 from Georgetown so aptly explained that this 14 procedure does not eliminate any abortions and 15 as much as I find this procedure abhorrent - 16 ACTING PRESIDENT MARCELLINO: 17 Excuse me, Senator. Can we have some silence 18 and quiet in the room, please? It's difficult 19 enough to hear. Senator, I apologize. 20 SENATOR BRESLIN: -- find the 21 process abhorrent, I'm not a medical doctor and 22 I'm not a spiritual leader. That spiritual 23 leader, with the doctor and the woman, should 24 make that decision and this bill, if it was 25 successful, should include the serious health of 1444 1 the mother and, therefore, I vote against this 2 bill. 3 ACTING PRESIDENT MARCELLINO: 4 Continue the roll call. 5 THE SECRETARY: Senator Bruno. 6 (Negative indication. ) 7 THE SECRETARY: Senator Connor. 8 (Negative indication. ) 9 Senator Cook. 10 SENATOR COOK: No. 11 THE SECRETARY: Senator 12 DeFrancisco. 13 SENATOR DeFRANCISCO: Explain my 14 vote. 15 ACTING PRESIDENT MARCELLINO: 16 Senator DeFrancisco, to explain his vote. 17 SENATOR DeFRANCISCO: I'm going 18 to vote in the affirmative and I just want to 19 explain a couple of things. We've heard a lot 20 of statistics on the floor today and from the 21 individual who all of a sudden changed his mind 22 as to what the true facts were that generated 23 debate several months ago, indicated that his 24 statistics were wrong and he lied through his 25 teeth. 1445 1 Where anybody in this chamber 2 were to get a reliable set of statistics is 3 beyond me. How you can say there are only 800 4 of these are performed or that they're only 5 performed -- only performed when we don't have 6 Gerber babies is beyond imagination and anybody 7 that would possibly believe those statistics I 8 think are not being true to themselves. You can 9 get statistics that could say anything. 10 The issue in this bill is the 11 procedure is abhorrent at this stage of 12 pregnancy in any civilized society, number one, 13 and number two, whether what is being aborted is 14 the Gerber baby or the most deformed child, we 15 don't have the right to make a decision that 16 only the fair survive, only the fair survive and 17 it is appalling to me to hear that argument on 18 this floor. 19 We have a day that Senator Libous 20 puts on for people with disabilities, 21 legislation to help people with disabilities. 22 To come to this floor and suggest that this is 23 O.K. because it is only people that are not 24 going to be individuals who are in full capacity 25 when they're born, then that's O.K. is totally 1446 1 appalling. 2 The procedure is wrong. It's 3 morally wrong. We should make it legally 4 wrong. 5 ACTING PRESIDENT MARCELLINO: 6 Continue the roll call, please. 7 SENATOR DeFRANCISCO: Yes. 8 THE SECRETARY: Senator 9 Dollinger. 10 SENATOR DOLLINGER: Mr. 11 President, to explain my vote. 12 ACTING PRESIDENT MARCELLINO: 13 Senator Dollinger, to explain his vote. 14 SENATOR DOLLINGER: I've listened 15 to a lot of this debate, tried to syphon it 16 through my mind as a parent and as a 17 grandparent. I have a 15-year-old daughter, I 18 have a 17-year-old son and a 12-year-old son and 19 I make this decision today for them and I make 20 it for my grandchildren that I hope some day to 21 have, and it seems to me that this is a very 22 personal choice, a terrible, horrible choice, a 23 horrible, grotesque procedure that nobody 24 likes. Nobody on this floor has said they like 25 it. But it seems to me that what we have to 1447 1 look at is who gets to make that choice. 2 We have the 61 people in this 3 room, will we use our moral judgment to impose 4 it on my grandchildren and my children? I don't 5 think that's the right thing to do. I go back 6 to what I said about Senator Bruno. I hope that 7 some day, if they face that difficult choice, 8 they will make the right moral judgment and more 9 importantly we will respect that difficult, 10 difficult choice. 11 I don't want my children to have 12 to choose between their lives and the life of 13 their child or in serious adverse health 14 consequences to them and the life of their 15 child. That's what this is all about. I stand 16 here today as a father, and I hope some day a 17 grandfather, and I leave that choice to them, to 18 their husbands and wives and to their own 19 conscience. 20 I vote no. 21 ACTING PRESIDENT MARCELLINO: 22 Continue the roll call, please. 23 THE SECRETARY: Senator Farley. 24 SENATOR FARLEY: I vote aye. 25 THE SECRETARY: Senator Gentile. 1448 1 SENATOR GENTILE: Yes. 2 THE SECRETARY: Senator Gold 3 excused. 4 Senator Gonzalez. 5 SENATOR GONZALEZ: Yes. 6 THE SECRETARY: Senator Goodman. 7 SENATOR GOODMAN: No. 8 THE SECRETARY: Senator Hannon. 9 SENATOR HANNON: Yes. 10 THE SECRETARY: Senator Hoffmann 11 excused. 12 Senator Holland voting in the 13 affirmative earlier. 14 Senator Johnson. 15 SENATOR JOHNSON: Aye. 16 THE SECRETARY: Senator Kruger. 17 SENATOR KRUGER: No. 18 THE SECRETARY: Senator Kuhl. 19 SENATOR KUHL: Aye. 20 THE SECRETARY: Senator Lachman. 21 SENATOR LACHMAN: Yes. 22 THE SECRETARY: Senator Lack. 23 SENATOR LACK: Yes. 24 THE SECRETARY: Senator Larkin. 25 SENATOR LARKIN: Aye. 1449 1 THE SECRETARY: Senator LaValle. 2 SENATOR LAVALLE: Aye. 3 THE SECRETARY: Senator Leibell. 4 (There was no response. ) 5 Senator Leichter. 6 SENATOR LEICHTER: No. 7 THE SECRETARY: Senator Levy. 8 SENATOR LEVY: Aye. 9 THE SECRETARY: Senator Libous. 10 SENATOR LIBOUS: Aye. 11 THE SECRETARY: Senator Maltese. 12 SENATOR MALTESE: Mr. President, 13 please, to explain my vote. 14 ACTING PRESIDENT MARCELLINO: 15 Senator Maltese, to explain his vote. 16 SENATOR MALTESE: Mr. President, 17 I realize that even though many of the feelings 18 expressed today are very heartfelt and a 19 question of conscience, at the same time some of 20 the misstatements not only of the gentleman, Ron 21 Fitzsimmons, but of so many people can't simply 22 be explained away. 23 The statements that partial birth 24 abortions are procedures that are only used in 25 life endangerment or grave fetal disorder cases 1450 1 cannot be reconciled with the facts. In 1992, 2 Dr. Haskell's instructional paper, he himself, 3 this architect, this person who created this 4 gruesome procedure, wrote that he routinely 5 performs this procedure on all patients, 20 6 through 24 weeks, four and a half to five and a 7 half months, and after the controversy arose in 8 the American Medical News, the official 9 newspaper of the AMA, they conducted a tape 10 recorded interview where he -- concerning this 11 specific abortion method -- indicated, and I'll 12 be quite frank and exactly quote: "Most of my 13 abortions are elective in that 20- to 24-week 14 range. In my particular case, probably 20 15 percent of these procedures are for genetic 16 reasons, and the other 80 percent are purely 17 elective." 18 And we can't equate, as some of 19 my good colleagues have indicated, a gruesome 20 procedure, a bloody procedure with this that is 21 so closely akin to murder, and it does no good 22 and serves no useful purpose to question the 23 motives of some of our people who have either 24 had a long-standing reverence for life and are 25 pro-life or for those many, many Democrats, 1451 1 scores and scores of them elected officials who, 2 despite being pro-choice are repelled by only 3 this specific procedure. 4 Mr. President, this is as close 5 to murder as you can get. Mr. President, the 6 fact that two distinguished United States 7 Senators in the heat of debate could not 8 differentiate between taking a life of a living 9 human being and an abortion procedure should 10 give us great pause as to the slippery road that 11 we now traverse. 12 Mr. President, I vote aye. 13 THE SECRETARY: Senator 14 Marcellino. 15 SENATOR MARCELLINO: Aye. 16 THE SECRETARY: Senator Marchi. 17 SENATOR MARCHI: Aye. 18 THE SECRETARY: Senator 19 Markowitz. 20 SENATOR MARKOWITZ: No. 21 THE SECRETARY: Senator Maziarz. 22 SENATOR MAZIARZ: Aye. 23 THE SECRETARY: Senator Meier. 24 SENATOR MEIER: Aye. 25 THE SECRETARY: Senator Mendez. 1452 1 SENATOR MENDEZ: Yes. 2 THE SECRETARY: Senator 3 Montgomery. 4 SENATOR MONTGOMERY: No. 5 THE SECRETARY: Senator Nanula 6 voting in the negative earlier today. 7 Senator Nozzolio. 8 SENATOR NOZZOLIO: Aye. 9 THE SECRETARY: Senator Onorato. 10 SENATOR ONORATO: Aye. 11 THE SECRETARY: Senator 12 Oppenheimer. 13 SENATOR OPPENHEIMER: Nay. 14 THE SECRETARY: Senator Padavan. 15 SENATOR PADAVAN: Yes. 16 THE SECRETARY: Senator 17 Paterson. 18 SENATOR PATERSON: No. 19 THE SECRETARY: Senator Present. 20 SENATOR PRESENT: Aye. 21 THE SECRETARY: Senator Rath. 22 SENATOR RATH: Aye. 23 THE SECRETARY: Senator Rosado. 24 SENATOR ROSADO: Aye. 25 THE SECRETARY: Senator Saland 1453 1 voting in the affirmative earlier today. 2 Senator Sampson. 3 SENATOR SAMPSON: No. 4 THE SECRETARY: Senator 5 Santiago. 6 SENATOR SANTIAGO: No. 7 THE SECRETARY: Senator 8 Seabrook. 9 SENATOR SEABROOK: No. 10 THE SECRETARY: Senator Seward. 11 SENATOR SEWARD: Mr. President, 12 to explain my vote. 13 ACTING PRESIDENT MARCELLINO: 14 Senator Seward, to explain his vote. 15 SENATOR SEWARD: Mr. President, 16 my colleagues, I have generally viewed 17 abortion-related issues as ones that most 18 appropriately should be decided between a woman, 19 her physician, or anyone else whom she would 20 choose to consult, and I have a record in this 21 house of voting according to those long held 22 views. 23 But I do not consider that 24 support of this bill that's with us today could 25 be in conflict with my stated views. The issue 1454 1 addressed in the bill that's before us today is 2 one that deals with a procedure performed late 3 in a pregnancy, a partial birth abortion, on an 4 elective basis, and I struggle to accept the 5 almost complete delivery of a live fetus and the 6 subsequent termination of that life when there 7 is no direct threat to the mother's life. 8 Therefore, Mr. President, I vote 9 aye. 10 ACTING PRESIDENT MARCELLINO: 11 Continue the roll call. 12 THE SECRETARY: Senator Skelos. 13 SENATOR SKELOS: Yes. 14 THE SECRETARY: Senator Smith. 15 SENATOR SMITH: Mr. President, to 16 explain my vote. 17 ACTING PRESIDENT MARCELLINO: 18 Senator Smith, to explain her vote. 19 SENATOR SMITH: Thank you, Mr. 20 President. 21 After careful consultation with 22 the one person that I feel should be able to 23 make a decision on this issue, my gynecologist, 24 I vote no. 25 THE SECRETARY: Senator Spano. 1455 1 (Negative indication.) 2 THE SECRETARY: No. 3 Senator Stachowski. 4 SENATOR STACHOWSKI: Yes. 5 THE SECRETARY: Senator 6 Stafford. 7 SENATOR STAFFORD: Aye. 8 THE SECRETARY: Senator 9 Stavisky. 10 SENATOR STAVISKY: Aye. 11 THE SECRETARY: Senator Trunzo. 12 SENATOR TRUNZO: Yes. 13 THE SECRETARY: Senator Tully 14 voting in the affirmative earlier today. 15 Senator Velella. 16 SENATOR VELELLA: Yes. 17 THE SECRETARY: Senator Volker. 18 SENATOR VOLKER: Yes. 19 THE SECRETARY: Senator Waldon. 20 (Negative indication. ) 21 THE SECRETARY: No. 22 Senator Wright. 23 SENATOR WRIGHT: Aye. 24 ACTING PRESIDENT MARCELLINO: 25 Call the absentees, please. 1456 1 THE SECRETARY: Senator Leibell. 2 SENATOR LEIBELL: Aye. 3 THE SECRETARY: Ayes 40, nays 4 19. 5 ACTING PRESIDENT MARCELLINO: The 6 bill is passed. 7 Senator Skelos. Senator Skelos. 8 SENATOR SKELOS: Will you 9 recognize Senator Paterson, please. 10 ACTING PRESIDENT MARCELLINO: 11 Senator Paterson. 12 SENATOR PATERSON: Mr. President, 13 does the Secretary have record of getting a 14 message from the Assembly about a joint session 15 of the Legislature tomorrow in the Assembly 16 Chamber? 17 ACTING PRESIDENT MARCELLINO: We 18 are told that -- Senator Paterson, Senator 19 Paterson. The Chair is told that there is an 20 Assembly resolution advising us and inviting us 21 to attend. 22 SENATOR PATERSON: This is 23 regarding the confirmation of the Regents, Mr. 24 President, and I just wanted to make sure that 25 everybody got an invitation. 1457 1 SENATOR SKELOS: Thank you very 2 much. 3 Is there any housekeeping at the 4 desk? 5 SENATOR LEICHTER: Mr. 6 President. 7 ACTING PRESIDENT MARCELLINO: 8 Senator Leichter. 9 SENATOR LEICHTER: Mr. President, 10 is the communication that Senator Paterson was 11 referring to, is this regarding a constitutional 12 duty that's recognized in the New York State 13 Constitution? 14 SENATOR SKELOS: The answer is, 15 there is a message at the desk. 16 Senator Velella, please. 17 SENATOR VELELLA: Mr. President, 18 on behalf of Senator Mendez, I move that the 19 following bill be discharged from its respective 20 committee and the enacting clause be stricken: 21 Senate Bill 2142. 22 ACTING PRESIDENT MARCELLINO: 23 Shall be done. 24 Senator Volker. 25 SENATOR VOLKER: Mr. President, I 1458 1 wish to call up my bill, Senate Print Number 2 270, recalled from the Assembly which is now at 3 the desk. 4 ACTING PRESIDENT MARCELLINO: 5 Secretary will read. 6 THE SECRETARY: Calendar Number 7 12, by Senator Volker, Senate Print 270, an act 8 to amend the Penal Law. 9 SENATOR VOLKER: Mr. President, I 10 now move to reconsider the vote by which this 11 bill was passed. 12 ACTING PRESIDENT MARCELLINO: 13 Call the roll on reconsideration, please. 14 (The Secretary called the roll on 15 reconsideration. ) 16 SENATOR VOLKER: Mr. President, I 17 now offer the following amendments. 18 ACTING PRESIDENT MARCELLINO: 19 Amendments are received and adopted. 20 Senator Skelos. 21 SENATOR SKELOS: Mr. President, 22 there being no further business, I move we 23 adjourn until Tuesday, March 11th at 3:00 p.m. 24 sharp. 25 ACTING PRESIDENT MARCELLINO: 1459 1 There being no housekeeping before the Senate, 2 no further business, we move to adjourn until 3 Tuesday, March 11th, at 3:00 p.m. sharp. 4 (Whereupon at 6:20 p.m., the 5 Senate adjourned.) 6 7 8 9 10