Date: January 11, 2006
Senator: Coburn
Topic:
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SPECTER: Senator Coburn?
COBURN: Well, Mr. Chairman, I'll give you some time back, but it won't be quite that much. Thank you.
I have a couple of charts I want to show just to clarify the record.
COBURN: I want to, again, make sure that everybody knows that in 1985 there's a quote in the Princeton packet that the campaign to eliminate the Army ROTC program, and what was perceived as a decline of Princeton athletics.
It was also known that this CAP program was soliciting through mail membership and support.
There also was a disclaimer in this that I want to make sure is in the record as well. And it says: "The appearance of an article in Prospect does not necessarily represent an endorsement of the author's belief by the Concerned Alumni of Princeton. CAP has never taken a formal stand on co-education at Princeton or elsewhere." Thank you.
And I'm a member of the American Medical Association. But I will tell you, I don't agree with everything that's written in JAMA. As a matter of fact, I take great, great umbrage at some of the things that are written there and some of the ideas that are put forward that aren't done well, that go counter to good medicine.
But that doesn't mean I endorse, because I'm a member of the American Medical Association, because I'm a member of JAMA, doesn't mean that I endorse everything that that organization or that magazine might put out.
And so I think Senator Graham had it right. This idea of association with anything means you take it all, whether in fact that's the truth or not, and that's not good work on this committee and it's not truthful and it's not intellectually honest.
I want to spend just a few minutes going back. You had mentioned earlier about one of the things the court didn't do is they can't take necessarily all the technology or all the science and how it applies to things, and that things, in fact, might change.
And I mentioned earlier this morning in our questions about the Stenberg case and Doe v. Bolton and this concept of health -- one of the things as a practicing physician who's delivered 4,000 babies, who also had a grandmother who came into this world as a result of rape -- so I have a special view on the consequences of rape -- this concept of health, I'm interested in your thought on it, because one of the things I think about it is the health of the woman when -- at the time or later -- because of what we do know about the consequences of Roe v. Wade and the actual act of abortion and the impact that that has on a woman's health?
COBURN: For example, you're twice as likely to commit suicide if you have had an abortion -- now, a study, a longitudinal shows that -- twice as likely to have alcohol or drug dependency if you have had an abortion, about 60 percent more likely to have a pre-term delivery.
So, as the court looks at that and also looks at the fact, this health question, then also looks at health and then also looks at liability -- when I was in medical school, it was unusual for a pre- term infant at 28, 29, 30 weeks to survive.
And we routinely see infants at 24 weeks that survive. In matter of fact, I have a nephew, 24, 25 week delivery. The only deficit he has is he's blind in one eye. He weighed one pound, two ounces when he was born.
And so technology means something. And so the fact that we weren't not going to commit to give a blanket answer -- and I'm convinced that the only way you'll get certain votes off this committee and out of this Senate is if you were to write a blood oath that there's nothing that could interrupt an type of abortion on demand at any time.
So my question to you is: How is that any court should take into consideration these questions about technology and science and how they impact the law?
And the other thing I'd add to that -- and I mentioned in my opening statement -- is we consider somebody alive when they have a heartbeat and brainwave and we consider them dead when they don't have those things.
How is it that the court can't look at that science and say, we have a heartbeat and a brainwave? We know when viability is now, outside of the womb.
Should those factors play in the decision of the court, or should we just blanket stare decisis and say Roe and Casey, it's all settled and we're not going to look at the science? Should that play a role?
ALITO: Well, Senator, I guess I would answer that by saying that you would look at the factors that are relevant under the stare decisis analysis and ask the role of the data that you have outlined and ask how that would be involved in the factors that go into the stare decisis analysis.
ALITO: And then if you get past that to the second step, of course, you would ask the same question -- what bearing that information has on the resolution of the question at that step.
Just speaking in general, not talking about abortion at all, in general, in deciding any legal issue, I think courts should be receptive to any information that has a bearing on the decisions that they are making.
There's no such thing in general as bad knowledge, and I think that is relevant to the decision-making process that judges go through. They should be receptive to information that is relevant, that the parties want to bring to their attention, and then decide how it figures in the application of the legal standards that they're applying in the particular case.
COBURN: Let me ask you another question. And I want you to be careful how you answer this, because I think at some time this probably will come before you, and I'm not trying to get you to pin down.
If I'm driving a car today and I hit a pregnant woman who has a 36-, 37-week fetus, and the woman survives and the fetus dies, I can be held accountable for the death of that fetus. And by law we value that as a life -- unborn but a life.
If I say -- I'm the pregnant woman -- I want to terminate that fetus at 37 weeks, there's nothing in this country today that keeps me from doing that, even though on one side of the law we say it's a life.
How did we get there to where it's not life or it is a life? Tell me. Can somebody logically explain that to the American people that how, if I kill it, it was a life, but if I choose to take it voluntarily, it's not a life?
Can anybody logically explain how we got there and what the consequences going down the road are going to be for us as a nation when we have laws that send two different signals about the same individual?
ALITO: Well, let me try to just explain my understanding of where the law rests on those two questions.
The first is a question of tort law or maybe it's a question of -- well, it's a question of tort law -- and decisions are made by state legislatures or maybe, in some instances, it comes about through the development of common law through the state courts regarding the scope of state tort law.
And a tort can be created that applies in the situation of the auto accident you mentioned, or a legislature may choose to structure the tort law differently.
But that's been a decision that's been left for the state legislatures to decide, and they have taken a variety of approaches in doing that, I believe.
The second, of course, is the issue of Roe and the cases that follow after it. And those are based on an interpretation of the Fifth Amendment and the 14th Amendment of the Constitution, and they are not the result of legislative decisions made at the state level or at the federal level.
COBURN: Can you rationalize any way of a logical explanation of how that could be, though? I mean, if you had somebody that wasn't from this world, and they came in and they said, "Oh yes, if you kill it, it was alive -- if you accidentally kill it, it was alive; if you choose to kill it, it wasn't."
I'm having trouble getting my mind around that concept that there's any logic there. I just wondered if you were.
ALITO: Well, the answer is that the tort situation has been left for its development under state law. And states have taken a variety of approaches expressing the values that the legislature believes should be embodied in tort law.
And in the abortion context, of course, states have laws regulating abortion and they are free to enact whatever statutes they want on the subject as long as they comply with the Constitution.
ALITO: But we have decisions of the Supreme Court that establish constitutional requirements in the area. I think that's the explanation. The decisions are made by different bodies.
COBURN: One other comment. For the American public to know, there's 1.31 million abortions in the U.S. each year. This is from the Alan Guttmacher Institute. And it's very interesting for us to know why people have an abortion, why women choose to terminate their unborn children.
Twenty-one percent say they can't afford a baby. Twenty-one percent say they don't want the responsibility. Sixteen percent say the baby could change their lives. Twelve percent have problems with relationship or want to avoid single parenthood. Eleven percent are not mature enough or don't want to have more children. Three percent have a possible fetal health problem of which two-thirds are Downs Syndrome or spina bifida. One percent resulted from rape or incest. One percent the husband or the partner didn't want them to have a baby. And one percent is they didn't want anybody else to know somebody had sex with them.
And of that, 48 percent of the women who have an abortion in this country have already had one previously.
So, in fact, our country, through the auspices of an activist court, in my opinion, has moved to use abortion not as a health issue, but as a convenience issue. And we have done great damage because we have a schizophrenic policy.
And my hope, Judge, is that science and technology, and recognition of life on some parameter ought to be applied. And my hope is, as we get to the court, is that we have common sense. And it doesn't have to be my way. You know, it could be Senator Schumer's or Senator Durbin's view.
You know, the fact is there's legitimate disagreement about rape and incest and medical malformations and all these other things.
But we need in this country to have the confidence in the Supreme Court restored. And I think it's taken a hit just like this institution has taken a hit, because it's making decisions that aren't based on fact and good law, but it's making decisions like we have made decisions -- based on expediency.
And my hope is that you'll be confirmed. I think you have great character and great integrity. And integrity, I think, is the number one issue, not your legal mind, your heart and your soul and how you view honesty and straightforwardness. And that the result will be that we'll see some leadership to put science and fact and combine it with the law and restore the confidence in the Supreme Court in this country.
I asked Judge Roberts, I asked him, "Why do you think we've lost it, some of the confidence of the court?"
COBURN: And he said, "Because we've gotten into areas of policy and not law." And I tend to agree with him. And it's my hope that you would agree with that as well.
I yield back the balance of my time.
SPECTER: Thank you very much, Senator Coburn.
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