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STATE OF ILLINOIS

92ND GENERAL ASSEMBLY

REGULAR SESSION

SENATE TRANSCRIPT

20th Legislative Day March 30, 2001

law that allows for the court to still have discretion.

PRESIDING OFFICER: (SENATOR KARPIEL)

Further discussion? If not, the question is, shall Senate Bill

1080 pass. Those in favor will vote Aye. Opposed, vote Nay. The

voting is open. Have all voted who wish? Have all voted who

wish? Have all voted who wish? Take the record, Madam Secretary.

On this question, there are 53 voting Aye, none voting Nay, none

voting Present. And Senate Bill 1080, having received the -- the

required constitutional majority, is declared passed. Senate Bill

1081. Senator Clayborne. Senate Bill 1089. Senator Burzynski.

Senate Bill 1093. Senator O'Malley. Read the bill, Madam

Secretary.

ACTING SECRETARY HAWKER:

Senate Bill 1093.

(Secretary reads title of bill)

3rd Reading of the bill.

PRESIDING OFFICER: (SENATOR KARPIEL)

Senator O'Malley.

SENATOR O'MALLEY:

Thank you, Madam President, Ladies and Gentlemen of the

Senate. Senate Bill 1093, as amended, provides that no abortion

procedure which, in the medical judgment of the attending

physician, has a reasonable likelihood of resulting in a live born

child shall be undertaken unless there is in attendance a

physician other than the physician performing or inducing the

abortion who shall assess the child's viability and provide

medical care for the child. The bill further provides that if

there is a medical emergency, a physician inducing or performing

an abortion which results in a live born child shall provide for

the soonest practical attendance of a physician other than the

physician performing or inducing the abortion to immediately

assess the child's viability and provide medical care for the

child. The bill additionally provides that a live child born as a

result of an -- of -- of an abortion procedure shall be fully

recognized as a human person and accorded immediate protection

under the law. All reasonable measures consistent with good

medical practice, including the compilation of appropriate medical

records, shall be taken to preserve the life and health of the

child. I'd be pleased to answer any questions there may be.

PRESIDING OFFICER: (SENATOR KARPIEL)

Any discussion? Senator Obama.

SENATOR OBAMA:

Thank you, Madam President. Will the sponsor yield for

questions?

PRESIDING OFFICER: (SENATOR KARPIEL)

He indicates he will.

SENATOR OBAMA:

This bill was fairly extensively debated in the Judiciary

Committee, and so I won't belabor the issue. I do want to just

make sure that everybody in the Senate knows what this bill is

about, as I understand it. Senator O'Malley, the testimony during

the committee indicated that one of the key concerns was -- is

that there was a method of abortion, an induced abortion, where

the -- the fetus or child, as -- as some might describe it, is

still temporarily alive outside the womb. And one of the concerns

that came out in the testimony was the fact that they were not

being properly cared for during that brief period of time that

they were still living. Is that correct? Is that an accurate

sort of description of one of the key concerns in the bill?

PRESIDING OFFICER: (SENATOR KARPIEL)

Senator O'Malley.

SENATOR O'MALLEY:

Senator Obama, it is certainly a key concern that the -- the

way children are treated following their birth under these

circumstances has been reported to be, without question, in my

opinion, less than humane, and so this bill suggests that

appropriate steps be taken to treat that baby as a -- a citizen of

the United States and afforded all the rights and protections it

deserves under the Constitution of the United States.

PRESIDING OFFICER: (SENATOR KARPIEL)

Senator Obama.

SENATOR OBAMA:

Well, it turned out -- that during the testimony a number of

members who are typically in favor of a woman's right to choose an

abortion were actually sympathetic to some of the concerns that

your -- you raised and that were raised by witnesses in the

testimony. And there was some suggestion that we might be able to

craft something that might meet constitutional muster with respect

to caring for fetuses or children who were delivered in this

fashion. Unfortunately, this bill goes a little bit further, and

so I just want to suggest, not that I think it'll make too much

difference with respect to how we vote, that this is probably not

going to survive constitutional scrutiny. Number one, whenever we

define a previable fetus as a person that is protected by the

equal protection clause or the other elements in the Constitution,

what we're really saying is, in fact, that they are persons that

are entitled to the kinds of protections that would be provided to

a -- a child, a nine-month-old -- child that was delivered to

term. That determination then, essentially, if it was accepted by

a court, would forbid abortions to take place. I mean, it -- it

would essentially bar abortions, because the equal protection

clause does not allow somebody to kill a child, and if this is a

child, then this would be an antiabortion statute. For that

purpose, I think it would probably be found unconstitutional. The

second reason that it would probably be found unconstitutional is

that this essentially says that a doctor is required to provide

treatment to a previable child, or fetus, however way you want to

describe it. Viability is the line that has been drawn by the

Supreme Court to determine whether or not an abortion can or

cannot take place. And if we're placing a burden on the doctor

that says you have to keep alive even a previable child as long as

possible and give them as much medical attention as -- as is

necessary to try to keep that child alive, then we're probably

crossing the line in terms of unconstitutionality. Now, as I said

before, this probably won't make any difference. I recall the

last time we had a debate about abortion, we passed a bill out of

here. I suggested to Members of the Judiciary Committee that it

was unconstitutional and it would be struck down by the Seventh

Circuit. It was. I recognize this is a passionate issue, and so I

-- I won't, as I said, belabor the point. I think it's important

to recognize though that this is an area where potentially we

might have compromised and -- and arrived at a bill that dealt

with the narrow concerns about how a -- a previable fetus or child

was treated by a hospital. We decided not to do that. We're

going much further than that in this bill. As a consequence, I

think that we will probably end up in court once again, as we

often do, on this issue. And as a consequence, I'll be voting

Present.

PRESIDING OFFICER: (SENATOR KARPIEL)

Further discussion? If not, Senator O'Malley, to close.

SENATOR O'MALLEY:

Thank you, Madam President and Ladies and Gentlemen of the

Senate. The one thing the previous speaker did say is that this

is a passionate issue. And -- however, I don't think it's

challengeable on constitutional grounds in the manner that was

described. This is essentially very simple. The Constitution

does not say that a child born must be viable in order to live and

be accorded the rights of citizenship. It simply says it must be

born. And a child who survives birth is a U.S. citizen, and we

need to do everything we can here in the State of Illinois and,

frankly, in the other forty-nine states and in the halls of

Washington, D.C., to make sure that we secure and protect those

rights. So if this legislation is designed to clarify, resecure

and reaffirm the rights that are entitled to a child born in

America, so be it, and it is constitutional. I would appreciate

your support