Executive Session

EXECUTIVE SESSION

NOMINATION OF JANICE ROGERS BROWN TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA--Continued

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Mr DURBIN. Mr. President, I rise today to note National Hunger Awareness Day.

I am meeting today with 35 people here from Illinois who came to Washington to remind us that hunger is not a Democratic or Republican issue.

Basic sustenance ought to be a guarantee in a civilized society, not a gamble.

If children--or adults--are hungry in America, that's a problem for all of us. And it is a problem we can do something about.

For instance, we know that Federal nutrition programs work. WIC, food stamps, school lnch and breakfast programs, and other Federal nutrition programs are reaching record numbers of Americans today, and making lives better.

The problem is we are not reaching enough people. There are still too many parents in this country who skip meals because there is not enough money in the family food budget for them and their children to eat every night.

There are still too many babies and toddlers in America who are not getting the nutrition their minds and bodies need to develop to their fullest potential. There are still too many seniors and children who go to bed hungry.

There are 36 million Americans who are hungry or at risk of hunger. In the richest Nation in the history of the world, that is unacceptable.

Last week, I joined with several of my Senate colleagues to introduce the Hunger-Free Communities Act.

The bill is designed to promote local collaboration in the fight against hunger. But it also reminds us that we as a country are committed to ending hunger. We know how. We need to muster the political will.

We started this week by challenging our own offices to participate in a Senate food drive. I commend Senators LINCOLN, SMITH, and DOLE for their help in collecting food that will be donated to the Capitol Area Community Food Bank.

I look forward to working with people in the anti-hunger community and with my colleagues to eliminate domestic hunger in our lifetime.

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BIRTH CONTROL

Mr. DURBIN. Mr. President, today is a very important day in American history. On June 7, 1965, 40 years ago today, the U.S. Supreme Court struck down a Connecticut law making it a crime to use or prescribe any form of birth control or even to give advice about birth control. Forty years ago it was a crime to prescribe any form of birth control in the State of Connecticut, or to use it, or to give advice about it: 40 years ago.

It is hard to imagine, isn't it? Even married couples in Connecticut could be convicted of a crime, fined, and sentenced to up to a year in prison for using forms of birth control. Doctors who prescribed contraceptives, pharmacists who filled the prescriptions, even people who simply provided advice about birth control, could be charged with aiding and abetting a crime, fined, and sent to prison for up to a year.

But 40 years ago today, just across the street, by a vote of 7 to 2, the Supreme Court struck down the Connecticut law. The case was called Griswold v. Connecticut, a famous case. The Court's ruling held for the first time in our Nation's history that the Constitution guarantees all Americans the right to privacy in family planning decisions. Such decisions were so intensely personal, their consequences so profound, the Court said the State, the Government, may not intrude, it may not impose its will upon others.

You can search our Constitution, every single word of it, as short a document as it is, and never find the word ``privacy'' in this document. Yet the Supreme Court said they believed the concept of our privacy was built into our rights, our individual rights and liberties.

I referred briefly to this landmark ruling earlier today in remarks opposing the nomination of Janice Rogers Brown to serve as a Federal circuit court judge in the District of Columbia. That nomination is before the Senate at this moment. It is for a lifetime appointment. Janice Rogers Brown is a justice in the California Supreme Court who has stated explicitly her own personal philosophy, her own judicial philosophy, and it runs counter to many of the concepts and values I will be discussing as part of this commemoration of the Griswold decision.

I am glad there is a bipartisan resolution sponsored by my colleague from Illinois, Senator BARACK OBAMA, and Senator OLYMPIA SNOWE of Maine, calling on the Senate to celebrate the 40th anniversary of the Griswold decision. In that resolution, my two colleagues, one Democrat, one Republican, ask the Senate to renew its commitment to make sure that all women, including poor women, have access to affordable, reliable, safe family planning.

Right at the heart of the Griswold decision, the right to make the most intimate personal decisions about our lives in private, without Government interference, we find the foundation for future decisions that expanded reproductive rights. In 1972, in Eisenstadt v. Baird, the Supreme Court granted unmarried people in America access to family planning and contraception--1972--and, in 1973, the famous case, Roe v. Wade, a 7-to-2 decision by the Supreme Court said that women have a fundamental right to decide whether to continue a pregnancy, depending on the state of the pregnancy. Supreme Court Justice Harry Blackmun was nominated to serve on the Supreme Court by Richard Nixon--obviously a Republican President. Justice Blackmun had been on the Court less than a year and a half when he was assigned to write the majority opinion in Roe v. Wade.

There is a brilliant new biography called ``Becoming Justice Blackmun'' by Linda Greenhouse. I finished it and recommend it to my colleagues. Justice Blackmun served on the Court at several different levels and kept copious notes. From those notes, which were donated, they have derived this biography, which I recommend to anyone, regardless of your political background, to understand what happens behind those closed doors at the Supreme Court.

Justice Blackmun revealed in this book how he struggled with the assignment of writing the majority opinion on Roe v. Wade. You see, he had been the general counsel for the Mayo Clinic, one of the most outstanding hospitals in America, which happens to be in the State of our Presiding Officer, Minnesota, in Rochester. So Justice Blackmun left Washington and went back to the library of the Mayo Clinic as he wrote this decision. He worked for long periods of time, plowing through books and articles on the whole question of abortion. He listened to a lot of people, including his own daughter, who dropped out of college in her sophomore year after becoming pregnant.

In his notes for the Roe decision, Justice Blackmun made two predictions. Here is what he said. The Court will be excoriated at first for its decision. Then, he went on to say, there will be an unsettled period for a while as States brought their laws into compliance with the Roe v. Wade decision.

The first prediction proved accurate; the second, overly optimistic. Thirty-two years after the Roe decision, 40 years after the Griswold decision, America today remains unsettled, not only about reproductive rights, but about many other fundamental matters of conscience as well. We are struggling today with a question that is as old as our democracy itself: What is the appropriate, what is the proper relationship between personal religious belief and public policy?

How many battles, how many debates do we struggle through that go to that single issue? When should one group in America be able to impose its own moral code on the rest of society?

It is worth remembering that the Griswold decision overturned Connecticut's version of a Federal law called the Comstock Act. In 20 years on Capitol Hill, I have never heard anyone refer to the Comstock Act. Listen to the history. This law was named after its author, Anthony Comstock, a morals crusader and a zealot anti-abortion advocate.

In 1868, Anthony Comstock was the driving force behind a State anti-obscenity law in New York. In 1873, he brought his crusade to Washington. He lobbied Congress to pass a Federal law making it a crime to advertise or mail not only ``every lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character'' but also any information ``for preventing conception or producing abortion.''

Congress passed the Comstock law unanimously, with little debate. It then commissioned--this is something I find almost hard to believe--it commissioned Anthony Comstock as a special agent of the U.S. Post Office, gave him the power under the law to define what should be banned in America, and also vested in Mr. Comstock the power of arrest and gave him a huge travel budget. Imagine that: Mr. Comstock spent the next 30 years crisscrossing America, enforcing his law as he saw fit.

Two years before he died in 1915, Anthony Comstock bragged that he had been personally responsible for the criminal conviction of enough people to fill a 61-car passenger train. He prosecuted Margaret Sanger, the family planning pioneer, on eight counts of obscenity because she published articles on birth control. Druggists were punished and criminalized for giving out information to Americans about family planning and contraception. Publishers revised their texts and books so as to avoid the wrath of Mr. Comstock and his law, deleting banned words such as ``pregnant,'' and Americans lived with his censorship of the mail.

The Irish playwright George Bernard Shaw dismissed the Comstock Act as ``a standing joke at the expense of the United States.'' There was nothing funny about the Comstock Act, nothing funny to those who were forced by the law to conform with Anthony Comstock's rigid personal moral code. The penalty for violating the Comstock Act was up to 5 years in prison at hard labor and a fine of up to $2,000. For every victim who was prosecuted, there were untold others whose lives, health, and family suffered as a result of being denied basic information about family planning.

Linn Duvall Harwell is one of those who suffered. Miss Harwell now lives in New Hampshire. She is 82 years old. In 1929, when she was 6 years old, her mother, who was then 34 and pregnant for the eighth time, lost her life. She tried to abort her own pregnancy using knitting needles and bled to death, leaving behind a husband and five small children. Linn Duvall Harwell has spent her life trying to spare other women her mother's fate by protecting women's right to safe and legal contraception and abortion.

In 1958, Linn Harwell moved to Connecticut. A woman at her church asked her to volunteer for Planned Parenthood. She and other young mothers were trained in medical understanding of birth control by Estelle Griswold, the director of Planned Parenthood in Connecticut, and Charles Lee Buxton, the league's medical director. These were the two people who brought the lawsuit that later became the Griswold case before the Supreme Court. Years before the Court struck down Connecticut's Comstock law, Linn Duvall Harwell defied the law to teach poor women in housing projects about birth control and family planning.

Yesterday, the Chicago Sun-Times carried an article written by Miss Harwell about her life's work and the renewed threats today to the rights identified in Griswold and Roe. In her op-ed, Miss Harwell recalled a woman she met in 1968 named Rosie. Rosie was 32 years old. She and her husband, a short-order cook, were the parents of 11 children.

Miss Harwell wrote:

By the time I met Rosie and her family, I could not help her, for she had so many children already. She and her family were imprisoned in poverty because she was unable to access the preventive medicine that I easily obtained.

She added:

The Comstock law denied health care to millions of Rosies because of religious bigotry, legalized injustice and ignorance.

Today, it is estimated that 95 percent of American women will use birth control during their childbearing years. Reliable birth control is now a critical part of preventive health care for women. And Roe, although it has been weakened, is still the law of the land.

The widespread use of birth control has helped reduce maternal and infant mortality by an astonishing two-thirds in the last 40 years. Since Griswold, we have reduced infant and maternal mortality in America by two-thirds. In 1999, the U.S. Centers for Disease Control and Prevention included family planning on the list of ``Ten Great Public Health Achievements in the 20th Century.''

But Comstockery seems to be making a return. You can see it in efforts to impose gag rules on doctors and other measures designed to make it harder for women to get information and services related to family planning and abortion. You can see it in the stories of women who are harassed by pharmacists when they attempt to fill prescriptions for contraceptives--in some cases, even after these women have been victims of sexual assault.

A chill wind blows for reproductive rights and possibly other issues of conscience as well. You can hear that wind in the rhetoric of extremists who rail about the ``culture war'' in America and misrepresent legitimate political debate as attacks on people of faith.

We heard the chill wind of religious intolerance in some of the sad debate over the tragedy of Terri Schiavo. We heard it in the dangerous, vitriolic condemnations of judges, like George Greer, the judge in the Schiavo case, who dared to enforce the law as he believed the Constitution required.

We can hear that chill wind of religious and social intolerance today in the debate over stem cell research. Once again, as with the Comstock laws, a passionate group who sees itself as the moral guardians of America would use the power of our Government to deny life-saving medical care to those who need it. They believe that a cell blastocyst deserves the same legal standing and protections as a full-grown child or adult suffering from Parkinson's or diabetes or terrible injury to their spinal cords. I respect their opinion. I respect their religious beliefs. In most cases, I don't share them. Neither do most Americans. I don't believe this vocal minority, no matter how well intentioned they may be, no matter how moral they believe themselves to be, should have a veto power over medical research that offers apparently unlimited potential to heal broken bodies and minds and save lives.

Will our courts continue to recognize the constitutional right to privacy on family planning and other profoundly personal issues? Or will we fill the Federal bench with judicial activists who see themselves as soldiers in a cultural war, who want to put their own agendas ahead of the Constitution? That is one of the questions that is at the heart of the debate on the Federal judges.

The filibuster debate is not about old Senate rules. It is about whether self-described cultural warriors can use our Government to impose their personal moral agenda on America.

In April, a group of organizations held a televised rally to condemn the Senate filibuster rule as a weapon against people of faith. They called it ``Justice Sunday.'' That day, Janice Rogers Brown, the nominee now before the Senate, gave a speech in which she argued that ``people of faith are embroiled in a war against secular humanists.'' According to newspaper accounts, she went on to say:

[T]here seems to have been no time since the Civil War that this country was so bitterly divided. It's not a shooting war, but it's a war.

Mr. President, Americans are not at war with one another. We are at war in Afghanistan and Iraq, wars, sadly, fueled by religious extremism in many respects. Expressing honest, fundamental differences of opinion on political and social questions here at home is not an act of war. It is an act of democracy. It is our democratic process and our Constitution at work.

I respect the right of every person to express his or her beliefs about religion or anything else. That is part of the beauty of being a citizen in this great Nation. But we cannot allow the beliefs of a majority, or even a vocal minority, to determine moral choices for every American. As the Supreme Court ruled so wisely 40 years ago, there are decisions that are so intensely private that the Government has no right to intrude.

Soon I hope we take up the issue which the House considered just several days ago on stem cell research. It strikes me as strange, maybe unfair, that some believe we should oppose in vitro fertilization in every circumstance. I have friends of my family, friends for years, who have spent small fortunes in the hopes that a mother and father who cannot conceive by natural means can use this process to have a child whom they will rear and love all of their lives. One of my friends has spent $80,000 in two separate, thank goodness successful, efforts, and she has two beautiful children to show for it.

I cannot imagine why that is an immoral act, when a husband and wife will go to those extremes to bring a life into this world that they will love and nurture. But we know, just as in normal conception, there will be, during the process, some of the fertilized eggs that will not lodge in a mother's womb and lead to human life. That is the natural thing that occurs.

The same thing happens during in vitro fertilization. If they are successful in creating this fertilized egg, and then implanting it in a woman's womb so she can have a baby, it is a miracle, but as part of that miracle there will be some of these fertilized eggs which cannot be used.

So the question before us in stem cell research is very clear: Should stem cells from blastocysts be used to save others' lives, to prevent disease, to give someone hope and a future? That is what it is about. There are some who say no, some who would say we should not allow in vitro fertilization, and others who say, if you allow it, you should never allow those discarded blastocysts to be used for medical research.

The position of the Bush administration is close to that. The President, in August of 2001, said he would approve certain stem cell lines being used for research but no others. Well, it turns out those stem cell lines were very limited in their number and quality, and scientists and medical researchers have told us that the President's approach is not going to give us the opportunity we need to develop these stem cells into cures for diseases. So many of us believe we should move forward.

We should have strict rules against cloning. I do not know of a single Member of Congress, of either political party, who supports human cloning. We are all opposed to that. It should be condemned, and we should have strict ethical guidelines on the use of these stem cells so that they are used legitimately for research, not for profit or commercialization, but legitimately used for research to try to find the cures to these vexing diseases.

Many of us believe that this is as pro-life as it gets. If you can take stem cells that would be otherwise discarded and never used for any purpose and use them for the purpose of giving a youngster who has to inject with insulin three times a day a chance to be rid of diabetes, if you can use it for a person afflicted in their forties or fifties with Parkinson's disease, which is a progressively degenerative disease in most instances, if you can use it to try to regenerate the spinal column and all the things that are necessary so someone can walk again after a spinal cord injury--how in the world can that be wrong?

That strikes me as promoting life. Yet some will come to the floor, even threatening a filibuster, saying that we cannot do this because it violates their personal moral and religious beliefs. Well, I understand that. And that is how they should vote. But to stop the rest of the Nation--because of their personal moral and religious beliefs--from this type of medical research seems to me to be counterproductive, if you are truly committed to life and the health of those who surround us.

Forty years ago, the decision was made across the street that there are certain elements of privacy, there are certain elements of personal decisions made by individuals and families which the State, the Government cannot overrule because of anyone's personal religious, moral belief. They said that privacy is critically important in America. Those private decisions should be protected.

Every nominee for the Supreme Court I have heard in recent times has faced a Judiciary Committee question from some member, Democrat or Republican: Do you still agree with the Griswold v. Connecticut decision? Do you still believe that, even though this Constitution does not include the word ``privacy,'' that is part of what we have as Americans as part of our individual rights and liberties? The only one who tried to, I guess, split the difference and find some way to argue around it was Robert Bork. His nomination was ill-fated after he made some of those statements.

I believe most Americans feel we should be personally responsible, that we should be allowed to have our own personal religious beliefs, but they also think we should stay away from the Government imposing religious beliefs on one group or the other. That is what happened with the Comstock laws. That is what led to the laws in Connecticut, which were stricken in Griswold. Sadly, that is part of the debate today when it comes to stem cell research.

I am urging Senator Frist, a medical doctor, one I greatly respect, to bring this bill up and bring it up quickly. I know there is a feeling by the White House, and maybe even by some in Congress, that we should avoid this stem cell research debate. But when you think of the millions of Americans and their families who are counting on us to move medical research forward, is there anything more important on our political agenda?

I sincerely hope President Bush, who made an exception for some stem cell lines for research, will understand that you cannot take an absolute position on this issue. It is a tough issue. It is one where we should draw good, ethical guidelines for the use of this research, but not prohibit it, not close the door to this research and the cures that could emanate from it. That, I think, would be a lesson well learned, a lesson consistent with the decision made by the Supreme Court 40 years ago today.

Mr. President, I yield the floor.

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