The opinion of the court was delivered by: DOOLING
Since there were no committee hearings on the "Hyde amendment," and the conference report material is meagre, if, in the case of the Appropriation Act for the fiscal year ending September 30, 1977, significant, the legislative history was made in large part in conference committee meeting and in the debates on the floor of the House and of the Senate. The wide ranging debates, necessarily repetitious in large part, are fairly evocative of the whole range of views entertained on and considerations involved in the issue of abortion, within the limits of the decisions in Roe v. Wade, 1973, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, and of Doe v. Bolton, 1973, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201.
The Department of Labor Health, Education, and Welfare Appropriations, 1977, bill (H.R. 14232) was reported to the House of Representatives on June 8, 1976 (122 Cong.Rec.H 5409).
On June 24th Mr. Scheuer, proposing an amendment to increase the appropriation for family planning services by $ 21,900,000, as the Senate had done, argued (H 6622):
"There is no more compelling argument for the need for family planning services than the fact that there were over 1 million legal abortions performed last year. And, since abortions are not yet available in all parts of the country, we can expect that many illegal abortions were performed. Many of these unwanted pregnancies were a result of contraceptive failure, since there are no methods of contraception which are perfectly effective. But many more were due to a lack of availability of preventive services.
"At least 1 million young teenage girls become pregnant each year. One-fourth of these pregnancies will result in birth out of wedlock and nearly one-third in abortions. Two-thirds of all teenage brides are pregnant at the alter; and we know, not surprisingly, that these teenage marriages have exceedingly high failure rates. Young girls should not have to begin their adult lives with such difficult experiences or responsibilities. There is a more humane and better way for the individual and the society to deal with unwanted pregnancy, and that is through prevention."
Mr. Beauman contended that, in spite of the prohibitory language in Section 1003 (Section 1008?) of Title X of the Public Health Service Act (42 U.S.C. §§ 300a-6, 300a-7), family planning funds were reportedly used for abortions (H 6623-24), and Ms. Abzug, agreeing that abortion is the least desirable form of family planning, nevertheless asserted that "the right to abortion is a fundamental right" (H 6624). Supporting the Scheuer amendment, Mr. Cleveland pointed out (H 6624):
"The National Center for Health Statistics reports that unwanted pregnancies continue especially in the very young. In 1974 alone the Center for Disease Control found there were 300,000 abortions and 221,000 illegitimate babies born to teenage mothers. Between 1970 and 1974, illegitimate births increased by 4 percent.
"In the same time period, the once promising growth of U.S. family planning programs came to a standstill and then began to decline. A prime reason for this was the freeze on family planning appropriations."
Later, on June 24th Mr. Hyde offered an amendment that would add to the bill a Section 209 reading (H 6646-47):
"None of the funds appropriated under this Act shall be used to pay for abortions or to promote or encourage abortions."
Mr. Hyde acknowledged that his amendment would stimulate debate, but he argued (H 6647):
"Nevertheless, there are those of us who believe it is to the everlasting shame of this country that in 1973 approximately 800,000 legal abortions were performed in this country and so it is fair to assume that this year over a million human lives will be destroyed because they are inconvenient to someone.
"The unborn child facing an abortion can best be classified as a member of the innocently inconvenient and since the pernicious doctrine that some lives are more important than others seems to be persuasive with the pro-abortion forces, we who seek to protect that most defenseless and innocent of human lives, the unborn seek to inhibit the use of Federal funds to pay for and thus encourage abortion as an answer to the human and compelling problem of an unwanted child."
Mr. Hyde saw the issue as requiring a determination whether or not "the unborn person is human"; he said that medicine, biology, embryology say that the growing living organism is a human life, that, once conception has occurred, "a new and unique genetic package has been created, not a potential human being but a human being with potential," and that "birth is no substantial change, it is merely a change of address." He concluded that "An innocent, defenseless human life, in a caring and humane society deserves better" than to be destroyed before birth. Mr. Flood, although he favored a constitutional amendment on abortion, opposed the amendment as "blatantly discriminatory"; saying that abortion was not an economic issue he continued (H 6647):
"To accept now, this is coming from me to accept this amendment, the right of this country to impose on its poor citizens, impose on them a morality which it is not willing to impose on the rich as well, we would not dare do that. That is what this amendment does. To me, the choice is clear. Listen: A vote for this amendment is not a vote against abortion. It is a vote against poor people. That is what it is, as plain as the nose on your face."
Mr. Guyer answered (H 6647) that the issue had become all but threadbare largely because "we cannot get action from the proper committee to really correct the wrong by constitutional amendment," that, meanwhile, "the children should have a bill of rights," that
"they have civil rights, they have property rights and they have divine rights.
"What a woman does with her body is her own business.
"What she does with the body of somebody else is not her business.
"I think that we here should go on record as safeguarding that most precious commodity, the gift of little children from God, who have a right to live."
Mr. Bauman supported the amendment (H 6647-48); agreeing that the amendment reflected frustration of other efforts in the House and Senate to bring the abortion issue to a vote, he urged that the children of the poor have no less right to life than the children of the rich, and that it would be better to protect the lives of all children than for the government to go on paying for more than 300,000 abortions a year at a cost of $ 40 to $ 50 million; he argued (H 6647):
"I think the unborn children whose lives are being snuffed out, even though they may not be adults have a right to live, too, regardless of the mistaken and immoral Supreme Court decision. . . .
"This is the most fundamental issue that this House will ever address; it involves a precious right once accorded to every Member at some time in the past, the right to live. Let us not deny it to others."
Mr. Kindness (H 6648) saw the amendment as the only opportunity the House would apparently have to address the issue of abortion, and said that representatives should represent the members of the public who found it offensive to have their taxes used in this way. Ms. Abzug (H 6648) characterized the amendment as unsuited to accomplish the purpose of its sponsors and as cruel; she argued that opinion surveys indicated majority approval of the Supreme Court's 1973 decisions; she said that, although she supported the decisions, she also respected the right of others to disagree with the decisions, but, she continued:
"Still, there must be an understanding that those who differ as a matter of conscience or religious belief have no right to impose their views on others who also wish to exercise their rights in their own way.
"The implementation of this amendment or an amendment like this, if agreed to in this House, will mean only one thing, and that will be, as was pointed out by the subcommittee chairman, to deny to some people the rights the majority have in this country."
Ms. Abzug predicted an increase to 25,000 in the number of cases involving serious medical complications from self-induced abortions, and that some of the patients would die. She argued that by adopting the amendment the government would be "de facto putting itself in the position of countenancing abortion for those who can pay for it but denying it to others who cannot," and would be taking clearly discriminatory action. Referring to the hearings on the proposed amendments as the appropriate forum for considering the abortion issue, Ms. Abzug said:
"Some say that is not enough and there are individuals who seek only to reflect their own point of view in this lawless and inappropriate way; and not the point of view of the majority who seek to distort the legislative process; and who seek to deprive the poor person, who always carries the burden of discrimination now once again."
Mr. Butler stated (H 6649) that the House Judiciary subcommittee had not voted out any amendment because he found no consensus among the witnesses or in the subcommittee which would indicate that any amendment would pass either the House or the subcommittee. Mr. Butler announced his opposition to Mr. Hyde's amendment. Mr. Koch, announcing his opposition, said that even those opposed to the Supreme Court decisions "are not for this all encompassing amendment," which would "deny an abortion even to a woman whose very life would be lost without the abortion" (H 6649).
The amendment was put to a vote, and it carried 207 to 167, 57 not voting.
Later in the day Ms. Abzug reopened the issue, contending that the House could not have realized that the language of the amendment excluded therapeutic abortions, and so was "terribly discriminatory" to the poor women (H 6659). Mrs. Burke (California) noted that the language might forbid reimbursement for kinds of abortions in circumstances that would be allowed "within the Catholic Church," and that might result in death (H 6660). Mr. Bauman opposed reconsideration (ibid.), saying that the language did not forbid abortions performed "to save the life of a mother. It does not in any way forbid any abortions, or in any way restrict the right to have an abortion"; he said that the amendment did say that tax funds could not be used for abortions, that the concern was for "the poor children who are not yet born," that the House was concerned for mothers as well, "but the right to life is a right to be accorded not just to mothers but also to those who cannot help themselves." Mr. Bauman added that for two years the House had been denied the chance to vote on the issue by committees which had refused to report a right-to-life amendment. When, later in the day, the bill as amended came to a vote, a separate vote was called for on the Hyde amendment, and it was again agreed to, 199 for, 165 opposed, and 67 not voting (H 6660-61).
The Senate took up the Hyde amendment to H.R. 14232 on June 28, 1976, with Senator Packwood's offer of an amendment which would have stricken Section 209 from the bill (S 10793). Senator Packwood called the amendment "the most odious of all amendments" because it would forbid the use of federal funds for certain kinds of family planning "or for therapeutic abortions," including abortions to save the mother's life and "abortions because the child is likely to be born deformed" (S 10794). He argued that the amendment was alien to the function of an appropriation bill, that "the amendment is clearly unconstitutional," that state efforts so to limit medicaid abortions had been invalidated in at least ten federal cases, that the courts, including the Supreme Court, had held that moral disapproval, cost, desire to discourage, and administrative convenience are not sufficiently compelling to allow a state to restrict a constitutional right, and that even an amendment excepting therapeutic abortions from its prohibition had been considered unconstitutional (ibid.). The Senator noted that DHEW had advised that denial of medicaid for abortion would increase the cost to the government of medical care and public assistance for the first year after childbirth; he asserted that the amendment prohibited abortions for the poor although the rich could still have abortions, and that the amendment would "simply force the poor back to the situation that existed before the Supreme Court decisions in the Roe and Doe cases" (ibid.). Senator Helms stated that the argument seemed to be that "it is cheaper to the State to kill the unborn children of the poor man than it is to let them be born" (ibid.). Senator Packwood said he did not rest on cost at all; he pointed to a DHEW estimate of two years earlier that 125 to 250 deaths from self-induced abortion would result if they could not be obtained legally, and referred to the possibility that there would be up to 25,000 cases involving serious medical complications from self-induced abortions (S 10794-95). Agreeing with Senator Helms that the issue was moral not financial, and that the view opposed to abortion was held very sincerely, very honestly, and in many cases very religiously, the Senator continued (S 10795):
"I have seldom seen in my now almost quarter century, in one form or another, of public life, an issue whose adherents on both sides more passionately felt that they are right. But just as there are those who want to prohibit abortions and are convinced, for whatever reasons, moral, religious, or others, that they are right, there are an equal number on the other side equally convinced that whether or not a woman chooses to have an abortion is not the business of this Congress, this Government, or of anyone else, but a private decision to be made between the woman and her physician. They feel that just as passionately."
He then presented a very long list of religious organizations, medical groups and public interest associations that supported legalized abortion, saying that they were not groups "unconcerned with the sanctity of life"; he said that opinion polls indicated that a majority of Americans consistently supported the Supreme Court decisions on abortion, and he concluded (S 10796):
"So in this case, it is not an effort by a well-intentioned majority to impose its wishes on a minority. It is an effort by a well-intentioned, sincere, zealous minority minority to impose on everyone in this country that minority's view of law, that minority's view of medicine, that minority's view of morality. I think it is a mistake."
Senator Bartlett opposed the Packwood amendment, arguing (as the Solicitor General was said to have argued in Doe v. Beal ) that a woman's qualified right to an abortion does not imply a correlative constitutional right to free treatment, that the Government had no figures on the amount it expended for abortions but that it approximated $ 100 million a year, that the Supreme Court had ruled on the legality of abortion but could not mandate Congress to follow suit by spending taxpayers' dollars for abortions, that abortions were not legal by reason of Congressional action but by reason of the Court's action, and that, in consequence, the Senate had passed no legislation "to authorize the financing of abortions" and had not sought to conduct a hearing to determine the extent of federal financing of abortions (S 10796). Senator Helms opposed striking Section 209 from the bill; he argued that the question ought not be settled by referendum (S 10797):
"It involves human lives. If some Member of the Senate could persuade me that an abortion is not the termination of a human life, I would have no further problem with the amendment of the distinguished Senator from Oregon."
He reiterated the argument that the woman's right to privacy with respect to abortion did not import a federal duty "to use public funds to finance the termination of human life," that there is no such constitutional requirement laying the moral issue aside although (S 10797)
"I am not personally able to ignore what I consider an awesomely important moral issue."
Senator Bartlett suggested that there was a measure of hypocrisy in including in a bill providing medical and health items intended to save or prolong life a provision of millions "to destroy the lives of the healthy unborn" (ibid.). Senator Brooke argued (S 10797) that the Hyde amendment used language more restrictive than that of the proposed constitutional amendments, that under it even the health and life of the mother could not be protected if an abortion were the only way of protecting that life. Senator Pastore contended (ibid.) that the issue was not poverty but morality; believing, as he was brought up to believe, that life begins at conception, he yet respected the beliefs of those who disagreed; he continued (ibid.):
"But here we are spending public money on a highly controversial moral question."
The doctors, he urged, were the ones to decide whether an abortion was needed to save a woman's life. Senator Brooke interjected that the Hyde amendment denied the woman medicaid funding for that purpose. Senator Pastore answered (ibid.) that although that was true, it was also true that without the Hyde amendment the bill would be "sanctifying with public money something that other people morally have an objection to," that it was for the many private agencies active in parenthood service to finance such abortions, but that:
"The big question here is a large proportion of the American public do not believe in abortions. There is a large proportion of the American public who believe in abortion. I do not think that question ought to be decided with public money on the floor of the Senate. That is the only argument I have."
Senator Packwood pointed out that widespread moral objection to the Vietnam war was not considered a valid justification for resisting its prosecution with civil disobedience, and that the country's history was replete with federal expenditures for purposes that sometimes a few and sometimes many people thought wrong and immoral (S 10798). Senator Bartlett reiterated his assertion that there was hypocrisy in the Government's spending millions for cancer research and millions for abortions "taking lives of healthy unborn" (ibid.). Senator Brooke challenged the statement that millions were spent "for the abortion of healthy unborns" (ibid.). To Senator Pastore's urging that public funds should be kept out of this highly moral question on which American public opinion was split down the middle (ibid.), Senator Packwood answered that "All the Medicaid money that is given out does not force a woman to have an abortion against her will," and that the bill minus the Hyde amendment was neutral, whereas with the amendment, the bill came down "on the one side against the poor who cannot afford an abortion" (S 10798-99). Senator Brooke argued that it was unconstitutional discrimination to provide medical service to women who chose to bear children and deny it to women who chose to exercise their right to terminate their pregnancies in the first trimester, and that the private agency alternative referred to by Senator Pastore was not truly available to poor girls who "have to go down some dark alleyway" and have "an abortion by a butcher"; he noted that the Hyde amendment would deny abortion even to victims of rape and incest (S 10799). Senator Bartlett said the question was whether, recognizing that abortion is legal, the Senate wanted to finance the taking of thousands of human lives on the recommendation of the mother who is unwanting of the child and the doctor who is paid by the government; he asked whether Senators Brooke and Packwood felt that it was moral to take the thousands of lives that were being taken by federally financed abortion (S 10800). Senator Brooke said that he did not think abortion should be used for birth control; Senator Bartlett at once said that existing law provided no test for determining whether abortion was being used for birth control. He argued that it was wrong to discuss abortion in terms of the mother and not the unborn child, and that the unborn were the "true minority" (ibid.). He agreed with Senator Brooke that the mother's life was a matter of concern, and he said that he would have included such a provision if he had drafted the Hyde amendment (S 10800-01); but he contended that the Hyde amendment was preferable to existing law, which provided financing "for abortions just not to have children" (S 10801). Responding to an argument about the morality of exposing the mother's life to risk, he said (S 10801):
"When people say they do not want their morals to be forced on someone else, that they want them to be free to act as they would like, they are forgetting about the fact that we are forcing a morality upon the unborn fetus."
Senator Magnuson observed that the Hyde amendment would conflict with his state's rejection on a controversial initiative of similar legislation; he questioned the effect of the amendment on the state's established funding of the state share of abortion cost. (ibid.).
Senator Bayh contended (S 10802) that the Hyde amendment introduced a dual standard between rich and poor, and would allow no relief to the woman whose pregnancy endangered her life; he said that neither the Hyde amendment nor a constitutional amendment would end abortion,
"So some of us who are really hard pressed to come to grips with this from a moral standpoint have to face reality as well as morality. The fact right now is not whether or not there are going to be abortions but whether they are going to be on the operating table, in the doctor's office, or in the backroom, on a butcher's block.
"The Senator may not have to face up to that, but that is what all the records show, that abortions are not going to disappear. There perhaps will be a slightly fewer number I will admit that but there also will be a lot of lives lost because of the illegal abortions that are performed in the most horrible conditions."
Senator Bartlett insisted (ibid.) that to defer to the moral judgment of the mother who did not want the child and a doctor paid by the government forces the fetus to have its life taken, and ignores the moral question so far as the unborn child is concerned, that the unborn child is discriminated against because some do not consider it "to have the dignity of human life. But it is obvious that it does." Senator Bayh referred to evidence taken in the hearings on the proposed amendments concerning the traumatic experience of undergoing an abortion and of the evidence of mutilation and death (from illegal or self-induced abortion); he referred also to abortion as a means of avoiding the birth of children suffering from Tay-Sachs disease, a fatal malady (S 10803).
Senator Hathaway supported Senator Packwood's amendment (S 10804), arguing that the Hyde amendment was substantive legislation inappropriate for inclusion in an appropriation bill, and that the Hyde amendment was invalid, denying indigent women equal protection of the laws and discriminating against them; he argued:
"The situation we are setting up by denying States the right to spend money for abortion purposes under the medicaid program is this: We are saying, in effect, that the poor or indigent woman who is pregnant can get money under Medicaid only if she intends to go through or is medically able to go through with a full-term pregnancy. If that is not her intention, however, and she wishes or needs to exercise her right guaranteed by the Supreme Court under the Constitution of the United States to have an abortion, we are denying her those funds. That is clearly a violation of the equal protection provision, because we are discriminating within a class of people who are entitled to Federal funds. Please note this is not a "rich against poor" argument, but rather the setting up of discrimination classes among the poor.
"We certainly are obligated not to discourage people from exercising their right under the Constitution by depriving them of funds so they can so exercise that right."
Senator Packwood in his closing argument (S 10805) observed that the Hyde amendment was a total prohibition, effectively denying to a large group of citizens the constitutional right to an abortion. He contended that it would be immoral for Congress to recognize the right but "to effectively take away that right for those who cannot afford it" (ibid.). Commenting on the difficulty in moving legislation on either side of the issue, he said (ibid.):
"If we are going to adopt the standard that the Federal Government or the State governments will not spend money on something that a bare minority of its citizens are passionately or morally opposed to, then we are not going to spend money for much of anything. A representative form of government cannot work if a minority at any particular stage will say, "Wait, we feel strongly about that so we are not going to spend any money.'
"We cannot allow a determined minority to attempt to impose upon all of the majority a view that that minority alone holds."
Senator Bartlett in his closing argument (ibid.) insisted again that "The real minority are the unborn children whose lives are denied by the actions in concert of the mothers, the prospective mothers, and a doctor paid for by the Federal Government." He argued that the treasured and constitutionally protected right of all to life was not (under existing law) extended to the unborn "even though human life is involved from the very beginning of conception, as the great majority of the people believe." He said (ibid.):
"This is a moral question, and I think at a time when the people are divided on this, either side can show polls that the majority favor their side, but I think it is very basic that the U. S. Government does not have to nor is there a right being denied if the U. S. Government does not finance abortion".
Quoting from the brief of the Solicitor General (already referred to) the assertion that "the fact that a woman has a qualified right to an abortion does not imply a correlative constitutional right to free treatment," he stated that the question was whether or not the Senators "want to finance a legal abortion and take the lives of thousands and thousands of unborn children" (ibid.).
Senator Dole brought the first phase of the debate to a close (S 10805-06); he characterized the House-passed language as "probably overly restrictive and absolute," and stated that he would vote against both the House language and the Packwood amendment. He observed that Senator Bartlett's motion to table the Packwood amendment had "prevented the basic qualification respecting the life of the mother from being adopted," a qualification that, he said, could well have made the prohibition acceptable to a majority; he concluded (S 10806):
"In any event, we may be dramatizing the issue too much by suggesting that a doctor or hospital is going to deny an abortion to a mother who cannot afford one but whose life depends upon it just because the Federal Government will not pick up the check. Let us face reality: If a dying woman requires emergency surgery, the oath of Hippocrates does not stipulate that a decision to proceed be based on dollar signs.
"While not totally satisfied with what section 209 of this appropriation bill as added by the House I am opposed to the pending proposal to delete it completely."
Put to a vote, Senator Bartlett's motion, to table the Packwood amendment deleting Section 209 from the bill, was defeated 27 to 55, with 18 not voting (S 10806).
Senator Bartlett at once offered an amendment to Section 209 (the Hyde amendment) that would have added the words "except such abortions as are necessary to save the life of the mother," but the amendment was ruled out of order on the ground that "The amendment would be legislation on an appropriation bill" (ibid.). The Senate then adopted the Packwood amendment deleting Section 209 from the bill by a vote of 57 to 28, with 15 not voting (S 10806-07). On June 30th the Senate adopted the bill as amended in the Senate, and sent it to conference (S 11139). The House appointed conferees on July 20th (H 7368).
The House turned to consideration of the Senate's disagreement with the Hyde amendment on August 10, 1976; Mr. Fraser opposed the Hyde amendment (H 8627-28) on constitutional grounds, arguing that it discriminated against the poor who are disproportionally black, Hispanic or from other minorities and as inappropriate in an appropriation bill (ibid.). He made part of the record a letter from the United States Commission on Civil Rights strongly opposing the Hyde amendment (ibid.). The Commission said:
"First, we believe that such an amendment would undermine the constitutional rights of women as set forth by the U. S. Supreme Court. Second, it is clear that restriction of Medicaid funds for legal abortion would negatively impact only on low-income women, among whom racial and ethnic minority women are disproportionately represented. Such a result, in our view, would violate the equal protection clause of the Fourteenth Amendment."
It argued that the amendment "would effectively nullify the Roe and Doe decisions for indigent women, as those women must rely on Medicaid and other federally funded health care programs for medical services" (H 8628). The Commission quoted the following from a DHEW impact statement
on the amendment:
"This language would affect virtually all programs involved in or related to the provision of medical care as well as those which are concerned with social and educational services or benefits funded by the Departments of Labor and of Health, Education, and Welfare. Included would be programs such as those of the Bureau of Community Health Services, the Public Health Hospitals, social service programs of AFDC and Medicaid . . .
"The program that would be most affected would be the Medicaid program in 49 States and the District of Columbia. It is estimated that the Department is currently financing between 250,000 and 300,000 abortions annually at a cost of $ 45-50 million. The preponderance of funding is through Medicaid . . .
"The provision would also clearly preclude the use of departmental funds for therapeutic abortions including those to save the life of the mother, severely constrain medical schools receiving capitation grants and other HEW funds from instructing students in the performance of abortions, and preclude any federally supported agencies or projects from counseling clients on the availability of abortion services."
Mr. Flood moved that the House insist on its disagreement to the Packwood amendment, which would have stricken Section 209 from the bill (H 8630). He explained that neither House nor Senate conferees would yield on the issue, and stated that he would support the insistence on the Hyde amendment although he thought the better way to deal with the matter was by constitutional amendment (H 8631). He said that he had been concerned that the amendment might prohibit using funds where abortion was necessary to save a mother's life but had been persuaded that state, local and private funds could provide any necessary therapeutical and medical services (ibid.).
Mr. Pritchard urged the House to support the position of the Senate (H 8631-32). He argued:
"I have a high respect for those who have strong feelings and who are totally opposed to abortion. They have their beliefs, and I think that is proper. They fought hard and they are well organized, and they are one group.
"Then there are some of us who believe that it is terribly important that women have a right to make their own decision, in consultation with their doctor.
"Then there is a third group in this House who, I believe, think that abortions are all right in some cases, but they are very, very worried about voting at this time, just several months before the election.
"Some may feel that this vote will not be recorded or will not be known. Even though they admit that in their districts the majority of people support abortion and allowing women to make this decision they also realize that a very hard and very skillful minority is working very hard which is their right and they are afraid that they will be punished at the polls.
"Mr. Speaker, let me tell the Members that I believe this vote will be known all through each Member's district, for several reasons.
"First of all, I think it is important that we realize that this is a first step in the restriction of abortion. Those who have promoted this amendment I think will be honest and say that this is the way we take our first step in the restriction of abortion.
"The question I want to ask all the Members here today is, Do we really want to take this first step against the poor women and the women on welfare?"
He devoted much of his argument to the adverse effect that the amendment would have on local hospitals, on public health service facilities, Indian health service facilities and on teaching institutions, and predicted that not only the poor but also those employed in health service facilities of all kinds would make themselves heard. He asserted that the amendment was discriminatory and unconstitutional and that "This will not stop abortion, this will just stop safe abortions."
Ms. Abzug contended that the amendment would deny treatment and medication for rape victims, and could be interpreted to prohibit some kinds of family planning (H 8632). She argued (ibid.):
"Those who are personally opposed to abortion have the freedom to model their lives. On that precept, they are free to state their views publicly, to argue and persuade, and to fight for a constitutional amendment. I think they have that right, and I respect that right. But they do not have the right to say that what we provide by law for one group of women we refuse to provide by law for another group of women who by happenstance happen to be poor and underprivileged."
She expressed confidence that the Supreme Court would in Maher v. Roe invalidate the restriction in the state law on abortion funding.
Mr. Edwards (California) argued that the amendment was unconstitutional, and that it defied the common sense and the law as it then stood to insist on the amendment when the three pending cases (Beal v. Doe, Maher v. Roe, and Poelker v. Mayor ) which the Court had agreed to review were undecided (H 8632-33). Mr. Mitchell (Maryland) argued that to support the amendment was to support class legislation (H 8633). He spoke of learning about the consequences of illegal abortions when he served as a probation officer (ibid.):
"Let me ask the Members some questions. Have the Members seen the results of a coat-hanger abortion? Have the Members seen the septicemia caused by a "dirty abortion"? Have the Members seen the illness that women suffer when they get caught up in these abortion rackets? Have the Members seen the result of an abortion performed by a rusty penknife? Have you seen what that does to a woman physically and psychologically? I have.
"All we would do today under the Hyde amendment is to leave those ugly, brutal options open to one class of people: those at the very bottom. Other options would be open to other classes.
"We cannot live with that on our conscience. We cannot live with it."
He argued (ibid.) that the amendment was a blatant denial of equal protection to poor women of whom a disproportion were from racial and ethnic minorities, that it would not prevent abortions but increase self-induced abortions and their medical and cost consequences, the revival of back-alley abortions
". . . and more suicides of young women who cannot face the ugly reality of a child who is not only unwanted by the mother but unwanted by this society, as well."
He contended that the amendment could only increase social disparities.
Mr. Hyde, answering (H 8633-34), quoted from the Solicitor General's brief, said to have been filed in Beal v. Doe, the same passage quoted in the Senate and a further sentence asserting that the presumed right to undergo many recognized medical procedures by licensed physicians does not impose on the states the duty to pay the medical expenses of indigents undergoing those same procedures. He argued that the amendment did not prohibit any abortion deemed necessary to save the mother's life: such operations are not, medically, considered abortions; he added that "the medical indications for so-called therapeutic abortions today are almost zero due to advances in medical science and technology"; and he asserted that the amendment did not apply to the "morning after" pill (diethylstilbestrol, "DES"), nor to IUD cases (associated with spontaneous abortion, septicemia and pelvic inflammatory disease), nor affect instruction in medical facilities or schools (ibid.). Denying any discrimination against the poor, he argued (ibid.):
"Lastly, the most emotional appeal is made that this amendment denies to a poor woman a right to an abortion which a rich woman can enjoy. To accept the argument that this amendment denies the right to an abortion to a poor woman we have to accept the argument that an abortion is a desirable thing. I reject that completely. Abortion is violence.
"Abortion is an inhuman solution to a very human problem. The only virtue to abortion is that it is a final solution. Believe me, it is a final solution, especially to the unborn child.
"Mr. Speaker, let the poor women of America make a list of those things that society denies them and which are enjoyed by rich women. Decent housing, decent education, decent food, decent income, and then say to them, "Now, those will take second place. But we will encourage you to kill your unborn young children. Besides, there are too many of you anyway.' "
He urged (ibid.) that "to kill an unborn child is to deny to the most defenseless of human beings the most basic right of all, the right to life," that the fetus is not a diseased organ to be excised but a human being, that, while women are free not to become pregnant, once a life has been created "a new set of rights and duties arises, and to kill this life because it is innocently inconvenient, to say that some lives are worthwhile and some are socially expendable, is to totally reject the words of our forefathers that "All men are created equal,' not born equal, created equal." He said (H 836) that:
"In New York City, last year for every 1000 minority births, there were 1,304 minority abortions. That is one way to get rid of the poverty problem."
Saying that the Court's legislation of abortion in no way enshrined the procedure, and that it was the Court which "once found Dred Scott to be a chattel, a thing," he asserted that (ibid.).
"The wholesale slaughter of the innocently inconvenient in this country could well be called a "bloody business' and one that must make Herod's biblical slaughter of the innocents seem almost benign."
" . . . let us not make the innocently inconvenient scapegoats for our futility in finding human solutions to these human problems. When the mother, who should be the natural protector of her unborn child, becomes it adversary, then the legislature has a duty to intervene."
Mrs. Schroeder opposed the amendment (H 8634): "it will not stop abortions. This amendment will only limit the availability of safe abortions to poor women." Mrs. Schroeder emphasized that "teenagers" accounted for one third of the abortions and 55% of the babies born out of wedlock, and that four-fifths of the sexually experienced unmarried teenagers did not use contraceptives; she characterized the consequences of the unwanted pregnancies among teenagers as "tragic and costly for the individual, for the unborn child, and for society," and observed that an undersecretary of the DHEW had recently underscored the health risks from teenage births, and had indicated that young mothers were more likely to bear low-birth-weight babies with greater risks of birth defects, retardation, and death. Mrs. Schroeder cited the HEW impact statement for the statement that while medicaid reimbursement for abortions approximated $ 50 million a year, "the implementation of this amendment, forcing poor women to carry unwanted pregnancies to term, will cost the Government from $ 450 to $ 565 million for medical care and public assistance for the first year after birth" (H 8635). She contended (ibid.):
"In addition, retention of the Hyde amendment would interfere with existing State statutes on use of public funds for abortions. Forty-seven States and the District of Columbia now permit medicaid reimbursement for abortions, but the Hyde amendment would prevent them from following their own State laws and guidelines."
She argued that the amendment violated the equal protection clause of the 5th and 14th Amendments and the right of privacy defined in Roe v. Wade and in the decision outlawing the requirement of spousal or parental consent (ibid.), and that it would deny constitutionally guaranteed rights of conscience and of freedom to follow the teachings of one's own religion on abortion by imposing on poor women a religious doctrine not shared by all people (ibid.). Mrs. Schroeder asked the House to "have respect for our Constitution and compassion for the poor those who can very often least afford to bear unwanted or unplanned children." (ibid.)
Mr. Paul asked (H 8635), "What other single social issue since slavery has prompted such political activism." He said that until April 1976 he had practiced obstetrics and gynecology, had treated thousands of obstetrical cases and delivered, he estimated, 4,000 babies; he continued, "During this period of time I never saw one case which required therapeutic abortion in order to preserve the life of the mother. The issue of "the "threat" to the mother' is not realistic since it is so rare. This is emotionally concocted and does not do justice to those who use this as the reason for legislation" (ibid.). Mr. Paul argued that the amendment would not prevent treatment, e.g., of cancer by radiation or hysterectomy though the treatment caused the loss of fetal life (ibid.). He denied that the "potential birth of a malformed child" justified abortion any more than it justified the elimination of new born defective life (H 8635-36). Referring to the manner in which, he said, young people had come to him seeking abortions, he commented (H 8636):
"This lack of concern for human life is an ominous sign of a decaying culture. We as a Congress must not contribute to this decay.
" . . . The use of tax dollars for abortion flaunts the first amendment protection of religious liberty. The advice I give to the pro-abortionists is "Do not use the dollar of citizens with devout religious beliefs against abortion to carry out this procedure.' This is like waving a red flag in front of a bull and providing an incentive for the antiabortionist to organize and rally with great strength. Just remember how the antiwar groups rallied and changed a bad situation in the 1960's when kids were forced to serve and die and taxpayers forced to pay for an undeclared illegal war pursued by an ill-advised administration."
Mr. Paul insisted that there was historic precedent to establish the rights of the unborn and to recognize their legal existence, as in matters of inheritance, and suits for prenatal malpractice (ibid.). He asserted (ibid.):
"Frequently abortion is performed at the desire of an aggressive social worker who fears food may become scarce and for various other personal prejudices. Teenage abortion now is done with specific exclusion of parental consent, if the Government so chooses; another attack on religious convictions regarding the sanctity of the family. Opposite to this is the abortion for the mother of the pregnant girl "to save face." In the private practice I had, this was the strongest motivating factor for abortion. The pregnant girl usually had a great psychological need and desire to be pregnant and deliver a baby. A symbol to her of something that represented love and affection. Abortion carelessly given, financed by the Government, hardly will settle this deep psychological problem.
"My entire political philosophy is built on the firm conviction of the absolute right to one's life and property but precludes all violent activity."
Mrs. Burke objected to the amendment because it contained no exceptions for rape and incest victims or for ectopic pregnancies (ibid.) Mr. Kindness opposed the Government's use of tax dollars to pay for an act in contravention of the civil rights of unborn children "which is particularly offensive to many people from whom these taxes are taken" (H 8636-37). Speaking of the expressed concern for the poor, he argued that nobody was as poor as "an unborn child who has no Government to protect it or who has no one to protect it" (H 8637).
Mr. Obey, although opposed to the Hyde amendment because it allowed no exceptions, urged insistence on it as the way to force the matter back to conference (ibid.). He explained his purpose (ibid.):
"Mr. Speaker, the only way we can get this very divisive and very painful subject discussed in a rational way is to force this issue back into the conference committee where it should have been handled in the first place, where we can try to achieve a rational balance between those who are sensitive about the use of taxpayers' funds for something which they very deeply oppose and those who want to insure that we have some rational exceptions made in the case of legitimate instances of medical necessity."
He noted that there were about six amendments at hand in the House to incorporate exceptions for the cases of danger of death, rape, incest, and such deformity as will result in the infant's death within two years; he added that no amendment took account of the cases in which pregnancy materially worsens pre-existing diseases (ibid.).
Mr. Quie supported Mr. Obey's position, but in principle opposed abortion; he contended (ibid.):
"Mr. Speaker, we are talking here about the right of people, because of their religious and moral beliefs, to not support taking the lives of human beings. Lives which have done no wrong and do not in any way qualify as the "enemy.'
"When I first came to Congress, we could not even talk about birth control, which I believe in. We have come from birth control in 19 years all the way until now we are talking publicly about abortions in this country, and we could continue down the devil's toboggan slide to where we more and more accept as public policy, taking the lives of undesirable people after birth. Already this is occurring with some who are born deformed."
Mr. Meeds argued that the proper place to settle the issue of the morality of abortion was by constitutional amendment, not in an appropriation measure (ibid.). He asserted that in states where abortions were legal, those on welfare should be entitled to abortion in the same circumstances as all others (ibid.) As to the money involved in the appropriation measure, he said that the estimated $ 2,200 first year cost involved in pregnancies carried to term was tenfold the cost of abortion (ibid.) He concluded:
"One of the gentlemen said earlier rather than call it a potential child, he preferred to call it a child with potential.
"The potential of a welfare child is that there will be a repeat of that situation.
"I think every child has a right to be brought into a family that wants that child. A welfare child who is unwanted has two strikes against him or her at the start."
He pointed to the Beal, Maher and Poelker cases as involving resolution of the Hyde amendment issues, and observed that taxpayers must pay for many governmental activities of which they disapprove (H 8637-38).
Mr. Bauman argued (H 8638) that the amendment was as little objectionable as one that forbade use of federal funds to pay for selective murder; he continued:
"From time to time before national legislative bodies major social and moral questions are posed in such a way that their resolution allows future historians to conclude that the decision was a watershed in the history of the Nation. The question before us today has that quality.
"One of my colleagues made reference in debate to a group of people in this House who are concerned politically about their vote on this issue. He suggested that is why perhaps these Members have made up their minds to vote for this amendment, I disagree. This issue is not going to go away, it is going to be with us until finally it is resolved in the only forum remaining, and that is the Congress of the United States."
He urged adherence to the position earlier taken by the House, and, referring to the statement about the comparative cost of abortion as against carrying the pregnancy to term, he said (ibid.):
"I suggest that it is a very offensive argument that the people of the United States of America have now reached the point where they will sanction the theory that our Government should use taxes to kill people because it is too expensive to let them live. Which one of us has the audacity to play the role of God and decide who shall or shall not be permitted to live?"
Mr. Nolan supported the amendment, (ibid.) quoting Benjamin Rush as having said that:
"Nothing can be politically right that is morally wrong: and no necessity can ever sanctify a law that is contrary to equity."
He spoke of all persons' "inalienable right to life" and of the national tradition of protecting the weakest and most vulnerable members of society (ibid.).
Mr. Russo (H 8638), while he vehemently disagreed with the decisions of the Supreme Court legalizing abortion, recognized them as the law until the enactment of a constitutional amendment; but he argued that the legality of abortion did not mean that "Congress must finance the taking of defenseless lives," and that the federal government
". . . should assume a neutral stance in this matter neither interfering with the constitutional rights of the woman, nor encouraging it through the use of tax dollars."
Approving Mr. Hyde's upholding the "sanctity of human life," Mr. Russo continued (ibid.):
"Millions of Americans of all religious persuasions and convictions have beseeched Congress to take firm action and halt the tragic and ever-increasing number of abortions performed in the United States every year.
"Time and time again the proponents of unlimited abortion have derided and scorned those of an opposing viewpoint. This attitude in itself indicates the level of insensitivity that can be reached by the proabortion forces.
"The reverence for life embodied in the Hyde amendment amounts to a significant reaffirmation of what is best in the American character and something of which all Americans should be proud. The mind-set that is created by those who take a casual and flippant view of conception, pregnancy, and birth is destructive of American institutions and is chillingly reminiscent of the underlying philosophy of some of the world's most totalitarian governments."
He acknowledged some merit in the argument that the amendment discriminated against poor women; he contended, however, that the argument was "overshadowed by the fact that every time a woman has an abortion, a human life is lost. This is the essence of this entire discussion today" (ibid.) He concluded with a plea to the House to stop the increasing number of innocent victims of abortion (H 8639).
Mr. Wirth (ibid.) argued against the amendment and for concurrence in the Senate position. He contended that the amendment abridged the constitutional rights of many women, that it would not end abortions but would deny them to women who could not pay for them, and force indigent women to seek more dangerous methods of terminating unwanted pregnancies, exposing them to the risk of unnecessary death or severe emotional and physical complications. Admitting that the available statistics are hard to pinpoint to illegal abortion
he stated that (ibid.):
". . . available statistics indicate that the risks in illegal abortions are substantially higher than those involved with legal ones."
He argued that it was hard to estimate the cost of treating the after-effects of the self-induced abortions that would occur among the indigent if the amendment were passed, but that they would be very large (ibid.). He recommended effort and funding for family planning and birth control, so that abortion would become a rarely used emergency measure (ibid.). He concluded (ibid.):
"I question the wisdom of the Federal Government using the power of the purse to dictate policies arrived at on the State level. My own State of Colorado was one of the first to enact legislation permitting abortions to take place under certain conditions. Clearly, passage of the Hyde amendment would seriously interfere with the exercise of the will of the people of Colorado as has been expressed in their laws. For all of the above reasons, I am voting against the Hyde amendment, and I urge my colleagues to do likewise."
Mr. Oberstar (H 8639), unpersuaded that debate was likely to change any minds, sought to "correct the record" by stating that the Court (in Wade and Bolton ) addressed itself "primarily to the rights of the mother," ignoring what he, thousands of his constituents and millions of others believed was the "vital issue," "the rights of the unborn," which he believed would be best protected by a constitutional amendment. He concluded, urging the House to end "Federal financing for the taking of lives" (ibid.):
"To those who oppose abortion, I call upon their social conscience to consider the far-reaching needs for legislation in the areas of maternal and child health care and prenatal health care, perinatal and child health care, for legislation relating to the medical and other expenses incurred in the adoption of a child, and for funding for rape prevention and control. These are deeply felt needs in our society. It is not enough to support legislation of this kind while we ignore those other needs. The two must be joined together.
"The amendment that we are about to vote on is not, as some have referred to, discriminatory legislation; it is the only voice we can raise in behalf of the voiceless and the voteless the unborn."
Mr. Frenzel (H 8640) recognized that there were degrees of agreement with the Wade and Bolton decisions as well as disagreement, but argued that the amendment discriminated against the poor, and was possibly invalid a point the Court would consider in Maher and Beal. He contended the amendment "would prohibit abortions only for those who need them most," and remit them to illegal abortions with the attendant deaths and serious and costly medical complications; the "issue here," he said, "is equality under law, not the cost of passage or failure," but, he pointed out, the cost to the government if these women were "forced" to carry their pregnancies to term would be tenfold the cost of abortion (ibid.). Of the language of the amendment he said (ibid.):
"It is conceivable that this language could be interpreted to prohibit all abortifacient birth control methods, it could end all teaching of abortion methods in medical schools and could deny abortion counseling or discussions in any classroom or organization receiving Federal funds."
Mrs. Mink (ibid.) characterized the amendment as "inappropriate, unconstitutional, discriminatory, and cruel." She argued (ibid.) that the amendment sought to "set policy" through an appropriation bill rather than, more appropriately, through the Committees to which the issue raised by Wade and Bolton had been presented. She said the amendment was invalid under the equal protection clause, so broad that it prohibited medicaid abortions even if the mother's life was endangered, and urged (ibid.):
"This amendment is simply a discriminatory measure, one designed to limit access to safe, legal abortions to a segment of the population that can ill afford one on their own."
She noted that the measure could not be justified as saving money, and would compound the plight of poor women by driving them to seek illegal and unsafe abortions (ibid.).
Mr. McCollister, supporting the Hyde amendment, expressed his discouragement that those moved by the plight of the poor pregnant woman were so little concerned for the welfare of the unborn child (ibid.). He agreed that the House was dealing with human life, including that of the child; he asserted (ibid.):
"Medical evidence is overwhelmingly clear that the processes of life begin at conception. Regrettably the Supreme Court has ignored this medical fact and has declared that the word "person" as used in the 14th amendment does not include the unborn. (
) However, there appeared no doubt in the majority's 1973 opinion as to what the legal effect of fetal personhood would have on that case. The Court stated:
"If this suggestion of personhood is established, the appellant's case, of course collapses, for the fetus' right to life is then guaranteed specifically by the Fourteenth Amendment.'
"Such a moral pronouncement by the Court seems to me to totally disregard the medical evidence as well as several legal precedents for the rights of the unborn in areas of common law and the law of torts."
Mr. Badillo (H 8640-41) stated that the hearings of the Judiciary Committee Subcommittee on Civil and Constitutional Rights in recent months had explored in depth the legal, moral, and medical aspects of the question without reaching any decision about proposing a constitutional amendment to the Congress and the people; the hearings, he said, made the divergence of opinion among the witnesses clear:
"Yes, there are people who, by their religious belief, feel that abortion is murder. Yet there were representatives of other religions who testified that life begins at birth, and still others stated that a child does not achieve the status of an individual until the age of 1 year. Each group is convinced of the morality of their position, and within the ethical framework of their religion, each is correct. It seems to me, therefore, that it is absolutely untenable for this body to make the judgment that we will accept the morality of one segment of our society, and reject that of another.
"We must, therefore, deal with the legality of abortion, and until there is a higher body to interpret our law than our Supreme Court, we must abide by its decisions. Three years ago, the Court decided that, under certain circumstances abortion is legal in this country. We must abide by that decision, and the Hyde amendment, on which we are about to vote, flaunts that decision. It is, therefore, clearly illegal and unconstitutional."
Mr. Badillo challenged the correctness of Mr. Hyde's assertion that the amendment would not prevent certain types of therapeutic abortions or extend to certain medical procedures that had the secondary effect of ending fetal life (H 8641). He asserted that the bill was doubly discriminatory, against the poor, and against those poor women suffering disabilities for which abortion is the medically indicated procedure (ibid.).
On the motion to recede from the disagreement with the Senate amendment (deleting Section 209, the Hyde amendment, from HR 14232), the vote was 150 in favor, 223 opposed, and 58 did not vote; the motion to insist on the disagreement was, accordingly, agreed to (H 8641-42).
The Senate debated the insistence of the House on the Hyde amendment on August 25th (S 14562-70). Senator Helms opened the debate (S 14562-63) by characterizing as invidious the argument that continued medicaid funding of abortion was cheaper for the government than funding childbirth (an argument that he attributed to Senator Packwood and to Dr. Hellman of DHEW); he said:
"To vote against the Hyde amendment in the context of this argument is to take the Senate on the first step to horror and tragedy. What we will be saying, if we reject the Hyde amendment under these circumstances, is that innocent human lives can and, indeed, should be subordinated to the monetary interests of the state. If we embrace this principle today, to what extremes will we go tomorrow? I predict, and I do so with all seriousness that if we today embrace the principle that innocent human life may be disposed of to save the Government money in regard to child care, in the foreseeable future we could again hear this argument applied to the old, the feeble, the infirm, and the handicapped."
He asserted that "the modern practice of abortion as a policy of government first appeared in the Nazi and Communist dictatorships," that at the Nuremberg trials "the promotion of abortion was considered a crime against humanity," and that the Nazi regime in some circumstances forced abortions on Eastern European women as part of their genocidal policies" but strictly enforced as to Germans the German law prohibiting abortions (S 14562). He quoted from Nazi documents (apparently from the Nuremberg trial materials) instructions to occupation personnel to permit abortions for East European women if they requested them, unless the father was German, in which case special permission was required; he quoted passages indicating that some doctors at the time had disagreed on moral grounds with promoting abortion, and that the more intelligent female eastern workers had misgivings because they "knew" that artificial abortion impaired a woman's ability to conceive; he quoted the Nuremberg defense as arguing that they were exculpated by the fact that the women had requested the abortions, and that abortion generally was "a special violation against life" generally incurring a lesser punishment than murder, and had not before the trial been considered a crime against humanity (S 14562-63). He contrasted the position of American obstetricians and gynecologists expressed in 1940 and 1941 publications of treating the duty to preserve human life as including the unborn (S 14563). To the argument that in a pluralistic society one group should not impose its beliefs on others, Senator Helms answered that he could think of no clearer imposition of one person's belief on another than "by requiring that person under penalty of law to finance activity to which he is morally, religiously, and philosophically opposed." He argued that the Senate had to consider whether it would force millions of Americans to violate their long tradition of religious morality concerning abortion and force them to finance an act which they believed to be a homicide; he asserted that millions of Christians found in the Bible many indications that abortion is contrary to Christian morality. He quoted (ibid.) Jeremiah, Chapter 1, verse 5 (from the King James version):
"Before I formed thee in the belly I knew thee; and before thou camest forth out of the womb I sanctified thee . . ."
Senator Helms cited the June 1976 Southern Baptist Convention resolution as reaffirming the "biblical sacredness and dignity of all human life, including fetal life," and stated:
"Practice of abortion for selfish non-therapeutic reasons wantonly destroys fetal life, dulls our society's moral sensitivity, and leads to a cheapening of all human life."
He argued that funding abortions restrained those who religiously opposed abortion in the free practice of their religion (ibid.). He admitted that a "legislative amendment" to an appropriation bill was generally undesirable, but urged (ibid.):
"Even our most precious and longstanding constitutional principles admit of exceptions in certain circumstances. Today we are talking about the lives of hundreds of thousands of children about to be born and we are talking about a very positive and straightforward restraint on the freedom of religious practice by the use of the taxing power of the Federal Government. I believe that on balance, an exception and necessary on this occasion to our procedural practice."
Senator Bayh argued (ibid.) that a much stronger case could be made for no abortion than for the language of the Hyde amendment which, he contended, said, "if you are poor, if you are a member of a minority group, your chances of having an abortion are going to be seriously limited; whereas, if you are affluent, of any color or ethnic group, you have the wherewithal necessary to get an abortion," and he expressed agreement with the lower court decisions that he said had held that language like that in the amendment was unconstitutional; he expected the Supreme Court would so hold. Senator Helms inquired (ibid.) whether it was not "a matter of saying that nobody shall have an abortion at Government expense?" Senator Bayh answered (ibid.) that the (implied) argument was very closely related to the earlier and unacceptable argument, "Why should my tax dollars be used to dump napalm on defenseless civilians in Vietnam?" Senator Brooke interjected (ibid.) that the point was that people who would be denied federal funding for their abortions if all funding of abortions was stopped are those people only who, if they are to have an abortion at all, would have to have it at federal expense because they cannot afford it in any other way. Senator Helms interpreted Senator Brooke as meaning that the remedy was to force the taxpayers to pay for hundreds of thousands of abortions (ibid.). Senator Brooke answered (S 14563-64) that no Senator favored abortion, that the issue was not "antiabortion or proabortion," but that under the Hyde amendment a mother cannot have an abortion even if it is to save her life. Senator Bayh made the same argument (ibid.) Senator Helms pointed out (S 14564) that Mr. Hyde had said his amendment did not intend "to prohibit those medical procedures necessary to save the life of the mother" but Mr. Brooke insisted that the amendment clearly ruled out all abortions at federal expense. Senator Helms answered (ibid.), "The doctrine of self-defense is applicable here," and argued that there was no uncertainty of intention: life saving types of procedures were not considered abortions, and Mr. Hyde had made the record clear. Senator Bayh denied the validity of the argument, as did Senator Brooke (ibid.)
Senator Packwood rose to deny that he had supported abortion as less expensive for the government than childbirth any more than he based his support of capital punishment on economic grounds (ibid.); rather, he said:
"I think the woman is entitled to determine for herself whether or not she wants to terminate an unwanted pregnancy. It is not the business of the Senator from North Carolina nor me nor the U. S. Government, nor anybody else. It is a decision for that woman to make."
He rejected the idea that other nations' experience in legalizing or forbidding abortion proved something about abortion (ibid.), and while saying, "Abortion is a moral issue," he pointed out that historically abortions had not been forbidden in Anglo-American law until the first half of the nineteenth century, that they were forbidden partly for moral reasons, partly because abortion was medically unsafe, and that in the 1960s some states began to legalize abortion, others considered and rejected such legalization. He continued (ibid.):
"But we can say that in 200 years, we have gone full circle; in terms of at least a majority opinion, from legal to illegal and back to legal again.
"I maintain that God did not talk to any of us at any time in that complete circle and say, "At this point in time, we have reached the final decision on abortion: it is right, it is just, it is moral;' or, "It is awful, it is illegal, it is immoral.'
"If anything, it is a personal decision, a very, very personal decision, and one that should be left to a woman and her physician to determine whether or not that abortion is going to be performed."
As bearing on the argument of morality he read again the list of about fifty religious organizations that favored legalized abortion (S 14564-65). The list included "Southern Baptist Convention, 1974 (Reaffirmed 1971 endorsement)" and "Catholics for a Free Choice, 1975" (S 14565). Senator Packwood explained (ibid.):
"I cite that list simply to say that there is a religious division in this country as to whether or not we should have legalized abortion: a very significant portion of religious leadership in this country says yes, and a very significant portion says no. Under those circumstances, we should not, in this country, attempt to intervene on one side or the other in what is essentially a moral dispute."
He argued (ibid.) that the amendment would not stop abortions: the rich would be unaffected, the poor will bear their pregnancies to term, whether they wish to or not, or else will seek illegal abortions, risking death or other after-effects; if, he said, the Congress wished to weigh in on one side "of a very personal, moral issue," it should understand that they are weighing in, not to stop abortions, but to stop them "for a single slice of the country that is so poor, so barren of any economic resources, that unless they have Government help for medical assistance, they get no medical assistance," in this case, for abortion. He expressed the hope (ibid.) that the Congress would not take that position because it would be "hypocritical in the sense of thinking that we are going to stop abortions, and we are sentencing many women to death who will try to have abortions that will be badly, unscientifically performed, and who will die as a result of those abortions."
Senator Buckley assumed (S 14565) that his position on "the moral aspects" of the issues were known and needed no repetition; to the argument that the indigent woman was constitutionally entitled to public funding for abortion, he opposed the several times quoted assertion in the Solicitor General's Memorandum in Beal v. Doe that the qualified right to an abortion does not imply a correlative right to free treatment; he noted that then Governor Carter had recently expressed the same view. To the general argument that the poor should be accorded the same access to abortion that the means of the rich assure to them, he answered (ibid.) that the poor would be better served by being accorded some other advantage that the rich enjoy. He argued (ibid.) that Mr. Hyde's explanation in the House of the intent of the amendment made it clear that it would not preclude the use of medicaid funds where a woman's life was at stake.
Senator Stennis contended that the issue was not money, nor was it a political issue, nor a legal question (S 14566); he did not see how the Supreme Court could properly lay the predicates and guidelines, the legal and illegal terminology, and restrict the states and federal government in a field that did not present a legal question but a question of old-fashioned morality. He thought abortion virtually analogous to the wrongful taking of human life (ibid.), and, he continued:
"But other than that I believe this trend that we have drifted into, and drifted is a soft word, with reference to abortion as a whole, strikes at the very basic foundations of the family, which is not just an isolated institution, but the family that I refer to is the basic concept of our present civilization, whatever religious sect or whatever religious views, if any, one may have. I am talking about the basic concept of the family and family life.
"As I understand human nature there is no doubt in my mind that this drifting trend we have taken and that we argue and try to justify on a narrow concept is leading us over the abyss on the basic question of what does the family mean and what is its place and how essential and necessary and indispensable it is if we are going to have a society anywhere near the standards of morality and decency and the basic concept of life as we have inherited it and as we have been trained in it."
Senator Eagleton supported the amendment as embodying the only proper federal policy; he emphasized his role in securing passage of the Family Planning Services Act of 1970, and in obtaining senatorial concurrence in a House amendment forbidding use of Planning Act funds for abortions; he argued that the Wade and Bolton cases did not decide that the government had to pay for abortions (ibid.).
Senator Hathaway pointed out that the amendment might be taken to forbid funding for certain widely used birth control methods which may have abortifacient qualities IUDs and "morning after pills" might forbid the teaching of abortion procedures and the use of abortifacient drugs in institutions receiving DHEW funds, and might result in excluding abortion from the coverage of DHEW employees under their governmental medical insurance (ibid.). When Senator Buckley argued that Mr. Hyde had explicitly disclaimed such side effects, Senator Hathaway answered that the language of the amendment was too clear to permit resort to legislative history (S 14566-67). Mr. Brooke agreed with Senator Hathaway and said that Mr. Hyde could have used appropriate language to cover the exceptions (S 14567). Senator Helms explained that if Mr. Hyde (who was then seated in the Senate chamber beside Senator Helms) had tried to include such language he would have encountered the problem of legislating on an appropriation bill. Senator Brooke said that nevertheless no court called on to interpret the language would incorporate the exceptions that Senator Buckley "was trying to write into this language at this time" (ibid.). Working out new language in conference was discussed as a possibility (ibid.).
Senator Brooke argued (ibid.) that the Supreme Court had held that women have a constitutional right to terminate their pregnancies under certain circumstances and had not held that the right was a right only of the wealthy; the Hyde amendment, he argued, did so restrict the right. He asserted that "Women making the choice of abortion should not be discriminated against in Government programs," that the amendment would expose poor women to unsafe and fatal abortions (ibid.); he foresaw "an increase in abandoned, abused, and unwanted children" (ibid.). Senator Brooke cited the Civil Rights Commission's strong opposition to the amendment, its probable invalidity under the Fifth Amendment, its harsh prohibition of abortions to save the mother's life, and in the case of rape and incest, and its possible effect as a prohibition of abortion counseling by any health facility receiving any DHEW financing (ibid.). Observing that the amendment was legislation on an appropriation bill, that the Supreme Court would in the fall hear two cases involving the validity of restrictions on medicaid funding of abortion, and that one such restriction had been invalidated by the Tenth Circuit Court of Appeals, he argued that the amendment was ill-timed, unconscionable, and should be defeated (S 14567-68). Senator Packwood, too, asserted that the Hyde language was too clear to be modified by reference to legislative history; he presented a letter from the American College of Obstetricians and Gynecologists quoting standard definitions of abortion (S 14568).
Referring to Senator Stennis's appeal to old-fashioned morality, Senator Packwood said (ibid.) that before statutes forbade abortions, family life was apparently most reverenced; that in Japan and China, one a democracy, the other a dictatorship, abortion was legal; that the issue did deal with the reverence of family members for one another; that he did not put the matter on constitutional grounds; he urged defeat of the amendment as a matter of wise policy, saying (S 14568-69):
"The wise policy in this country not the constitutional policy, although I am convinced, as I said before, that the Hyde amendment is unconstitutional but the wise policy, the decent policy, is one of individual choice. That is what this country was founded on 200 years ago; the right to make for yourself the decisions that affect you."
Senator Bartlett argued (S 14569) that the "life of the mother" point could be clarified and the bill passed; he attacked the argument of those who said they opposed abortion but also said, "I do not want to enforce my morality on other people." He said:
"Hogwash. I think we impose our morality on other people, or our constituents' morality on other people, time after time in this body. I think it is important that morality be involved in the decisions that we do make, but I think what we are talking about here "
After an interruption, Senator Bartlett resumed (ibid.):
"I think what we are doing here is enforcing someone else's morality on the fetus, on the life of the fetus, as to whether or not that life continued."
The Senate, he argued would be approving the use of one person's morality against another person (ibid.) The question, he said, presented a moral issue and also a legal issue that was legislated by the Supreme Court; the Court had "legislated morally," though in a way disapproved by many in the country; the issue was not one on which "we should feel we have a right or an obligation to finance abortions, which are simply considered anathema by many, many people in this country" (S 14569).
After Senator Helms noted that the name of the Southern Baptist Convention should apparently be deleted from Senator Packwood's list of religious organizations favoring the legalization of abortion, Senator Helms moved that the Senate recede from its disagreement with the Hyde amendment (ibid.). That motion was defeated, 35 voting for it, 53 voting against it, 9 not voting (S 14569-70). Senator Bayh then moved that the Senate insist on its disagreement with the Hyde amendment and authorize the Chair to appoint conferees on the part of the Senate; Senator Church explained that his vote for the motion would be based solely on the failure of the amendment to except abortions "to save the life or preserve the health of the mother," and Senator Javits presented a letter from the New York City Health and Hospitals Corp. urging deletion of the Hyde amendment as having the primary effect of denying to medically indigent women access to abortions even to save life (S 14570). Senator Bayh's motion was carried by essentially the same vote as that by which Senator Helms's motion lost (S 14570-71).
The Senate having insisted and appointed conferees for the committee, the House on August 26, 1976, appointed conferees as well (H 9087-88).
Mr. Flood submitted the Conference Report on H.R. 14232 to the House on September 15, 1976 (H 10126-27). Technically it was a report of disagreement since the Senate amendment deleting the Hyde amendment was neither agreed to nor receded from but it incorporated a Joint Statement of the managers reflecting the action agreed upon. The agreement in the statement was that the House managers would offer a motion to restore Section 209 amended to read (as it was finally enacted) as follows:
"Sec. 209. None of the funds contained in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term."
And the Senate managers agreed to move that it concur in that amendment of the Senate's amendment. The relevant text of the Joint Statement read (H 10127):
"Most certainly, this is a difficult, emotionally charged issue one which many believe should be dealt with by the appropriate legislative committees.
"Nevertheless, in an effort to resolve this issue and avoid further delay in meeting the vital needs addressed by programs in this bill, a majority of the Conferees have agreed to a modification of the House bill language.
"It is the intent of the Conferees to limit the financing of abortions under the Medicaid program to instances where the performance of an abortion is deemed by a physician to be of medical necessity and to prohibit payment for abortions as a method of family planning, or for emotional or social convenience. It is not our intent to preclude payment for abortions when the life of the woman is clearly endangered, as in the case of multiple sclerosis or renal disease, if the pregnancy were carried to term. Nor is it the intent of the Conferees to prohibit medical procedures necessary for the termination of an ectopic pregnancy or for the treatment of rape or incest victims; nor is it intended to prohibit the use of drugs or devices to prevent implantation of the fertilized ovum.
"Furthermore, the proposed language would not interfere with or limit Federal aid to medical schools conducting research into, or teaching of, abortion procedures for therapeutic purposes.
"The Congress is aware that there are three cases related to this issue to be heard by the Supreme Court this fall, and wishes to make clear that the Congress in its action upon this particular appropriations bill does not intend to prejudge any constitutional questions involved in those cases."
Mr. Flood called up the Conference Report on September 16, 1976, and moved that the House recede from its disagreement to the Senate's amendment deleting original Section 209 and concur in the amendment with an amendment restoring Section 209 amended to read as quoted just above (H 10312). Urging support for his motion, Mr. Flood explained the Conference action and Section 209 in these terms (ibid.):
"This has been the most difficult conference, believe me, the most difficult conference that I have ever experienced in my public life.
"We met repeatedly with the Senate conferees day after day for many, many hours. The House conferees insisted that they could not, and would not, recede from the clearly stated position of a majority of the Members of the House that HEW funds should not be used to pay for abortions. We proposed a modification of the Hyde amendment to permit payment for abortions only in those instances where it is necessary to save the life of the mother. The Senate conferees attempted repeatedly to persuade us to agree to language which we believed would leave the door open to payment for abortions in cases where it is not a true medical necessity. We rejected all such proposals. Finally, the House and the Senate conferees agreed to accept a proposal made by the gentleman from Massachusetts (Mr. CONTE) that the language be amended to read: "None of the funds contained in this act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term.
"As far as I am concerned, this language means essentially the same thing as the language which I originally proposed to permit abortion only in cases where necessary to save the life of the mother. For that reason, and for that reason alone, I was able to accept it."
Mr. Flood strongly urged the President and the Secretary of HEW "not to permit this legislative provision, now whose intent is clear and unmistakable, to be emasculated by any regulations or interpretations," and he concluded (ibid.):
"I am convinced that if it is properly administered by the Department of Health, Education, and Welfare, it will bring about a substantial reduction in the number of abortions performed for nontherapeutic reasons."
Mr. Conte, supporting the motion, stated that the language "did not prohibit abortions per se; there is serious doubt whether such a prohibition could be made except through a constitutional amendment" (H 10312-13). He argued that Section 209 prohibited federal funding of abortions, not the performance of abortions, and he used the language of the Joint Statement to explain the amendment (ibid.). Mr. Conte said he thought Section 209 the best possible compromise, and he emphasized that prompt action was required if the Congress was to have the opportunity before its planned adjournment on October 2 to override the expected presidential veto, for the bill appropriated $ 4 billion above the President's budget (ibid.). Mr. Conte, author of amendments increasing the funding for mental health and other programs, said that he would vote to override the veto (ibid.).
Mr. Obey supported the amendment (H 10313-14). But he devoted his speech to a strong condemnation of the action of the American Council of Catholic Bishops in intimating a preference for a presidential candidate on the one issue of abortion. Mr. Obey said:
"The Council of Bishops has the same right as any other organized group indeed they have an obligation to speak out on moral issues which confront the Nation. But, when they collectively or individually, in and through their roles as officials of the Catholic church, go beyond that by leaving the implication that they prefer a Presidential candidate because of his position on one issue, to the exclusion of all others, they make a serious mistake for the church and a mistake for the country.
"One of the foundations of American freedom has been the tradition, rooted in the first amendment to the Constitution, which draws a hard firm line between church and State. That line stands as the one sure protection of all churches against the heavy hand of government and against the domination of public affairs by any one organized church.
"But, because I do care about the church, and even as I support the amendment I feel it necessary to object to the bishops' political statement in my individual capacity as a Catholic and in my public capacity as a public official who happens also to be a Catholic.
"In my private capacity as a Catholic, I must object because I believe the bishops' action will produce a backlash against the church and is distorting Catholic values in the eyes of the American people. The action of the Catholic bishops in appearing to be subtly blessing the candidacy of one candidate for President simply on the basis of his position on abortion, even though that difference is one of tactics, not substance, and even though the other candidate is extremely close to the church on a great number of other moral issues, is a negation even though unintentional of what the church has always stood for concern about poverty, about racial justice, about hunger, and other areas of social justice."
He quoted the President of Georgetown University (Rev. T. S. Healy) as condemning the reduction of all the issues in a major political contest to a single issue, and expressed the view that the bishops should not make any pronouncements about candidate preferences, and denied "the wisdom or the right of the official leaders of the Catholic church to pressure public officials, be they Catholic or not, into taking certain actions on matters of political strategy" (ibid.) Mr. Obey said he happened to agree with the Church position on abortion, but that he was voting for the amendment not because he was a Catholic but because he thought it sound public policy, although he said:
"I believe it should have given physicians more latitude in determining medical necessity, because the last time I looked, the physicians seemed to know a little bit more about medical requirements than the politicians. But I am willing to accept this language in order to save this bill and in order to try to keep this country together on this most divisive and emotional issue and I hope you are too."
He repeated that the Catholic Church "was operating outside of their own realm of competence" when its leaders (or those of any other church) tried to bring their collective weight to bear in a debate between public officials over such a question of strategy as whether a constitutional amendment or some other form of action is the more appropriate response of government to the abortion question.
Mr. Hyde deplored the reference to the Council of Bishops-Carter-Ford-abortion controversy, saying that it started with Carter's invitation to the bishops (H 10314). He supported the amendment as a compromise embodying the essentials of what he intended; he said (ibid.):
"No one, least of all myself, denies the hardship and even in some cases tragedy that can result from an unwanted pregnancy. The issue, however, is whether the avoidance of this hardship is worth the killing of a human life. The issue is the nature of the sacrifice to avoid this hardship."
Mr. Hyde objected to the Joint Statement's language about not prejudging the Maher and Beal cases as gratuitous and irrelevant (ibid.). After referring to environmentalists' concern for the animal and the inanimate, he concluded (ibid.):
"The unborn possess this distinction they are human and, if not killed by some physician, then life and thought, emotion and choice, love and reason, will go on inside them.
"I do support this amendment, not because it is perfect, but because it is the best attainable. Many human lives will be saved, and this is no small achievement.
"This language says that human beings are not mere commodities to be manipulated, exploited, or thrown away. This language tells the social and biological engineers that this Congress still believes that human life is unique in creation and possessed of dignity."
Ms. Abzug, opposing the motion, contended that the amendment was discriminatory class legislation and unconstitutional; she wondered that the House did not await the Supreme Court's decision in the Maher and Beal cases, and charged (ibid.):
"What the Members supporting this amendment are challenging is a Supreme Court decision with which they disagree. And even though they disagree with that Supreme Court decision with which they have a right to disagree this is not the way to change it. We cannot change a Supreme Court decision interpreting the Constitution of the United States by an amendment to an appropriation bill. If you want a constitutional amendment, then fight for that. But I think this is an error, an inappropriate way to legislate. I believe the Court will strike it down."
She termed the amendment cruel to those who cannot help being poor, arguing that the Supreme Court had made the question of abortion one to be decided by the woman, not by the clergy nor by Congressmen (H 10314-15). She noted that the cost of denying abortion, in child care and after-care following self-induced or other illegal abortion was great, and that as a result of the amendment some would die (H 10315). She argued that the amendment precluded abortion for the victims of rape and incest, as well as for genetic deformity, and that the language "where the life of the mother would be endangered" would leave doctors and the states uncertain of their rights (ibid.). She urged sending the issue through regular committee procedures, especially in light of the expected Supreme Court decision in the Maher case (ibid.). Contending that the opponents of abortion knew that the only way to outlaw abortion was by constitutional amendment, she appealed to the Members "not to penalize those who are pregnant and poor and outlaw abortions for them when other women will continue to obtain safe, legal abortions" (ibid.). She asserted that a recent New York Times poll indicated that 67% of the respondents believed that the abortion decision should be left up to the woman and her doctor (ibid.) She said that the amendment exhibited poor draftsmanship and she characterized as deceptive the use of one kind of language in the amendment and of stating the exceptions to the amendment's language in the report (ibid.).
Mr. Fraser opposed the amendment, saying (H 10316):
". . . the medicaid program was designed to buy comprehensive medical assistance for the needy and for the indigent of this country. For us to say what the medical procedures should be and to say what is available to the indigent and the near poor is, I think, invidious discrimination, and it ought to be stricken down."
He predicted that enactment of the amendment would result in increased illegal abortions and a corresponding rise in abortion-related deaths, a chaotic situation affecting reimbursement to the 47 states and the District of Columbia which then reimbursed for abortions, and further lawsuits like the number which had already raised the issue presented in the Maher case (ibid.).
Mr. Bauman supported the amendment; he noted that years of efforts to bring a constitutional amendment concerning abortion to the floor had been unsuccessful, and said the amendment was a valid limitation in an appropriation bill and not an invalid prohibition (ibid.). "Why," he asked, "should Federal taxpayers' funds be employed to murder the unborn?" (ibid.). The lives involved are those of "defenseless human beings," and the cruelty involved is not toward the impoverished mothers but "the brutal denial of life itself" (ibid.). He said that the nation may have arrived at the milestone other nations had reached, that of no longer caring about the right to life; the argument (as he characterized it) of "inconvenience" can be extended "to the elderly or to the ill, those who just happen to be in the way of the majority, those who disagree" (ibid.) He disagreed with Mr. Obey on the role of the clergy, saying (ibid.):
"Let me add that the gentleman from Wisconsin (Mr. Obey) has the right to express his opinion as he did earlier in debate but I must suggest, he is mistaken in his view. There should be no indictment of the right of Catholics, Protestants, or Jews or anyone to raise moral issues within the political process. It is well that burning issues have a full airing. Those in places of leadership in our churches, whatever their denomination may be, should be able to step forward and make their views known on an issue so basic as the right to life. It would be immoral to shirk this duty."
Mr. Giaimo opposed the amendment as denying a woman her constitutional entitlement "if she happens to be poor" (ibid.). Characterizing the amendment as unfair, he concluded (H 10318):
"The easy vote, I believe, would be to vote in favor of this amendment in order to duck the issue. The only ones who will be angry with us will be some poor unknown women. I do not think that is right, and I think we should vote down this amendment."
Mr. Pritchard said that the amendment represented not compromise but capitulation; it did not take care of rape victims (ibid.). He expressed confidence that the Supreme Court would find the amendment invalid (ibid.).
Mr. Oberstar supported the amendment; he said that "the right to life" was not primarily or exclusively a religious issue, that it was a human rights issue (ibid.). Noting that the President had a minimal role in constitutional enactment, which depended on the Congress and the state legislatures, he continued:
"It is, therefore, to the Congress, and the State legislatures, that the people of this country, including the Catholic bishops, the Protestant ministers, the rabbis and the Mormons should pay their attention not to the Presidential candidates, on the issue of a constitutional amendment to protect life.
"This vote is not on the issue of poverty or discrimination, this is a human rights issue, the rights of the voiceless and the voteless the unborn. So I ask my colleagues to vote today for those who cannot vote; vote for life; vote for the unborn."
Mr. Roncalio opposed the amendment: formerly a prosecutor, he had conducted prosecutions for illegal abortions, and remembered that some mothers had died from infections from the illegal abortions (ibid.). The abortions would go on whether or not there was federal funding, he said, but he thought it unjust to say that the poor can no longer have their abortions in hospitals, and that they would then have the abortions in the back alleys (ibid.).
Mr. Michel invited support of the conference amendment (H 10317-18), Mr. Frenzel announced his opposition, and Mr. Levitas announced his support on the ground that the conference amendment allowed the therapeutic abortions he was concerned for (ibid.). Mr. Reuss supported the conference amendment in the expectation that the conference report language would govern the amendment; he said that he had concluded that he could not support a right to life amendment; he said (ibid.):
"For example to deny to a State the power to legalize an abortion so as to arrest the fertilization that has taken place as a result of rape or incest, or where it is deemed by a physician to be a medical necessity, seems to me to disregard other important human rights the right of a mother to her health, and the right of a family whose maternal leader has been the subject of rape to avoid the consequences of a violent fertilization."
Mr. Flood's motion for the House to recede and concur in the Senate amendment with an amendment putting Section 209 in the form quoted above (page 763) was carried by a vote of 256 in favor, 114 opposed, and 60 not voting (H 10318-19).
The Senate took up the Conference Report on September 17, 1976 (S 16111), and Senator Magnuson reported on the status of the bill generally and noted that much time had been spent to reach language on abortion funding which might or might not be regarded as a compromise (S 16112).
Senator Brooke said that he could not in conscience vote for the revised Hyde amendment or recommend that his colleagues do so, although, he said, "the conference result is better than the original version" (ibid.). He found that the conference amendment discriminated against the poor who must rely on medicaid (S 16112-13). He expressed his conviction that Section 209 was invalid and that the Supreme Court would so hold, as the lower federal courts had held in the parallel state cases, but he stated his concern for the interim before the Supreme Court decided the issue; it was, he said, vital that HEW understand the intent of the conference action so that the administration was not to the detriment of those most directly affected (S 16113). He noted the provision permitting abortion where life would be endangered and the diseases mentioned as life-endangering in the conference report, and said that he would include "instances where suicide may be a concern" (ibid.). He emphasized the conference report language, language which he had proposed and he said that it was incumbent on him "to make crystal clear the intent of my language" (ibid.). Senator Brooke stated that he viewed the report's mention of multiple sclerosis and renal disease as "opening the door to other diseases," and he called attention to the report's exclusion from the prohibition of Section 209 of "treatment of rape and incest victims" and of the use of drugs or devices to prevent implantation of the fertilized ovum (ibid.). He insisted that the language of the bill and that of the report were "inextricably linked" (ibid.). He concluded that the amendment was unconstitutional and unconscionable and that he would vote against it (ibid.).
Senator Magnuson said he would support the bill as amended because of the overriding importance of funding all the HEW programs, but that he would have voted against the conference amendment if it had been presented as a separate bill (ibid.).
Senator Packwood opposed the amendment, saying that it was not a compromise (ibid.):
"There is simply no constitutional way, in light of the 1973 Supreme Court decision, to compromise, condition or qualify every woman's right, rich or poor, to obtain an abortion during her first two trimesters of pregnancy. I am disappointed and, frankly, disgusted, with the language the conference has agreed to."
He stated that the amendment in no way resolved "the moral questions involved with this issue" (ibid.). He repeated the argument that it discriminated against the poor, and that it would not prevent abortions, but remit the poor women to illegal abortions and the risk of death (ibid.). He asked the Senators to reject "this backward, anarchistic, and unfair abortion provision"; he noted that in discriminating against the poor it disproportionately discriminated against poor black women, and he asserted that it was "the worst example of socially unjust legislation this Congress could ever hope to put into law" (S 16113-14).
Senator Stevens supported the amendment; he was concerned to make it clear that the amendment did not alter state abortion law, but provided only for the circumstances in which the federal government would reimburse the states for abortions performed in compliance with state law and for which the state provided funding (S 16114).
Senator Bayh said that he would vote for the amendment, but emphasized his distress in so doing lest the action of Congress prejudice the decision of the Maher, Beal and Poelker cases; he anticipated that the language of the amendment would be open to attack in the courts in the light of the lower court cases decided in the state context (ibid.). He incorporated in the Record a July 22, 1976, letter of the Commission on Civil Rights urging defeat of the Hyde amendment (in the original form) and a Memorandum on the constitutionality of legislation barring federal funding of abortions prepared in the American Law Division of the Library of Congress, concluding that such legislation would be invalid (S 16114-19), and expressed the hope that the Supreme Court in determining the Maher, Beal and Poelker cases would consider the report's statement that the Congress in enacting the bill did "not intend to prejudge any constitutional issue questions involved in those cases" (S 16114). Senator Bayh drew attention to the language of the Conference Report, and said that, although the conference amendment was better than the original Hyde amendment, it was certain to be challenged in the courts; he expressed confidence that it would be held unconstitutional, but observed that, meanwhile, it was important to fund those vital programs of health, education, and welfare (ibid.).
Senator Schweiker supported the conference amendment, pointing out the nature of the exceptions to the prohibition of funding, and said (S 16119):
"I think that the funding of abortion on demand by the Federal Government has been a very unfortunate development in recent years. I hear from thousands of Pennsylvanians who tell me that it is bad enough that abortion has been legalized, but they are personally insulted that their tax dollars are being used to pay for these operations. I am glad that this situation will now come to an end with this amendment."
After referring to the result of the conference deliberations, he concluded (ibid.):
"What we made clear is that abortions for family planning purposes, abortions for social convenience, or abortion-on-demand in general will not be paid for out of the Federal Treasury. I have supported this position in the past, and I am very pleased that it is about to become part of the law."
Senator Helms stated (S 16119-20) that the test involved in the prohibition was "a simple one," that is:
"Is the physical existence of the mother endangered."
"However, this provision does not permit funding for abortions as a method of family planning, or for emotional or social convenience or for general health reasons when those reasons do not directly endanger the mother's life.
"Neither does it permit funding for abortions where pregnancy resulted from rape or incest unless the life of the mother is endangered by that pregnancy. The intent of this provision is clear. It is to restrict the use of Federal money for abortion. In doing so it carves out a single, limited exception and nothing more."
Senator Helms asserted that, despite the statement about prejudging constitutionality in the Conference Report, the Congress would implicitly uphold the constitutionality of the amendment by adopting it (ibid.).
Senator Bartlett expressed pleasure that the major concern of the Senators had been eliminated through the inclusion of "the "life of the mother' clause"; the amendment, he stated, would clearly state "congressional policy on the whole question of using taxpayers' money to pay for abortions" (ibid.). He noted the language was almost the same as his amendment to an earlier appropriation bill that had passed the Senate in 1974 (ibid.). Senator Church stated that the conference amendment, "together with the intent as explained in the conference report," met his earlier-stated objections to the original Hyde amendment (ibid.).
The motion to concur in the conference amendment was carried, 47 voting in favor, 21 opposed, and 30 not voting.
The President vetoed H.R. 14232, and his veto message said in part (H 11848):
"I am sympathetic to the purposes of most of these programs. I agree with the restriction on the use of Federal funds for abortion. My objection to this legislation is based purely and simply on the issue of fiscal integrity."
The House debated whether to override the veto
on September 30, 1976 (H 11846-60). During the debate Ms. Abzug said that she would vote to override, but said (H 11850):
"Mr. Speaker, I do want to make this point, however, that I believe this bill contains a provision which is unconstitutional, discriminatory and ill-considered legislation. We provide in this bill for medical and health services for poor people. We provide for family planning, health and hospital care. Yet as we provide Federal funds for seeing to it that pregnancies come to fruition for poor people, we take away the same rights that poor people have to terminate those pregnancies by refusing to provide funds for abortion. I believe this provision is unconstitutional. I do not believe it even belongs in this legislation."
Mr. Hyde announced that he would vote to override, saying (H 11855):
"Mr. Speaker, I am voting to override the President's veto of H.R. 14232 with enormous reluctance, because every criticism the President made of this legislation in his veto message is absolutely correct. The $ 4 billion spending over the President's budget request is a dangerous refueling of inflation, and those of us who recognize inflation as the major threat to our Nation's economic stability bear a heavy responsibility when we vote to override.
"I am, nevertheless, voting to override the President's veto because within this legislation is a provision forbidding the use of Federal funds to pay for abortions. In starkest terms, the potential exists of saving some 300,000 lives which otherwise might be destroyed with the use of taxpayers' funds. The saving of these lives far outweighs the economic considerations involved in this legislation. It is unfortunate that the choice is between a sensible veto and the saving of so many human lives, but human life cannot be measured in terms of dollars, and so my choice is as clear as it is unpleasant. I reluctantly vote to override the President's veto."
Mr. Brademas stated that he, too, would vote to override, but reiterated his opposition to the Hyde amendment (H 11856)
". . . which restricts the freedom of poor women to exercise their constitutional right to choose an abortion in all the previous debates. It is an inappropriate way to legislate on a constitutional question. Although I will vote for this bill, I will continue to oppose this discriminatory provision in the courts and plan to serve as cocounsel in suits challenging this provision in New York and Washington, D.C. I disagree with the President's veto and I also disagree with his veto message which supports the denial of Federal funds for abortion.
"A majority of Americans believe the abortion decision should be left up to the woman and her doctor, free from Government interference. This must apply equally to poor women as well as rich women. It will now be left ...