UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK
January 15, 1980
Cora McRAE, Jane Doe, Mary Doe, Susan Roe, Ann Moe, Individually and on behalf of all others similarly situated; Planned Parenthood of New York City, Inc.; and Irwin B. Teran, M. D., Jane Hodgson, M. D., David B. Bingham, M. D., Hugh Savage, M. D., Edgar W. Jackson, Lewis H. Koplik, M. D., Individually and on behalf of all others similarly situated; Women's Division of the Board of Global Ministries of the United Methodist Church, Theressa Hoover, its Associate General Secretary, Ellen Kirby, its Executive Director, Plaintiffs,
Joseph A. CALIFANO, Jr., Secretary, United States Department of Health, Education and Welfare, Defendant, and Senators James L. Buckley and Jesse A. Helms, Congressman Henry J. Hyde, and Isabella M. Pernicone, Esq., Intervenor-Defendants. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Plaintiff, v. Joseph A. Califano, Jr., Secretary, United States Department of Health, Education and Welfare, Defendant
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."
He concluded (ibid.):
" . . . 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.
"I am a Catholic . . . .
"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."
He added (S 16120):
"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 to the courts to vindicate this basic right of privacy."
Mr. Badillo gave his vote for overriding, saying in part (H 11858):
"It is not the bill I would have proposed, nor does it begin to address the critical needs of the American people in any realistic fashion. Added to that, the so-called Hyde amendment which blatantly discriminates against poor women who seek abortions, is not only abhorrent to me, but unconstitutional as well. However, it is the best bill we could get, and it does provide continuation of many social programs welfare, bilingual education, health care programs that are so desperately needed by our citizens."
The House passed the bill over the veto by a vote of 312 in favor of overriding, 93 opposed, 25 not voting. On the same day, September 30, 1976, the Senate, advised by the House that the bill had passed by two-thirds vote, debated whether to override (S 17296-304). In the course of the debate Senator Brooke, supporting a vote to override, said (S 17297):
"In making this recommendation, I am fully aware that this generally excellent bill does have an important defect. I refer, of course, to the restrictive Hyde language on abortions. That language has no place in this bill, and I fought hard to have it removed completely. I am convinced that the Hyde amendment is unconstitutional and that the Supreme Court will so rule."
Senator Brooke then emphasized again his view of the importance of administering the amendment in the light of the statement of intention in the Conference Report as indicated in his floor statement of September 17th (ibid.). Senator Javits concurred in the views of Senator Brooke (ibid.).
Senator Helms, supporting the President's veto on broad monetary and social grounds, argued that the bill mistakenly supposed that human problems could be solved by spending the taxpayers' money, that the tendency to equate a politician's compassion with his willingness to spend other people's money to alleviate human ignorance and misfortune was mistaken, and that problems are only solved when people solve them, benefactor and recipient joining in charitable and mutual actions (S 17298). He continued (S 17298-99):
"Although some material difficulties may be alleviated for some individuals temporarily, the long-term result is the degeneration of the moral character of all levels of society. And no society can long maintain itself when both the "haves' and "have-nots' no longer feel any responsibility to support moral values.
"A case in point is the use of Federal funds to pay for abortions, an action which has never been approved by Congress, but which has been initiated by bureaucrats through their own interpretation of court decisions. It is highly offensive to millions of our citizens that their money should be used for the calculated taking of innocent human life. Yet others, supposedly out of human compassion, are advocating the taking of innocent human life because it will be cheaper to kill a child before the child becomes a continuing tax burden. Meanwhile, the easy availability of tax-paid abortions removes one of the last sanctions against immoral activity in our society."
Senator Helms asserted that "the same kind of moral distortion" that the amendment "sought to correct in just one small area of the bill" was "rampant throughout all of HEW's programs to a greater or lesser degree" (S 17299). He expressed confidence that if the veto was sustained and a fiscally acceptable bill drawn, it would "leave the Hyde amendment intact" (ibid.). He recommended against voting to override for the sole purpose of enacting the Hyde amendment into law, saying (ibid.):
"We must not allow the big spenders to hold the Hyde amendment hostage while they attempt to pass exorbitant appropriations. The Senator from North Carolina will not succumb to that kind of blackmail, because nothing can vitiate a moral issue more quickly than to allow it to become a bargaining chip in cynical political dealings."
Senator Hansen supported the President's veto and his stand on funding abortions, but appeared also to agree with Senator Brooke's position on the conference abortion amendment, although he had voted for the bill as so amended while Senator Brooke had voted against it (ibid.)
Senator Packwood said (S 17303) that he would vote to sustain the veto, although he supported most of the programs in the bill, because
". . . I cannot in good conscience support this bill because of the provision added in the conference with the House prohibiting the use of Federal funds for abortion.
"In this particular case, I regard the addition of the prohibition on the use of Federal funds for abortion as so immoral, so distasteful, and so clearly unconstitutional that I cannot support the entire bill. It is my hope the veto will be sustained and a new bill will be passed with the bulk of the appropriations intact but that the unconscionable limitation on the use of Federal funds for abortion will be eliminated."
The Senate voted to override, 67 to 15, 17 not voting (S 17303-04), and the bill became law as Public Law 94-439 (90 Stat. 1418, 1434).
When the Secretary implemented the law, on August 4, 1977, his ruling, published later in the Federal Register (42 F.R. 40486) and transmitted to all state medicaid agencies, HEW regional officers, Public Health Service Hospitals and grantees, and state medical associations, was in the following terms:
"Section 209 of Public Law 94-439, the Labor-HEW Appropriation Act of 1977 popularly known as the Hyde Amendment provides that:
"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.'
"Last October, a Federal District Court issued an order enjoining the Department from enforcing the Hyde amendment. That injunction has now been dissolved. Accordingly, the Department will provide Federal financial participation in the cost of abortions only where the attending physician, on the basis of his or her professional judgment, has certified that the abortion is necessary because the life of the mother would be endangered if the fetus were carried to term.
"The legislative history of the Hyde Amendment, however, makes clear that the Amendment does not bar funding for certain medical procedures. Specifically, the Conference Committee Report interpreting the Hyde Amendment states as follows:
"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.' (HR Rep. No. 95-1555, at p. 3)
Thus Federal funds will continue to be available for such medical procedures. "Treatment for rape or incest victims' is, however, limited for these purposes to prompt treatment before the fact of pregnancy is established. As in all cases, Federal funds for abortions for rape or incest victims will be available where the physician has certified that the life of the mother would be endangered if the fetus were carried to term."
Cf. Joint Statement from the Conference Report, supra 763-764.
The proceedings in the Congress that led to the enactment by Joint Resolution on December 9, 1977, of the proviso in the second paragraph of Section 101 of Public Law 95-205 (91 Stat. 1460) commenced on June 16, 1977, when a Section 209 in the precise language of the Hyde-Conte amendment of the preceding year was offered as an amendment to H.R. 7555, the Labor-HEW Appropriation bill for the fiscal year ending September 30, 1978 (H 6054).
When, on June 17th, the House turned to that amendment, Mr. Allen objected that it constituted legislation in an appropriation act, the Chair sustained the point of order, and Mr. Hyde then offered a substitute Section 209 forbidding use of the appropriation funds to pay for or promote or encourage abortions "except where a physician has certified the abortion is necessary to save the life of the mother" (H 6082-83). The point of order was renewed by Ms. Holzman, Mr. Allen and Mrs. Burke (California) and resisted by Mr. Bauman, and the Chair again sustained the point on the ground that the proposed amendment would impose on physicians, some of whom were federal officials, new duties, and determinations not required of them by law (H 6083). Mr. Hyde then presented an amendment in the form of the one he had introduced a year earlier forbidding the use of any of the appropriated funds to pay for, promote or encourage abortions expressing regret that he was required to exclude from it the therapeutic exception (H 6083).
Mr. Hyde agreed that it was unfortunate to introduce the abortion issue on an appropriation bill but, he said (H 6083):
"The problem is that there is no other vehicle that reaches this floor in which these complex issues can be involved. Constitutional amendments which prohibit abortion stay languishing in subcommittee, much less committee, and so the only vehicle where the Members may work their will, unfortunately, is an appropriation bill. I regret that. I certainly would like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle-class woman, or a poor woman. Unfortunately, the only vehicle available is the HEW medicaid bill. A life is a life. The life of a little ghetto kid is just as important as the life of a rich person. And so we proceed in this bill."
He argued that the constitutional right to an abortion did not imply a duty on the part of taxpayers to pay for the abortion; he rejected the argument that it was less costly to pay for the abortions than to support the children of the poor; he expressed the belief that, if funding for the abortion was denied, the children would be born and not slaughtered; and he said that he was "prepared to pay the price to see that they get an education, decent housing, and adequate clothing" (H 6084). He criticized pro-abortion editorials that emphasized that the decent, economic, and compassionate thing to do was to let welfare mothers abort their unborn children, saying that it was a human being that was being aborted, and that it was biology, not theology, that said so (ibid.).
He continued (ibid.):
"The old argument that we who oppose abortion are trying to impose our religious concepts on other people is totally absurd. Theology does not animate me; biology does. That is a human life; that is not a potential human life; it is a human life with potential.
"When a pregnant woman, who should be the natural protector of her unborn child, becomes its deadly adversary, then it is the duty of this legislature to intervene on behalf of defenseless human life."
Mr. Hyde contrasted the abortionists, unconcerned for the unborn children, with the concern expressed in legislation for the perpetuation and conservation of animal species (ibid.). In the course of his speech Mr. Hyde had said that "millions of people are concerned about our tax dollars paying for the slaughter of innocent, inconvenient, unborn children" (H 6083), and, later, referring to the charge that antiabortionists were seeking to impose religious concepts, he asked:
"By what right do the pro-abortionists seek to deny us access to the political process?"
Mr. Obey opposed the amendment (H 6084-85), although strongly opposed to abortion ("indiscriminate abortion brutalizes not just the unborn, but all of us") and convinced that payments for abortion could be constitutionally limited, and, wisely, should be so limited, because "I really believe that one of the ways in which we help cement this society together is by trying, as best we can, to avoid offending the moral sensibilities of other people" (H 6085). He thought the amendment proposed was either brutal or inhumane since it did not provide any exceptions for the case in which the life of the mother would be endangered by the pregnancy or where the prospective mother was suffering from renal disease or multiple sclerosis. He said (H 6085):
". . . I think it does not represent what we are supposed to represent if we really believe in equal protection under the law, because what we are really saying is that even in the case where life is in danger, if you are poor, sorry; if you are wealthy, fine you can have an abortion with no difficulty. I do not think we want to say that" (H 6085).
Mr. Obey thought that in the case of renal disease and multiple sclerosis there might not be certainty that the life of the mother was threatened at the moment, but there would be medical certainty that the woman's life would be considerably shortened or she reduced to invalidism; he said that he did not believe that politicians ought to be making those judgments, which, as medical judgments, ought to be made by people who know far more about the specific instances than do practicing politicians who are laymen, in scientific terms (ibid.).
Mr. Bauman favored adoption of the amendment and going to conference as had happened in the preceding year; he did not consider the amendment discriminatory nor unconstitutional but as in fact preserving "a very basic constitutional right, a right that has been stated from our earliest moments of existence as a nation, the right to life" (ibid.).
Mr. Stokes opposed the amendment, referring to the injunction in the present McRae case, and asserting that the amendment "restricts the right of the poor to make their own personal decision with regard to abortion, a right that is guaranteed to all women by the Supreme Court" (ibid.). He contended (H 6086):
"However, refusal to fund abortion services for the poor while willing to pay for prenatal and delivery care clearly destroys Government neutrality in the issue. It means that with regard to the poor, the Government has instituted its own judgment, its own concept of morality, a judgment which we do not and cannot impose upon more affluent women in this country."
Mr. Dornan, supporting the Hyde amendment (H 6086-88), denied the validity of the argument that it discriminated against the poor; he pointed out that Wade v. Roe found a qualified constitutional right of privacy in a woman's decision whether or not to terminate her pregnancy and held that the imposition of criminal sanctions upon the exercise of the right in favor of abortion could be constitutionally justified only by a compelling governmental interest; that holding, he said, fell far short of requiring the federal government or the states to pay for the abortions. He contended (H 6086):
"The Court-ordered "right of privacy' is not affected in any way by the Hyde Amendment. It is not that the Hyde amendment denies a woman's right to privacy but that it does not enhance the value of that right by paying for its exercise. The government has no constitutional obligation financially to facilitate the exercise of privacy rights. The Federal Government must merely refrain from violating such rights and the Hyde amendment does not violate any privacy rights. It simply denies Federal funds for the realization of a personal, subjective decision and judgment."
Mr. Dornan argued further (ibid.) that Roe v. Wade and Doe v. Bolton did not vindicate a "right" to receive an abortion but rather the right to be free to seek an abortion without governmental penalties or interference. To the equal protection argument he answered in terms of the Solicitor General's brief, stating that, in eliminating federal funding for elective abortions, Congress was motivated by two legitimate concerns, to protect the potentiality of human life, and to avoid spending federal funds to support an activity many taxpayers felt to be morally repugnant; these concerns, he said, constitutionally justified the distinction Congress drew between abortion and childbirth (ibid.). He argued that Congress could properly take considerations of morality into account in allocating social welfare monies contributed by taxpayers whose moral views were being respected; he continued (ibid.):
"Moral considerations historically have played an important and legitimate role in legislative decision-making. For example, such considerations underlie most legislative proscriptions against "victimless' crime, such as prostitution and gambling."
He rejected the discrimination argument on the ground of the Solicitor General's argument that the fact that a woman had a qualified right to an abortion did not imply a correlative constitutional right to free treatment. He referred to the decision in the present McRae case on the injunction as based on the erroneous proposition that the legislature lacked constitutional power to resolve controversial issues in favor of either of two contending sides and as amounting to an attempted judicial appropriation of funds in violation of the Constitution (H 6087). Answering the supposed argument that the amendment should be defeated because abortion was less expensive for the government than childbirth, Mr. Dornan pointed out that, while that might have been the only factually correct argument made by the anti-abortionists, it was morally unthinkable (ibid.). He asserted that to his knowledge some of the conservative members of the Congress supported pro-abortion legislation as a means of controlling the growth in the population of blacks, Puerto Ricans or other Latins or whomever they thought should not bear more than a polite one or two "burdens on society" (ibid.). Saying that Communist countries were opting for life rather than death and encouraging childbirth, he closed by saying (H 6088):
"Why are we going in the opposite direction? Materialism? Decadence?
"I close with this thought, that in this beloved Nation of ours we are now making war on our young. When will we pass a bill to stop three-and-four-year-old children from being used in loathsome pornographic films, when will we begin to mandatorily put drug pushers in jail who kill off our youth, and when will we stop pleading to subsidize death as a right for the poor just because some, repeat some, rich people decide to terminate the lives of their posterity. I beg you to support this amendment for life . . . ."
Mr. Eckhardt opposed the amendment as too important for consideration as an amendment limiting an appropriation, which had to be dealt with peremptorily on the floor of the House, and as being discriminatory and the more seriously so in denying to the poor woman, the person who is most subject to every difficulty, including rape and ill-health, the equal protection of the law (ibid.).
Mr. Rudd supported the amendment (ibid.) on the ground that it was not discriminatory against the poor people because there was no individual right to an abortion any more than to face-liftings or hair transplants, and that it is discriminatory against taxpayers who oppose abortion on religious and other grounds to make them finance abortions. To the argument that women should have freedom of choice about childbearing he answered that they should choose not to become pregnant and should not ask the taxpayers to pay for their failure to exercise that choice (ibid.). He characterized the preliminary injunction decision in the present case as a foolish and wrong attempt to exercise the congressional power of appropriation (ibid.).
Mr. Rose opposed the amendment; he said that the amendment concerned poor women, concerned the few who are on medicaid, and that "the greatest sin that we can commit is the bringing of life into existence in an environment in which it can neither be wanted nor loved" (H 6089). He said that if one's religious convictions told him that abortion was wrong, he should honor them but not impose them on the poor women of the nation for that would be "strapping discrimination" (ibid.).
Mrs. Fenwick, while expressing great respect for the Right to Life advocates who came to Washington at great expense to express an opinion about something they believed to be of enormous importance, regarded the amendment as discriminating on money grounds, condemning the helpless, while those with means have legal and proper procedures open to them (ibid.). She argued that the amendment would not stop abortions but send the people to motels and abortion mills with the consequence that the victims would turn up in hospitals some-times dying of infection or hemorrhage (ibid.). Mrs. Spellman opposed the amendment because it did not provide for abortions necessary to save the life of the prospective mother.
Mr. Pritchard opposed the amendment; he said that many wanted the government to manifest neutrality on abortion by not paying for abortions; but he argued (ibid.):
"The truth of the matter is that today if a poor or welfare woman wants to terminate a pregnancy, we give her somewhere between $ 175 and $ 190 to pay for that abortion. If she wants to carry that pregnancy forward and produce a child in 9 months, we come up with $ 2200. That is over ten times as much money from the taxpayer that goes to allow that woman to carry the child to term if she wants to.
"So right now we are in a neutral position, and if anything, we are on a 10-to-1 basis, encouraging the woman to carry that child to term."
He contended that the amendment would end government neutrality and that to do so was wrong (ibid.). He rejected the argument that people should not be forced to finance expenditures repugnant to their religious views by saying that all citizens are required to pay taxes to support many things to which they are violently opposed (ibid.).
Mr. Young (Missouri) supported the amendment, arguing that the country discriminated against the poor not by failing to provide free abortions but by failing to help attain satisfactory housing, employment, and education (ibid.). Mr. O'Brien favored the amendment on the sole ground that as a matter of scientific, biological, and medical fact life begins at conception (H 6090).
Mr. Allen opposed the amendment, saying that it would operate "to deny to many of the poor children, some little teenage or sub-teenage children, any relief whatever from the plight in which they find themselves, some of them being pregnant as a result of incestuous relations forced on them by . . . some . . . male member of their family" (H 6090); he contended that the House must recognize that there are circumstances in which children of poor, welfare families are entitled to some measure of relief from their plight (H 6090).
Mr. Edwards (Oklahoma) recognized that people who have less money have limited options; he noted that a number of the black Members of the House seemed to feel a need to oppose the legislation, and said that the black people in his district did not support abortion; he pointed out that those in the House who generally considered themselves liberal were opposed to the amendment, and he added that there had been a long process of turning around the definitions of liberal and conservative; but that "there is nothing liberal, nothing humane, nothing compassionate about snuffing out the life of an unborn child" (ibid.).
Mr. Volkmer strongly supported the amendment; he asserted that the Congress could constitutionally prohibit the use of tax dollars to promote and perform abortions; he continued (ibid.):
"For the moral values of this Nation we must do so. As the Members know, I have sponsored a resolution to prohibit abortions except to save the life of the mother. I have been unable to obtain a hearing from the subcommittee chairman on that resolution. I will continue to struggle against abortion and one way to do so is to adopt the Hyde Amendment.
"Personally I strongly support the right to life of every human, born or unborn. To me, promotion of abortion is a sign of decay in the moral values of our Nation."
Referring to the increased number of teenage pregnancies, he attributed this "to the policy statements of the Supreme Court which now permits permissiveness in our movies, magazines, store signs, newspapers, everywhere suggestive sex material is thrown at our teenagers, along with the information and knowledge that if one becomes pregnant that abortion will be available to take care of any unwanted pregnancies" (ibid.). He said (ibid.):
"We must stop abortion in this Country . . .
"I am appalled by the proponents of abortion and hope as good people they will see the error of their ways."
Mr. Mazzoli supported the amendment but in concluding his statement, and offering into the record two magazine articles opposed to abortion, he said (H 6090):
"Finally, Mr. Chairman, those who today suggest the Hyde language would strengthen their position and answer the "one-issue' charges leveled against them if they were to support, as vigorously, day care centers for children, increased funding for education, job programs and other such programs which provide women with the economic, social and educational support needed to encourage them to carry babies to term and to support and nurture them after birth."
Mr. Kindness said that it was the right and duty of Congress to determine the policies of the country, but that the courts had been doing that in the absence of strong expressions from the Congress, such as the Hyde amendment of the preceding year; he characterized as specious the argument that the amendment discriminated against poor women, saying that "if we want to help poor women, then we should eliminate poverty, not eliminate humans" (H 6092).
Ms. Holtzman, opposing the amendment, said that the decision would not be before the House to be made if the membership were as overwhelmingly made up of women as it was at present overwhelmingly made up of men; she said that those supporting the amendment were not really confronting the fact that it condemned to death women who would die in childbirth because they could not afford an abortion, nor the fact that the amendment would require 11 or 12 year old victims of rape or incest to endure the trauma of childbirth, nor the circumstances of women who must bear children for whom they could not psychologically or economically provide (ibid.).
Mr. Hillis, although opposed to abortion, was opposed to the amendment because it did not contain exceptions to cover cases involving the life and health of the mother nor cases of rape or incest (ibid.).
In response to a question from Mr. Pritchard, Mr. Flood said that the House had no specific data from DHEW over the comparative costs of abortion and childbirth, and he added that
". . . it is very clear from the debate that has been going on so far today, and which has gone on time and time again, that money is not the issue" (H 6092).
Mrs. Burke (California) opposed the amendment, saying that it "really should be called the forced childbearing amendment" ; she continued (ibid.):
"I want to tell the Members why overwhelmingly large numbers of blacks are concerned. We are concerned because we do not believe that young girls should be forced to have children. We do not believe in a society where no one is willing to feed those children after they have them and that they should place those children in poverty. We also regret the fact that those children do not have a chance to get adopted, because there are no adoptive homes available for little black girls and boys who are born in poverty."
She said that one-third of the medicaid abortions were performed on teenagers who do not get information, education, family planning, or other things spoken of during the debate; she reiterated that the House was "forcing girls to have children who not only do not want them but who cannot really go through that pregnancy" (H 6092-93). "They are the high-risk mothers," she said (H 6093).
Mr. Weiss opposed the amendment, saying that since 1973 one in eleven American women of reproductive age had exercised the right to abortion, yet the amendment sought to limit that by prohibiting the government from paying the cost of abortions (ibid.). He said that DHEW estimated that about one-third of all abortions are paid for by medicaid nationwide; he asked what would happen to the women denied safe, legal and funded abortion who had not the option available to affluent women; he argued that the cutting off of funding would occasion injury and death for women who sought legal abortions or attempted self-induced abortion; he argued (ibid.):
"Legal and safe abortions are the right of every American woman, not just the privilege of a select few. The Hyde provisions stand in moral judgment of, and refuse any safe alternative to, poor women confronted with unwanted pregnancies."
Mr. Allen, without taking sides on the question of abortion itself, wondered if some of those preparing to vote on the amendment realized "the cruelty its literal enforcement would visit upon the poor, the sick, the mentally ill, and the innocent victims of rape and incestuous pregnancies among welfare patients"; he argued that the amendment would foredoom the teenage victim of rape or forced incestuous relations to go through the pregnancy and to bear a child that might be deformed (ibid.).
Mr. Seiberling thought that the amendment clearly violated the Constitutional rights of the poor women who had to turn to public funds to pay for their health care by denying to them a right that the Supreme Court had held all women enjoy; however, his principal concern was with teenage pregnancy: he said that in the preceding year one million teenage girls, 10% of all teenage girls, had become pregnant, that such adolescent woman are biologically unfit for safe and effective childbearing and their babies would experience a mortality rate two or three times that for the average, that their babies were more likely to be premature and of low birth weight, and that the teenage mothers themselves were more disposed to birth-related death, illness, or injury than others (H 6093). He continued (ibid.):
"And in addition to these physical health problems, a majority of pregnant teenagers are mentally and emotionally immature and unprepared to cope with the realities of pregnancy and child rearing. As a result their offspring are likely to suffer the same kinds of deprivations, to a repetition of the pattern.
"According to a nationwide study conducted by Johns Hopkins University, 75 percent of all teenage pregnancies are unintended. While a good number of undesired pregnancies will be carried to term, the wishes of many adolescents to avoid early parenthood is evident in studies showing that about one-third of all U.S. abortions each year are obtained by teenagers."
To Mr. Seiberling the important question was what could and should be done to prevent the problems posed by unwanted pregnancies; working toward that goal would in the end eliminate the need for abortion, he said, but enacting the Hyde amendment would only increase the risks of dangerous self-induced or non-medical abortions for women who cannot afford to pay for medically sound legal abortions; he contended that the real task before the Congress was to develop professional counselling services for the pregnant teenagers, including psychiatric counselling, and said (H 6094):
"In fact, the question of its constitutionality aside, I would find the Hyde Amendment somewhat more palatable if it made exceptions for clinics and health institutions which offered, in advance, objective counselling on the potential consequences of either terminating a pregnancy or carrying it safely to term."
He argued that the Congress could no longer avoid the reality of increased sexual activity among teenagers, "Nor can we punish the problem out of existence," he said (ibid.). Agreeing that abortion was hardly a satisfactory or desirable means of birth control, he concluded (ibid.), "But it is a result, not a cause and it is foolish, to say the least, to suppose that we can improve the moral climate of the country by withholding from a certain segment of our population their constitutional right to equal protection of the laws or the aid, attention and counsel they deserve" (ibid.).
Mr. Mitchell (Maryland) made a statement, authorized by the Congressional Black Caucus and all its members, against the amendment; he reminded the House that he had opposed the amendment in the preceding year on the ground that it would drive women back to illegal abortion with its physical dangers; he said that the members of the Black Caucus believed that the issue posed by the amendment raised a fundamental question of rights in the democracy and, more pointedly, of the rights of poor persons in our democratic system; of the 250,000 to 300,000 who had obtained medicaid abortions in 1975 he said (ibid.):
"Those were women whose only alternatives without those funds would be to have an unwanted child, or obtain an unsafe abortion performed by a nonphysician."
He noted that by far the largest number of abortions were performed without federal funding; Mr. Mitchell then discussed in some detail an opinion of Professor Thomas I. Emerson of Yale Law School furnished to the Black Caucus; he characterized the opinion as providing with exceptional force the constitutional underpinning for what each member knew that the Hyde amendment was discriminatory legislation (H 6094-95). He noted that one-third of those receiving abortions were teenagers, that it is married persons already supporting several children as well as the unmarried who choose abortions at the time of undesired pregnancy (H 6095). He continued (ibid.):
"And, as we know, Black women are disproportionately represented among the poor and are relatively more likely to need the assistance of medicaid to obtain the same abortion that their wealthier sisters will be able to obtain in any case."
Mrs. Schroeder stated that she "violently opposed" the amendment; she went on (ibid.):
"Yes, I love life as much as anyone and unlike many others who have spoken, I am a mother. We are not asking for abortion as birth control but we are asking the Government remain neutral about abortion in the areas, rape, incest, the mother's life, her mental health, her age, and many other things that are private matters between the doctor and physician (patient?). We should not have one standard of care for private patients and another standard for public-care."
Mr. Bauman asserted that in a very real sense abortion is the "final solution" ; he said that after listening to the arguments he thought it came down to "whether or not the Congress of the United States of America is willing now to embrace the morality of Dachau or the common anthill" (ibid.). He said that adopting the arguments of the opponents of the amendment would sanction the elimination of the insane, old people who are judged no longer needed and of those who are inconvenient to society; referring to the characterizations of the amendment as cruel to the poor and wanting in compassion, he said (ibid.):
"What kind of cruelty is it that shows no concern for 1,100,000 murders in the United States last year, 300,000 of them conducted at Federal taxpayers' expense. You tell us how terrible it is for those who are denied abortions. What is the degree of terror for those who are murdered?"
He said that without the amendment the government would deny life to many, and that both the President and the Secretary opposed federal funding of abortions (ibid.). He dared say (ibid.)
". . . that if those millions of children were born and had a chance to speak, voices we will never hear, they too would vote for the right to live."
Mr. Stanton supported the amendment (H 6095); he said that he had learned in the first grade not only the fundamental facts of his religion but, later on, to read the Constitution, and, he continued:
"It seems to me there are certain unalienable rights that come from God and not from man, and among these is the right to life, liberty, and the pursuit of happiness according to the preamble to the Constitution."
He asserted that "this is a question of a moral right" (ibid.).
Mr. Stokes opposed the amendment; saying that he was black and had been poor in this society, he continued (ibid.):
"I sat here and I was appalled yesterday when I watched the U.S. Congress, 23 years after the Supreme Court of the United States said that separate but equal is inherently unequal, put on to an appropriation bill a clause that still, after 23 years, denies little black children in America their constitutional right to go to school in America under conditions of equality.
And I sat in this body today and I have watched the poor in this society, the majority of whom are black and who need these services, be segregated out once again and segmented into a special class in America. It is appalling to sit in this body and watch, after 23 years, the further denigration of Brown against Board of Education and what it stood for."
He concluded that adopting the Hyde amendment would again make minorities and the poor separate and unequal (ibid.).
Mr. Obey opposed the amendment; he said that he was opposed to abortion, but that his beliefs did not require him to say that his government would not provide needed medical assistance to anyone, most especially a poor woman who needs that medical assistance to maintain her own life (ibid.). Referring to those who had argued respect for human life, Mr. Obey said (H 6095-96):
"I wonder where those same voices and votes were when legislation has been on this floor to increase support for family planning so that you can effectively avoid abortion. Where have those same voices been when we have had efforts in this Congress to try to obtain decent day care centers, for instance, so that you have a little bit more ability to convince the woman facing the choice of abortion, or not, to choose the right decision, to choose to carry the child to full term? There are some places in this world where there is one abortion for every live birth. Where have those same voices and votes been on foreign aid legislation which would provide additional family planning, additional food assistance, additional economic assistance so that we can attack the conditions of poverty which lead to those abortions in incredible numbers, not just within our own borders but all around the world?"
He concluded (H 6096), that the amendment would not save lives but would say that the government will not be allowed to help save the life of a living person.
Mr. Flood drew the attention of the House to its earlier and repeated support of amendments essentially similar to the pending amendment; he noted that Presidents Ford and Carter had included similar language in their budget requests, and that Secretary Califano during his confirmation hearing made clear the Administration's opposition to federal funding of abortion (H 6096). Mr. Oakar supported the amendment (ibid.); he said that the issue was very difficult for him
". . . because I know that low income women who are confronted with an unplanned pregnancy are treated abominably in our society. Often they are packed off to abortion clinics without being at all informed on their legal rights, and the benefits and services available to them if they choose to have the child."
He explained his support of an earlier bill that he had introduced to provide assistance for pregnant women, all predicated on his deeply held belief that abortion was wrong and that the government was obligated to do all it could to stop it (ibid.). He continued (ibid.):
"So strong are my feelings on abortion that I had grave reservations about supporting the diluted medicaid fund cutoff that was included in the bill as reported from committee. That provision would have permitted medicaid funding when the life of the mother is in danger, and to me, that language could be construed so broadly as to make the ban on abortion funding meaningless. The proponents of that language admitted that the exception would extend to cases in which psychologists, for example, said the mother's life would be in danger."
He urged the enactment of the Hyde amendment in its then present form, and argued that the House were morally obligated to provide real assistance to low income women faced with an unplanned pregnancy (ibid.).
Mrs. Collins (Illinois) opposed the amendment on the ground that it would not stop abortions but rather limit the availability of safe abortions to poor women, that it would violate the very purpose of the appropriation bill providing services for all Americans regardless of their economic status that it was clearly discriminatory against the poor and would force poor women who could not afford abortions either to bear unwanted children or undergo unsafe, "illegal butchery," and that it could prohibit the prescription of morning-after pills to rape victims at hospitals or crisis clinics which received funds under the appropriation (ibid.).
Mr. Milford supported the amendment in the expectation that it would be modified in conference with the Senate to allow the use of medicaid funds if the mother's life was endangered and in the cases of rape and incest (H 6096-97). He said (H 6097):
"Subsequent to last year's vote, I checked further into the situation to find that few, if any, physicians who perform this procedure would refuse assistance to an indigent person. I have found charitable agencies that were willing to provide assistance. I have found that most persons who find themselves in need of abortion services are usually able bodied and are capable of earning their own living."
He said that he believed it was asking too much of those who are morally opposed to the issue to take their tax money "to fund the very act that violates their religious convictions" (ibid.).
Mrs. Meyner opposed the amendment (H 6097); she said that it was discriminatory, and repugnant not only to the equal protection clause of the Constitution but to the values of American life that the Congress sought to uphold; she contended that the amendment would not stop abortions but deny them to one class of women, the poor ones; she said that District of Columbia clinics charge $ 150 for an abortion while private practitioners charged $ 450 to $ 600 for abortions performed at the hospital. She continued (ibid.):
"It does not require a great deal of imagination to see that poor women will be forced to either carry their unwanted pregnancy to term, or to obtain an illegal or self-induced abortion. Meanwhile, more fortunate women will be able to visit a private practitioner and obtain a safe and legal abortion. Clearly this is not a question of being for or against legal abortions, it is a question of class discrimination."
She contended that to include such an amendment in an appropriation bill was "inappropriate and dangerous" (ibid.); expressing a reluctance to speak in such terms, she noted that economics should be foremost in the Congress's mind in considering an appropriation bill, and that, from that point of view, the Hyde amendment would greatly increase the cost to the government for the first year after birth costs of those women forced to carry unwanted pregnancies to term (ibid.). She concluded by warning Members not to yield to the temptation to vote for the amendment in the expectation that the courts would invalidate it (ibid.).
Mr. Russo supported the amendment (H 6097). He spoke of Roe v. Wade, a case that he believed had been wrongly decided, as having "ruled that the Government must remain neutral in the matter" (ibid.). He continued (ibid.):
"Yet, Department of Health Education and Welfare Officials have implemented regulations whereby women can use medicaid funds to procure their abortions. This stance is far from neutral it actively encourages and assists women to abort their fetuses rather than bring them into the world."
He spoke of the Hyde amendment as attempting to remove any federal involvement in a woman's decision and then continued (ibid.):
"Eliminating the source of funds may tip the balance towards bringing the child into the world and I believe in tipping the scale in favor of life almost every time. One study which I have read estimates that 80 percent of the abortions now performed with medicaid funds would not occur if medicaid money were unavailable for this purpose. That would save approximately 240,000 lives every year."
He observed that eliminating federal funding would not end all government financing of abortions, since the states would have the option to continue to do so; he argued further (H 6097-98):
"But the Federal government's example would encourage States participating in the medicaid program to discontinue this aspect of medical care to the poor an option States cannot exercise at the present time."
He argued that constitutionally Congress had exclusive power over the appropriation process and that the temporary injunction in the present McRae case violated the separation of powers principle; he concluded by urging his colleagues who strongly supported the right-to-life movement to support also the programs which would help "these youngsters break the poverty cycle" (H 6098).
Mr. Rangel opposed the amendment as clearly discriminatory (H 6098); he contended that before Roe v. Wade those who could not afford large sums to obtain a safe abortion were left to either having unwanted children or to having abortions performed by those not adequately prepared to perform such operations (ibid.). He continued (ibid.):
"We all applaud the decision in Wade and Bolton, as these cases finally recognized the need to protect a large segment of our population. With the Hyde language still in this bill, we find that we are back where we were before the Supreme Court rulings."
He said that many Members had expressed concern about the large number of children born out of wedlock and the increasing numbers of children who must be subsidized, and he noted that the amendment "would only serve to intensify those problems," adding that if the Congress wanted to reduce the public assistance rolls and child support programs, then it must delete the amendment from the bill (ibid.).
The amendment was then put to a vote, and the amendment offered by Mr. Hyde was carried by a vote of 201 to 155, 77 not voting (H 6098-99). A few days later Mr. Bonoir explained that his vote against the Hyde amendment was determined by his moral conviction that the mother's life had to be considered; the amendment did not contain language directed to that end; however, he explained that he believed life began at the moment of conception and was opposed in principle to abortion (H 6218).
In the Senate on June 20, 1977, Senator Stennis expressed his objections to abortion and to federal funding of abortions; he then stated (S 10178):
"In addition, the validity of the provision which we adopted last year has now been upheld by the Supreme Court of the United States. The Court specifically held that the Constitution does not give a woman the right to compel the Federal Government to pay for an abortion that is not medically necessary. Therefore, there is now no constitutional or legal impediment to the readoption of this prohibition."
His reference, of course, was to the June 20, 1977, decisions in the Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484, Beal v. Doe, 432 U.S. 438, 97 S. Ct. 2366, 53 L. Ed. 2d 464, and Poelker v. Doe, 432 U.S. 519, 97 S. Ct. 2391, 53 L. Ed. 2d 528, decisions.
On June 21, 1977, Senate Report No. 95-283 (95th Congress, 1st Session) was submitted to the Senate by Senator Magnuson from the Committee on Appropriations; the report contained the following language (p. 130):
"The Committee is concerned with preserving the freedom of choice of a woman who is receiving or has applied for benefits and services under such welfare programs to undergo an abortion or sterilization. There is great danger that a welfare recipient who is ill prepared to defend her personal rights will be persuaded against her will to undergo an abortion or sterilization as a condition of receiving welfare payments. The Committee believes it is absolutely essential that no woman regardless of her education, social or economic background be forced against her will into having an abortion or sterilization. To this end, the Department of Health, Education, and Welfare is instructed to establish regulations and procedures to make certain that any abortion or sterilization procedures paid for under this Act be voluntarily requested by the recipient."
The report stated that the Committee had changed the language of Section 209 as it came from the House so that it 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, or in the case of multiple sclerosis or renal disease, or other diseases which would seriously deform or debilitate the fetus, or for the termination of an ectopic pregnancy or for the treatment of rape or incest victims. This section does not prohibit the use of drugs or devices to prevent implantation of the fertilized ovum."
Cf. 1976 Conference report, supra, pp. 763-764.
On the same day Senator Helms discussed the Maher, Beal and Poelker cases (S 10369); he said (ibid.):
"These decisions of the Supreme Court are a vindication of all of us who have for so long maintained that tax dollars should not be used to finance the killing of unborn children and that it is constitutional for the Congress to deny the use of taxpayers' funds for this purpose. A majority of both the House and the Senate, in passing the so-called Hyde amendment, has agreed with this proposal and it is gratifying that the Supreme Court has agreed with this majority sentiment."
After summarizing the three cases Senator Helms explained the status of the present McRae case, and said that it was altogether likely, if the Court acted on the defendant's petition in that case in a timely manner, that the injunction barring enforcement of the amendment could be lifted within the next few days (ibid.).
The Senate had expected to reach the proposed Senate amendment of Section 209 on June 28th, but other matters prevented that (S 10919-22), and the debate opened on June 29, 1977, with Senator Packwood's presenting an amendment (No. 602) striking Section 209 from the appropriation bill, "so that if this amendment is successful, Federal funds will be available for use in abortions" (S 11030). Senator Packwood reviewed the history of legal attitudes toward abortion and its criminalization, and emphasized the change in attitudes toward matters related to abortion, homosexuality, and women's rights; he referred to the 1965 enactment of the Colorado abortion statute, followed by the New York, Alaska and Hawaii statutes, as well as that of his own state of Washington, all preceding the 1973 decisions in Roe v. Wade and Doe v. Bolton ; he said that polls showed that by an overwhelming margin Protestant, Jewish and Catholic youth alike supported the right of a woman to have an abortion, but that in the upper age categories there was still opposition to abortion (ibid.). Senator Percy, interrupting, suggested (S 11030) that premarital sex resulting in an unwanted and unplanned child who could not be cared for and who would interfere with the life of its young mother had always been looked upon as immoral and impermissible and that the generally accepted practice, hundreds of years ago, was to overcome that greater ill by having recourse to the lesser ill of abortion (ibid.). Senator Packwood, resuming, emphasized that one hundred years of prohibitory law did not stop abortion but resulted in illegal procedures that might result in infection and death (ibid.). Senator Percy suggested that the laws prevented girls from going to their own doctors to get the benefit of any kind of counselling, and forced them into the so-called back alley operations, many times performed in the second or third trimester by someone whose only business was performing abortions and who did not counsel avoidance of abortion and the handling of the problem in some other way (S 11030-31). Senator Packwood said that the laws prohibiting abortion passed between 1850 and 1950 were not passed because of moral reasons but for health reasons including death from abortions (S 11031). Senator Packwood said that the Supreme Court in 1973 had not decided that women "have a right to an abortion," but rather had decided, as the Maher, Beal and Poelker cases made clear, that "every woman has a right to make a decision as to whether or not she wants an abortion the right to make a decision" (ibid.). He said that neither the state nor the federal government has an obligation to fund an abortion; that he supported abortion, but had never supported it on the ground that it is cheaper than carrying pregnancies to term and having babies on welfare; nor did he argue that abortion was needed for population control (ibid.). Senator Percy inquired whether it was not those who take an adamant position against abortion who are at times in the forefront of condemning welfare in every way possible; he inquired whether, if an unwanted child is born to a mother who already has seven or eight children who could not adequately care for the additional child, that additional child would not be a ward of the government for fifteen to eighteen years, and, whether, if raised in the ghetto, surrounded by crime, it would not have a great chance of being drawn into the business of crime (ibid.).
Senator Packwood, resuming (S 11031), asked, ". . . do we in Congress have any obligation to fund abortions? Not a constitutional obligation, a moral obligation" (ibid.). He said that it was clear that the 250,000 to 300,000 women who now receive abortions paid for under medicaid were going either to have babies that they did not want, or to go to backroom abortionists; continuing, he said (ibid.):
"There is no question that the poor are going to be discriminated against. It does not mean that we have an obligation to help, but should we?"
He pointed out that the poor were provided with food through food stamps and other federal programs, with housing, through public housing, with a variety of health services, through medicaid and other programs, and with legal services, not only to defend against government prosecutions, but so that poor persons could sue their landlords; he pointed out further (ibid.):
"We provide them with education, because we think it is right in this country that the rich and the poor have a reasonably equal chance for education.
"Yet, in every one of the items I have cited education, legal services, medicine, food, and housing the Supreme Court never once has said, "You have a right to those.' They have never even raised it to the dignity of the right of a woman to decide whether or not she wants an abortion. Yet we are willing to fund for the poor all those programs, and we do it gladly, to the limit we can afford, because we think it is the decent and moral thing to do."
Senator Packwood said that abortions were perhaps more critical to a poor woman than any of these other things, and would have a greater effect on her life; yet it is said that the government has no obligation to fund abortions for the poor (ibid.). He pointed out that "We do not have any obligations to feed, house, or educate them, either" (ibid.), and he inquired (ibid.):
"What is the reason why we do it for those other things and not for abortions? I will tell Senators why, and they all know why.
"It is not that we lack compassion for the poor it is that we personally think that abortions are immoral, and because we think they are immoral we are going to impose our standard of morality on the poor, and the fact that the poor, in many cases, do not think that abortions are immoral is tough luck. That is the standard."
Senator Packwood admitted that abortion was a passionately divided issue; he said that if the Congress wanted to deny abortions to the poor because it did not have the money, that was a decision to weigh in the light of the government's finances, and if the Congress wanted to deny the poor abortions because it was more important that they have legal services or public housing, that might be an unfortunate but necessary balancing of priorities; he went on (S 11032):
"But to say that we are going to deny abortions to the poor because we disapprove of them is a disdainful, haughty, arrogance that should not demean this Congress."
Senator Packwood pointed out that the American Civil Liberties Union, the American Bar Association, and numerous religious organizations, the names of which he read into the record, supported legalized abortion; Senator Packwood continued (ibid.):
"Those are organizations every bit as concerned with human life and morality as any church any of us might belong to.
"What they illustrate is that there is indeed a strong division of opinion in this country, an honest division of opinion, on the issue of abortion. But by their stand in favor of legalized abortion what they are saying is that it is not the business of a government to put its particular stamp of morality on abortion. It is the business of Government to keep its hands off the business of abortion."
He contended that to refuse to fund abortions was to force "our view of morality" on the people of the country so far as the poor were concerned (ibid.).
In answer to inquiries of Senator Percy it was brought out that the average cost of a medicaid abortion in the first trimester was about $ 200 as compared with the cost for first year after birth of about $ 2200, and that provision for a child throughout its minority could cost, in Senator Percy's estimate, $ 60,000 to $ 100,000 (ibid.). Senator Percy saw an incongruity between this country's support of population planning on a global scale at a cost of approximately $ 100 million and on the other hand taking away the access of poor American women to $ 200 abortions (S 11032-33). Senator Packwood then referred to Mexico's need for population stabilization and related that country's population to illegal immigration into the United States (S 11033). Senator Percy suggested (ibid.) that discussion and changes of attitude toward family planning, abortion and population control were going on within religious groups, and that concern for the growing number of the poor who cannot contribute adequately to their children's educational and other needs indicated that they should have available the option of abortion, though it may be the least favorable option; he said that although he personally hated abortion, he thought it was an option of which the Congress could not deprive one particular group of women by making it the one medical expense that the Congress was going to exclude from the bill; he referred to his being picketed and accused of being a murderer by the Right-to-Life groups, and noted that the pickets were for the most part lovely people who were earnestly seeking the truth, were deeply convinced that they have arrived at the truth and were unshakeable in the belief that they were on the right side on moral grounds (ibid.). Senator Percy discussed the prenatal development of the fetus, read the headnote in Roe v. Wade into the record, stated that he would oppose the Hyde amendment and support the Packwood amendment, striking Section 209 from the bill, and concluded (S 11033-34):
"But here, in a HEW bill, a provision that just arbitrarily takes low-income women and discriminates against them; a provision that says "You cannot apply for funds for a right given to you by the Supreme Court,' I just feel that that is improper and immoral."
Senator Garn opposed the Packwood amendment (S 11034); he said that he disagreed totally with everything that Senators Packwood and Percy had said "in a moral, ethical, and every other way"; he rejected the contention that the effect of the Hyde amendment was to impose the morality of one group on another; he argued that the Maher, Beal and Poelker decisions did not seem meaningful to Senator Packwood; he continued (S 11034-35):
". . . and I want to know about my rights as a taxpayer and those of millions of people around this country who feel the same way I do about legal abortion, and do not believe their money should be taken involuntarily to fund something they feel is a heinous crime, and that they are opposed to."
In concluding his argument (S 11034-35) Senator Garn expressed his resentment at what he characterized as Senator Percy's sarcasm and innuendoes, and the laughter that was caused by some of Senator Percy's statements (S 11035).
Senator Packwood pointed out that many who were genuinely opposed to the Vietnam war were required to pay their taxes or to go to jail; he expressed the hope that Senator Garn did not seriously suggest that the Congress henceforth adopt a standard of personal morality for tax payment (S 11035). Senator Garn said that he did not, that, obviously, there were some issues for which his tax money was taken which he did not support but which he did not feel about so strongly as he felt about "the taking of human life" (ibid.). Senator Packwood said that the standard could not be how personally deeply a taxpayer felt about an issue (ibid.), and Senator Garn asked whether in any of those other areas the Supreme Court had ruled as it had in the case of the Hyde amendment passed in the preceding year, that the Congress was not required to fund abortions (ibid.), and Senator Packwood pointed out that he had not argued that the Congress was required to fund abortions (ibid.).
Senator Brooke supported Senator Packwood's motion to strike Section 209 from the bill (S 11035), arguing first that it was a blatant case of legislating on an appropriations bill, an unwise practice to which he was adamantly opposed; in addition he opposed restrictions on medicaid abortions because the Senate should not, through a funding decision, "in effect deprive our most vulnerable and helpless citizens, the poor, of an established constitutional right," nor should the Senate thoughtlessly try to impose simplistic solutions on a complex issue, nor legislate in a medical area in which it had no competence (ibid.). Of the Maher, Beal and Poelker decisions he said (ibid.):
"The Supreme Court decisions of last week left this right completely intact for the woman who is able to pay for her own abortion. But the right of the poor woman is left in practice to our, the government's sense of justice and courage.
"If we now restrict or ban medicaid funds for abortions, the Government will accomplish for poor women indirectly what the 1973 opinion expressly forbade it to do directly."
He referred to language in Singleton v. Wulff, 428 U.S. 106, 118, fn. 7, 96 S. Ct. 2868, 2876, fn. 7, 49 L. Ed. 2d 826, that the state's refusal to fund an abortion is, for a doctor who cannot afford to work for nothing and for a woman who cannot afford to pay him, as effective an interdiction of it as would ever be necessary. He argued that if the Senate voted to restrict medicaid funds for a poor woman's abortion, it would "make a mockery of her right" (ibid.). Senator Brooke said that to say that the government does not finance all constitutional rights and that the rights of the poor are always less numerous than those of the well to do "does not excuse a country with democratic aspirations from trying at least to assure those basic, necessary rights to all its citizens" (S 11035). He argued that it was unrealistic and insensitive to say that withdrawing medicaid funding for abortion did not deprive the poor woman of her constitutional right, and that the Congress should absolutely respect the constitutional right of poor women by refusing to place restrictions on medicaid abortions; he said that the great difficulty in legislating fair, humane restrictions on abortion underlined the practical as well as the constitutional wisdom of the 1973 decision that abortion is an intensely personal and private decision which must be left totally to a woman and her doctor, the poor as well as the rich woman (S 11035). To the contention that the Senate should ban or restrict funding he answered (ibid.):
"But the Senate cannot know the thousands of individual or family situations which cause a poor woman, any more than a well-to-do woman, reluctantly to decide that an abortion is the only tenable alternative for herself and her family. The Senate cannot gauge the desperation, fear and hopelessness which might drive a woman to such a decision.
"The vast majority of Senators realize this and oppose an absolute ban on abortion funds, allowing no exceptions. But when we do attempt to list those mitigating circumstances under which we will sanction a poor woman's obtaining an abortion, we soon realize the impossible complexity of the issue and our limitations in attempting to impose solutions."
Saying that few Senators would oppose funding abortions when the life of the pregnant woman was endangered, Senator Brooke asked whether the Senate was insensitive to pregnancies that might seriously or permanently endanger the pregnant woman's health, insensitive to the victims of rape and incest, and insensitive to the plight of a 12 or 13 year old pregnant girl (S 11036). He argued that parents should not be denied the right to decide whether to bring into the world a child suffering from deformity or debility or incurable disease (ibid.). Referring to the Committee effort in drafting the bill, he said (ibid.):
"That bill stands as a testament to the limitations and the unfairness of any such efforts. And nowhere are those limitations clearer than when the Senate attempts to make medical decisions, decisions which only a doctor is qualified to make."
He said that the Senate Committee draft of Section 209 included reference only to multiple sclerosis and renal disease omitting reference to other diseases more detrimental to health, solely because a member of the House delegation to the conference on the preceding year's bill had insisted that his concern for those two conditions be expressed in the report language accompanying the bill, and that the Senate Appropriations Committee in 1977 simply voted to incorporate the preceding year's limited report language into the bill (ibid.). Senator Brooke argued that the Senate would have either to allow doctors to make the decisions only they were qualified to make, or to have those medical decisions determined by the chance of persuading individual Senators or Congressmen to offer amendments excepting particular diseases or medical conditions from the ban on abortion; the latter alternative, he contended would be "intolerable" (ibid.). He argued that denying the poor women funds for abortions would not prevent abortions among poor women but only force them into dangerous self-induced or back-alley abortions, and then allow to the 25,000 poor women each year who, the DHEW estimated, would suffer serious complications from such dangerous abortions, the medicaid funds needed to correct the botched abortions the Senate forced the women into (ibid.).
Senator Helms opposed the Packwood amendment to strike Section 209 from the bill (S 11036-37); he asserted that Senators Percy and Packwood had not discussed the fundamental issue really involved, that is "the deliberate termination of an innocent human life"; he said (ibid.):
"If my distinguished colleagues can persuade me that they are not advocating that the taxpayers be forced to furnish the money to terminate innocent human life, then this argument will be over, and I will not even submit my amendment."
He said that the Senators talked about the population explosion and offered "the remedy of killing human beings who have never had the right even to be born" (ibid.); he argued that the defenseless people involved were not the poor but the tiny human beings, yet waiting to be born; he read excerpts from a letter from a physician in Maine (who was Chief of Pediatrics at a hospital in Bangor, Maine) who opposed abortion, arguing that there was medical care for all new borns, that medical science was advancing so rapidly that there were few diseases that the medical profession could not help, that sterilizations and abortions lead eventually to euthanasia, infanticide and so on and on, and that there are literally no diseases, mental or physical, that the medical profession cannot save a mother from as a result of her pregnancy (S 11036). Senator Helms argued that during the debate in the preceding year Senator Packwood had argued that it was cheaper to kill unborn children than to let them be born (S 11036-37). Senator Packwood denied that he had so argued during the preceding year or ever (S 11037).
Senator Domenici, commending Senator Packwood for not making the cost-benefit argument, nevertheless argued (S 11037):
"I say to my friends in the Senate that anyone who thinks we ought to use tax dollars to abort the unborn children of the poor because, in fact, it is cheaper for the taxpayer, then they better read a little bit of history, because it is not far fetched that a society that passes judgment on human life based on whether or not it is devoid of value will bring upon it such instances as what Hitler did to the Jews in Germany."
He argued (S 11037) that children born to the poor served the country, produced for the country, and turned out not to be poor in talent and accomplishment; he argued, as he said he had argued earlier, that there was no responsibility to pay for abortions for the poor under medicaid, and he contended that the Supreme Court had just confirmed that; as for the cause of the legislative muddle, he said (ibid.):
"It is because the U.S. Congress passed a medicaid law, general in nature, at a point in history when they have to admit they never contemplated paying for abortions, because the U.S. Supreme Court had not written its first decision on the matter, and the most States prohibited it, for the most part. We sat here, in Washington, D.C., and watched medicaid evolve as a result of an interpretation of our Constitution, and we wonder why there is such confusion.
"I say to my good friend from Oregon that we should not be funding abortions here today, when no committee of either House of Congress has ever had the courage to conduct a hearing on authorizing legislation to look at the dimensions of abortion. This is not an appropriation decision. This is a decision to be made after hearing. . . . "
Senator Hatch opened his argument (S 11037-38) against the Packwood amendment by pointing out that a number of the senators had come from poor backgrounds as had a number of great people, and he continued (S 11038):
"I think it is a crass observation to think that simply because people are poor, if abortion laws are not granted or the right to abortion is not granted or the right to life is granted, they would not have their children or would not bring them up properly or would not give them the opportunities of growth or the opportunities to become something in this world.
"I, for one, believe that the people of this country have some rights. I believe that the majority of the people of this country are against abortion except to save the life of the mother. I really believe that. I believe they are against it on moral and religious grounds that has made this country the greatest country in the world and will keep it there as long as we believe in moral values and religious grounds.
"I believe that the reason great countries fail is that they become immoral, because they bring in prostitution, vice, obscenity, pornography, violence. They fail to work hard. They fail to try to provide jobs for the poor. They use the poor as a great national constituency by keeping them bound down, by not letting them have jobs, by having "minimum wages' which prevent the poor from getting jobs.
"I think we have that particular danger right now in this country. We have become a country that is on the verge of becoming morally bankrupt, because of some of these things I have mentioned. I think abortion fits into that category.
"I think it is a moral crime that we have more than 1 million abortions in America a year and that approximately 300,000 of those have been paid for by Federal tax dollars, much of which have been paid into the Federal Treasury by people who do not believe in abortion for purely religious grounds or for moral reasons.
"To impose abortion on these people, I think, is wrong."
Senator Hatch said that he felt a little upset by the comments suggesting that it was the conservative senators who opposed welfare appropriations generally who appeared to be opposed to abortion, and he said that many liberal friends felt exactly as he did on the abortion issues and just as strongly (S 11038).
Senator Bayh asserted that research would assure Senator Hatch of the "remarkable similarity between people who oppose the right of a mother to choose abortion and the votes of those same individuals who vote against increased Head Start programs, increased money for food and medical assistance for children, increased money for public housing, increased money for rat control so you can keep the babies who are born from being bitten by rats" (S 11038). Senator Hatch answered (ibid.) that there was "a remarkable similarity between many of those who believe in abortion and who are spending us into bankruptcy, and who now have us with an $ 800 billion total national debt and a $ 4 to $ 6 trillion unfunded debt, and who are bankrupting this country monetarily." He added that he thought there was a remarkable similarity between many who vote for abortion (though not all) "and those who keep this marvelous national poor constituency by making them always come to the Federal Government to solve their problems, and those who make it easier to be on welfare than to give them a job or an opportunity for a job." Senator Hatch opposed to the argument aimed at the conservative position generally and its replication on the abortion issue his contention that "the biggest problem in our society with the poor is that we have become a public government, a centralized government, society that is overregulated to death, and this is another approach that brings the poor down to subjection and overregulation" (ibid.). Senator Hatch concluded his argument with the statements that he believed the vast majority of people in the country did not believe in abortion except to save the life of the mother, that there were very many who would fight right down to the wire for those beliefs, and that the argument that there was only one viewpoint with regard to abortion was wrong, as was the argument that the fact that people felt deeply and religiously about abortion made them somehow less humane (S 11039).
Senator Bellmon submitted a statement emphasizing the importance of assuring, whatever legislation was passed, that women be given a genuine and informed choice on issues of abortion and sterilization (S 11039). Senator Stennis submitted a statement opposing the Packwood amendment (S 11039-40) on the ground that abortion was the calculated killing of an innocent inconvenient human being; he recognized that the Supreme Court had both legalized the right to abortion and had also made clear that there was no affirmative right to be provided with an abortion at the taxpayers' expense, and he recognized that the problem of the unwanted child was a tragic human problem; he did not, however, consider "the violent act of abortion" the proper solution, but a complete failure to look for and find a solution; on the issue of discrimination he said (S 11040):
"Let me say that I believe that the Government has the fundamental responsibility to protect the basic rights of its citizens and to provide them with decent employment opportunities, freedom from hunger and accessible education. However, I believe that it is discrimination of the worst kind against any taxpayer who opposes abortions on religious grounds or otherwise to make that taxpayer finance elective abortions."
Senator Stennis preferred the form of Section 209 recommended by the Senate Appropriations Committee to the House amendment, and he concluded (ibid.):
"The concept that a woman has the right to be free to seek abortion services without governmental obstruction or interference is completely separate from the question of whether the Government has or should have a legal obligation to pay for such abortion on demand."
Senator McGovern opposed the Hyde amendment (S 11040), saying that the Supreme Court had been clear that the Constitution did not require the Congress to fund abortion services for indigent women, but had left that entirely to the federal and state governments to decide through the normal processes of democracy; he argued that the issue was one of equity: to decide whether abortions would be available equally to poor as well as non-poor women (ibid.). He opposed the Hyde amendment on the ground that it discriminated effectively against minority women who are more heavily dependent than others on medicaid, that it would interfere with the doctor's ability to prescribe treatment according to his own best medical judgment, that it would cause an increase in cheap, illegal abortions and resulting medical complications and deaths, that it would especially hurt teenagers who rely on medicaid for their medical care because they are most vulnerable physically and emotionally to the effects of unwanted pregnancies, and that it would impose one moral viewpoint upon all poor women, who are not in a position to make their views known (S 11040).
Senator Helms then presented, as a substitute for the Packwood amendment that would have stricken Section 209 from the bill, an amendment (No. 603) reading:
"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."
Senator Helms commenced his argument for his amendment by stating that the Supreme Court had ruled the Hyde amendment constitutional by its decision in the Maher case holding that a state could not be required to finance non-therapeutic abortions (S 11041). He said that millions of Americans opposed use of tax dollars to pay for abortions of convenience, that about 85% of the public hospitals in the United States refused to perform non-therapeutic abortions of convenience and allowed abortions only where there was grave threat of death or injury to the mother; that many states financed non-therapeutic abortions only because required to do so under federal court order; he argued that those Congressmen who had voted against the Hyde amendment on constitutional grounds were now answered by the decision in the Maher case; he continued (ibid.):
"Mr. President, let it be clear that by the terms of the Hyde amendment which was accepted by both the House and the Senate last year, Congress prohibited funding for abortions which were not medically necessary. Medically necessary abortions, those necessary to prevent the death of the mother or when the mother's life is endangered, were not prohibited by the Hyde amendment. Proponents of abortion on demand now insist, however, that tax dollars be used to provide nontherapeutic, convenience abortions.
"With the slogan, "every child should be wanted,' the proponents of subsidized convenience abortions maintain that abortion must be recognized as simply a backup method of birth control in family planning."
Senator Helms argued that the "right to life of any child should not depend on whether or not he is wanted by someone else," that the humane and positive response of government is to encourage life rather than accept the argument allegedly made by the opponents of his view that it was cheaper for the state to kill the unborn than to let them be born, an argument which, he contended, invoked the lesson of Nazi Germany (S 11041-42); he continued (S 11042):
"Of course, the beginnings at first are merely a subtle shift in emphasis in the basic attitude of society. It starts with the acceptance of the idea that there is such a thing as a life not worth living. In its early stages, this attitude concerns itself only with the so-called "hard cases' in which the victims, because of age or illness or mental capacity, are unable to speak for themselves. Gradually this category is enlarged to include the socially unproductive and the ideologically unwanted."
Urging adoption of his amendment, which was in the language of the preceding year's Hyde-Conte amendment, Senator Helms argued that an exception for ectopic pregnancies was unnecessary since dealing with them did not involve abortion, that there should be no exception for fetal deformity because "fetal euthanasia" was not a solution to the handicapped child in the womb, and that a rape exception was both unnecessary and unenforceable because there were none or few pregnancies resulting from reported rapes and there would be no means of determining the origin of pregnancies alleged to have followed from unreported rapes (ibid.). Of the spectre of maternal deaths from abortion, Senator Helms said that in 1971 "there were only 120 maternal deaths from abortion, including legal abortion," and that there was no reason to suppose that maternal deaths due to backroom abortions would increase beyond what they had been before the legalization of abortion; he added that "for every two human beings who experience an abortion, only one is left alive"; pointing to the great sums spent in saving the lives of new born babies, particularly prematurely born babies, he saw that expenditure as contradicting the use of taxpayers' money "to exterminate the lives of literally hundreds of thousands of innocent unborn children" (S 11042).
Senator Javits, saying that he disagreed with the Maher decision "that the Federal Government may place restrictions upon the medical aid which it gives, even though that aid is supportive of that private right of the woman" which Roe v. Wade had given her, argued that the question of constitutionality was immaterial because the discussion related to policy not constitutionality, and "as a matter of policy we cannot deny to the poor woman what we grant very clearly to the person who can afford it," and that the law should not inhibit the exercise of a private right by those who can least afford it and need government assistance (S 11043). Senator Bayh said that the hearings before the subcommittee on constitutional amendments had carried him to the conclusion that "we were talking about life when we discuss the fetus," but that he opposed the Helms amendment because he thought "people have a right to differ on this issue"; he argued that it would be more equitable to debate the constitutional question whether all American women were to have the right to choose or not than the issue presented by the amendment; that issue, he said, was not whether to establish a moral standard of right and wrong for all the people all thirteen year old girls, all parents confronted with the tragedy of an unexpected pregnancy but was whether to separate out a certain group of Americans, a minority of Americans, those on the low end of the economic scale, those who do not have the financial resources to exercise the constitutional right which the Supreme Court had said they had (S 11043). He continued (ibid.):
"Thus, in essence, we are saying that those who have the resources to enjoy their constitutional right may do so. Those who do not have the financial resources have the constitutional right, but a right without the ability to use it is absolutely worthless."
Senator Bayh agreed that "abortion for convenience alone is tragic"; but he contended that denying funding for abortions would not stop poor women from trying to have abortions, that they would resort to backroom abortions with resultant risks of death and irreparable harm (S 11043). Senator Long, interrupting, agreed that as a practical matter the amendment did not forbid abortion but forbade abortions in hospitals performed by doctors and he said that (ibid.):
"In desperation, people do turn to abortion, and when they do it is tragic that it either costs a life or permanently impairs the health of the person on whom the abortion is being performed."
Senator Bayh said that he was not prepared to lay down a rule of conduct for those faced with the abortion decision (S 11044); he considered such decisions personal, family decisions, and said (ibid.):
"But for us to stand here and make a collective decision for individuals everywhere else, I think is the ultimate in audacity."
He pointed out that the effect of the amendment was that only the poor would be denied access to abortion when victimized by rape and incest or threatened with the birth of a child determined prenatally to be afflicted with Tay-Sachs disease, a degenerative and fatal affliction striking at the age of one; he contended that the child 13 or 14 or 15 who becomes pregnant should not be precluded from being able to make a decision, in consultation with her parents, as to whether to bear the child or abort it (S 11044). Arguing that the issue was one of policy and not of constitutionality, Senator Bayh contended that the issue was whether the Senate was willing to discriminate against the poor women who could not avail themselves of a constitutional right available to other women; noting that the Supreme Court had said that there were other sources of funding (Maher v. Roe, supra, 432 U.S. at 474, 97 S. Ct. at 2382), Senator Bayh said (ibid.):
"The fact of the matter is that we are the court of last resort. As we vote, let us recognize that consequence. Let us not wait for some white rabbit to pop out of a hat and suddenly bring a bundle of cash into the dusty living room of a poor family with no money for an abortion, because it is not going to be there. We are either going to make that available in the event the choice is made, or we are not."
Senator Percy, opposing the Helms amendment (S 11045), expressed regret if any of his earlier statements were felt to have been sarcastic or to have ridiculed others; he opposed the amendment because it denied medicaid abortions to poor women, leaving them to choose between unsafe abortion or the birth of children they did not want or could not afford, leaving well-to-do women unaffected; he said that the amendment would not stop abortions but only deny poor women equal access to medical service; he said that it had been estimated that 70% of the women who today receive legal and safe abortions would still get abortions even if they had to resort to unsafe means; he asserted that after the legalization of certain abortions in California and New York it was noted that the number of women admitted to hospitals for post-abortion treatment had declined by 68% in the two years following the change in the abortion law in San Francisco and by 88% in Los Angeles, and that data from the New York City hospitals indicated a drop in abortion complications of 52% in the first three years under the changed abortion law; he said that Chicago Board of Health statistics indicated that 4,000 women annually were admitted to Cook County Hospitals from 1962 to 1968 for medical care following criminal abortions, but that in April and May of 1973 the Chicago Board of Health found less than five such cases a month at the same hospital facility (S 11045). Senator Percy said that abortion-related maternal deaths had declined as a result of the change in the abortion laws in California from 20 deaths per 100,000 live births in 1957 to two such deaths per 100,000 live births in 1971 and that in New York City four maternal deaths from abortion were reported in 1972-1973, after the change in the abortion law, while 22 deaths had been reported in 1970, before the change in law (ibid.). Citing general statistics indicating a decline in deaths related to childbirth, which could be ascribed in some part to the choice of abortion over the continuance of difficult pregnancies, Senator Percy argued:
"There is no doubt in my mind that passage of section 209 would undoubtedly cause a reversal of that trend, resulting in the unnecessary deaths of many women. Illegal abortionists rarely, if ever, provide counselling services."
He argued for a further increase in the funding of the federal family planning effort, estimating that 172,500 low-income women had no access to such services; he noted that teenagers had the least access to family planning services; Senator Percy reiterated that the central issue was nondiscrimination against poor women, and he urged adoption of Senator Packwood's motion, which would have stricken Section 209 from the bill entirely; he noted that the Helms amendment would deny funding for abortions for the victims of rape, who numbered 56,000 in 1975, and he concluded by reiterating that the Hyde amendment would not prevent abortion but only deny poor women equal access to this medical service (S 11045).
Senator Schweiker, a co-sponsor of the Helms amendment, pointed out that the Supreme Court had obviously said that a person can have an abortion but that a legislature, be it local, state or federal, had the right to say that taxpayers do not have to pay for the abortion; he saw no discrimination, arguing that those who have means can elect to do many things including engaging medical services not paid for by medicaid; he continued (S 11046):
"Obviously abortion is not the same as a facelift, but the principle is that somebody has to choose what is covered and what is not.
"If this amendment prevails, exactly the same freedoms and rights will prevail as there always has been. People will not get an abortion done at taxpayers' expense. They can freely go to a local agency and get it financed.
"There is a great difference in honest opinion about the ethics and morality of this issue. I happen to be on the side that abortion is ethically and morally wrong. I happen to feel that I do not have a responsibility to finance other people who feel differently. The Court said those other people who feel differently have the right to have that abortion and that is not the issue here."
The Helms amendment was then put to a vote and it lost, 33 voting in favor of it, 65 voting against it, and 2 not voting (S 11046).
The debate then turned to the Packwood amendment (ibid.). Senator Packwood reiterated much of what he had argued earlier in the day (supra pp. 783-785) and he noted, responding to the argument that invoked the Nazi precedent, that in the list of organizations that he cited as supporting legalized abortions there were "more Jewish organizations that support legalized abortion than any other particular kind of religious organization" (S 11047). Senator Schweiker in opposition to the Packwood amendment (S 11048) stated that the Packwood amendment would provide basically for "abortion-on-demand"; he then explained the holdings in the Beal, Maher and Poelker cases, and contended that in the light of the decisions the basic issue was
"Do we want to make it Federal policy to encourage, support, and increase the abortions in this country?"
Senate Schweiker insisted that the issue was not the right to abortion: that, the Supreme Court had already decided; it had also said, he argued, that the federal legislature had the right to say that (ibid. )
"There are some limitations on whether we will ask people to put their money into a common fund and support, encourage, and foster a policy of this kind."
Senator Packwood then resumed his argument (S 11048) and again read the lists of the organizations supporting legalized abortion; he said that he did not support abortion for some of the reasons that had been attributed to him; he did not support it because it was cheaper than childbirth for the government, nor for population reasons, but because women had a constitutional right to abortion, and because the funding of abortions was decent and in good conscience should be done because it is fair (S 11049). Repeating his earlier argument elaborating on the extent of the federal programs for the support of the poor and contrasting that to the denial to them of the medical service connected with abortion, Senator Packwood argued (ibid.):
"When we say, "No, we are not going to fund abortions,' we say it for one reason and one reason only, and that is because some Members of this body think it is wrong, think it is immoral, and if they can, they are going to impose that view on everyone else in this country; and that is wrong."
Quoting excerpts from earlier statements of Senators Helms, Domenici, Hatch and Garn, Senator Packwood said that he supported the Senators' right to those views, but he submitted that "the sole reason for their opposition is their own personal idea of morality" (ibid.). Senator Packwood derided as mockery the argument that the abortions in question could be funded privately (ibid.). Referring to the Senate Committee draft amendment, he said that the exceptions which it visualized would not amount to one percent of the pregnancies, and would deny freedom of choice to 99% of the pregnancies, which are not problem pregnancies; he argued that if the poor woman were offered the chance to exchange her federally subsidized rights to education, legal services, housing, food, and medicine for the funds needed for an abortion, the choice would be for an abortion (ibid.):
"The most important decision she would make is whether or not to have an unwanted child. She would exchange all of that money, the food stamps, the housing, the money for that right, she would exchange all of that for the abortion.
"But this Senate says, "No, you will not have that choice.' We middle-aged men, born before 1950, raised in a different era of morality, will impose our ideas on her.
"I pray to God this Senate is not that haughty, not that disdainful, to think that somehow God has given us the right to impose our sense of morality on the rest of this country."
Senator Percy then in a brief statement supported Senator Packwood's position (S 11049). Senator Goldwater (S 11049-50) said that he would not commit himself about his vote but would say:
"I am not ashamed of the morals that were taught me by my mother and my father. I am not ashamed of the morals I have, and I never intend that any law of this country will change the way I feel about morality."
Senator Packwood responded (S 11050):
"I do not want anybody to change their morals, to change their beliefs, or to impose them on anybody else. I would be perfectly happy if we went back to the morals and standards of the founders of this country on abortion."
Senator Riegle (S 11050) stated that he did not greatly favor abortion but strongly supported the Packwood amendment; he continued (ibid.):
"More than that, I just want to say that I believe, particularly at this time and on this issue, it is difficult to offer leadership if one holds the view the Senator (Packwood) holds and which I hold."
The Packwood amendment (No. 602) was then put to a vote and it was defeated by a vote of 42 in favor, 56 opposed and 2 not voting.
Senator Brooke then presented an amendment reading in the following language (S 11050):
"Sec. 209. None of the funds 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, or where medically necessary, or for the treatment of rape or incest. This section does not prohibit the use of drugs or devices to prevent implantation of the fertilized ovum."
Senator Brooke explained (S 11051) that his amendment differed from the amendment proposed by the Senate Committee in substituting for the specific diseases and conditions mentioned in the Senate bill the inclusive expression "where medically necessary." The new language, he said, reflected his understanding that the matters specifically mentioned omitted other medical conditions and diseases far more detrimental to the health of the pregnant woman; he argued that the Senate could not well determine what diseases should be specifically excepted, that the only alternative was to allow the doctors to make the decisions that only they were qualified to make, and that the language he suggested would leave the medical decisions where they so clearly belonged (S 11051). Senator Hatfield asked whether "medically necessary" included psychological as well as organic problems, and Senator Brooke answered that "medically necessary" meant that whatever the doctor determined was medically necessary would be covered, including the case in which the physician acted on a woman's indication to him that she did not feel that she was emotionally or psychologically prepared to carry the pregnancy to term; Senator Brooke made clear that the doctor would have to make a medical determination, however, and not take the word of the pregnant woman (S 11051). In response to Senator Hatfield's question whether the amendment would provide any criteria governing the medical doctor's action, Senator Brooke answered that he did not think the Senate would want to subject the doctor to the Senate's determination as to what was medically necessary; he said that neither he nor, he thought, the Senate was competent to make medical decisions, as it would be doing if it used the language of the Senate Committee draft naming the two diseases, renal disease and multiple sclerosis; Senator Brooke agreed to Senator Hatfield's summary of the effect of the language in the following words (S 11051):
"By the language "medically necessary,' in effect, we have an open end situation that the doctor can make any determination, within his scope of competence to determine, whether or not an abortion should be permitted?"
Senator Curtis asked whether medically necessary included being medically necessary to prevent a headache or death and Senator Brooke answered (ibid.):
"Medically necessary to save the life of the mother or to see that the fetus would not be endangered."
In answer to a question of Senator Schweiker's, however, Senator Brooke assented to the idea that the expression "medically necessary" would make it possible "to have an abortion if the life of the mother or the life of the child was not in danger" (ibid.). Senator Domenici asked whether the words "medically necessary" were words of art in the medicaid bill, and Senator Brooke answered that they were words of art (ibid.)
". . . used throughout medical legislation. They are used for all social security funds and for all medical funds."
Senator Javits pointed out that the term medically necessary was used in the Social Security Act, in the grant for medicare, in the Peer Review Act and in the Hospital Utilization Act (S 11052). Senator Javits continued (ibid.):
"I would say it would have to be a serious and good-faith medical finding by a doctor that it is necessary in this particular case for sound medical reasons to abort."
Senator Magnuson suggested as a likely inclusion a case in which the life of the mother was not endangered but the pregnancy could leave her "in such a serious health condition that her life might be worthless, or dramatically altered" (ibid.). Senator Magnuson made clear that he was talking "not about emotional or psychological, but physical diseases" (S 11052).
Senator Bayh (S 11052) stated that the Senate's earlier votes had recognized that complete access to abortion was not the desire of the Senate and that it was not enough to except only the cases in which the mother's life was endangered; he explained, referring to his earlier argument (ibid.):
". . . if you look at those individual circumstances that this amendment is designed to reach, I was not prepared, and am not now prepared, to take away the individual choice of individuals who are confronted with the circumstances, and I pray to God none of us in this body ever will be. We are now sitting as judge and jury imposing our assessment on women of this country who have been and will be confronted with the circumstances."
Referring to the Senate Committee action of the year before, he said that its purpose was to deal first with the case where the life of the mother was concerned, and second where certain types of diseases were involved which would lead to an increased chance of death or to the impairment of the health of the mother, and that the two examples were used as illustrative only; it was meant to reach a good many other diseases, all those diseases that, when a woman was pregnant, significantly threatened her health or would significantly have reduced her longevity (ibid.). Senator Johnston (S 11052) suggested that the purpose of the Committee report had been to except diseases like multiple sclerosis and renal disease, but that the language chosen made those two diseases an exclusive list. Senator Bayh agreed with Senator Johnston (S 11053), and argued that use of the term medically necessary was preferable to the Committee draft's inexpert attempt to list the specific matters to be excepted. He pointed out that in the Beal case the Supreme Court dealt with the term "medically necessary" (432 U.S. at 441-442 and footnote 3, 97 S. Ct. at 2369 and footnote 3); Senator Bayh referred then to the exceptions in the Senate Committee draft for diseases which would deform or debilitate the fetus, and he questioned whether that language would cover a Tay-Sachs disease instance; he argued that Senator Brooke's language would do so, and he noted that no one had mentioned rubella nor thalidomide; he indicated that he thought in those cases there should be freedom to choose abortion (S 11053).
Senator Brooke introduced an amendment to his suggested Section 209 by adding after the words "of rape or incest" the word "victims" (ibid.).
Senator Kennedy, though opposed to "abortion on demand," believed that abortions might legitimately be required by certain medical conditions, and that the availability of abortion was equally important for all women regardless of economic status in cases of genuine medical necessity (S 11053). He said that the law under consideration applied only to the poor, the most powerless segment in our society, and that the Hyde amendment would impose upon them a standard which no other women would have to live up to; the effect would be thousands of medical complications and hundreds of deaths each year, a burden that most of the women in this country do not carry, and one which medicaid recipients should not carry; he said that the real question was how to develop a standard under the medicaid law which eliminated abortions of social convenience and allowed those procedures which could be justified for all citizens; he said that medical necessity was such a standard, and he cited the language of the conference statement of the preceding year as embodying the intent of the amendment agreed to in the preceding year; the language he referred to and quoted was:
"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."
Senator Kennedy said that the quoted statement was a standard against which all abortions could be judged and that he continued to support that intent (S 11053). He urged devoting time to developing positive programs for effective family planning and prenatal and postnatal care for those citizens who could not afford it; only then, he argued, would the government be able to reduce the economic and social pressures which result in poor women seeking non-therapeutic abortions (ibid.):
"No woman in the richest nation on Earth should be forced to make the moral choice of aborting a pregnancy because she is too poor to carry, then care for her child."
He argued that there should be better services, such as education, for unwed mothers, that there should be maternity coverage for dependent minors or unmarried women at the same cost as medical insurance policies presently provided for abortion, and that, simply, the focus should be on the services required to support a woman through a pregnancy rather than on provision for abortion (ibid.).
Senator Helms advised that at an appropriate time he would raise a point of order on the amendment (S 11053), and Senator Brooke said that he understood the point would be that the amendment was legislation on an appropriations bill; Senator Brooke argued that most of the votes of the preceding day had been legislation on an appropriations bill, and that, if Senator Helms raised his point of order, he would raise the question of the germaneness of Senator Helms amendment to the bill (ibid.). Senator Domenici said that he would present a "perfecting amendment" deleting from Senator Brooke's amendment the words "or where medically necessary" thus limiting the amendment to the cases "where the life of the mother would be endangered" (S 11053). Senator Brooke answered that the Senator's "perfecting amendment" would in effect go back almost to the Helms amendment which the Senate had already voted against. The Domenici amendment was then presented (as Amendment No. 606), and Senator Domenici argued that the words "medically necessary" had put the Senate in a position in which it did not know what it meant; he said that he assumed that all abortions that doctors had been doing were medically necessary in one or another sense, and that in consequence the Brooke amendment would abolish the whole area of debate; he said that he would not read the Supreme Court case, but that (S 11054):
". . . I believe if the Senator has it here he will find that they have held in talking about the right to abortion, not whether we pay for it, that psychological grounds are medically necessary. They are synonymous. I believe the Senator is opening that door, too. I just want to clarify it and make sure the Senator understands that if we strike it we are limiting it to the kind of things the Supreme Court said we had to do as a matter of right."
Senator Magnuson stated that Senator Domenici could achieve his purpose by simply voting against the Brooke amendment which would result in the Senate Committee amendment coming forward with its limitation to the two named diseases (S 11054). Senator Brooke pointed out that his amendment did not simply add the words "or where medically necessary" to the Senate Committee draft, but was in substitution for the words "or in the case of multiple sclerosis or renal disease, or other diseases which would seriously deform or debilitate the fetus"; hence, Senator Brooke pointed out, acceptance of the Domenici amendment would delete even the two diseases specifically mentioned in the Senate Committee version as well as the reference to deformed and debilitated fetuses (ibid.). A motion to table the Domenici amendment carried 59 votes in favor, 36 votes opposed, and 5 not voting (ibid.).
Senator Helms did not press his point of order (S 11055), and Senator Schweiker said that he would move to table Senator Brooke's amendment and the issue would be clear: if the Senators wanted a big loophole, a barn door opened, if the Senators wanted abortions for any purpose, they would vote not to table. On the other hand if the Senators voted to table they would be voting for the language in the Senate Committee draft, language which he had not originally supported but which he believed was better than that in the Brooke amendment. He therefore moved to table (S 11055). At the instance of Senator Goldwater a point of order with respect to the germaneness of the amendment to the appropriations bill was raised and submitted to the Senate, and the Senate voted that the amendment was germane, 74 voting that conclusion, 21 opposed, and 5 not voting (S 11055-56).
Additional statements were submitted, the first by Senator Moynihan, addressed to the Packwood amendment which he supported, in which he said (S 11056):
"In my view, decisions about birth and abortion are moral and religious decisions, which must be left to each individual or family to make. That at all events is the law.
"In this context I believe that there should be a minimum of social provision which makes this freedom of choice meaningful. This extends to the payment of medical costs for the indigent."
Senator Metzenbaum also submitted a statement in which he said (S 11056):
"The amendment's very design to withhold Federal funds for abortions flies in the face of all notions of fairness and equality. The amendment does not say: "Abortion is illegal.' Rather, it has the effect of saying: "You can have an abortion if you can afford it, but not if you can't.' The result of this provision would be that affluent women would continue to have abortions performed by high-priced specialists in modern hospitals, while poorer women would be forced to seek out cheap, and often unsafe, abortions."
Senator Schweiker then brought forward his motion to table the Brooke amendment and the motion to table was defeated, 37 voting in favor, 58 voting against tabling, and 5 not voting (S 11056). The Senate then voted on the Brooke amendment and the Brooke amendment was carried 56 voting in favor, 39 votes opposed, and 5 not voting (S 11056).
On August 1, 1977, Senator Bayh noted in the Congressional Record that the Justice Department's office of Legal Counsel, at the request of the Secretary, had prepared a memorandum concerning the interpretation of the language of the Hyde-Conte amendment of the preceding year; Senator Bayh said that he understood that the position taken by the Justice Department memorandum was that HEW could reimburse only for abortions in which the mother's life was endangered despite the Conference Committee report language (S 13225).
On August 2, 1977, Mr. Flood reported to the House from the Conference Committee on eighty-nine amendments to the appropriations bill that had been resolved by the Conferees, and he added that on one amendment (No. 82), relating to abortion, there was no agreement; he stated that he would offer a motion in the House to recede from its position and to concur in the Senate amendment with an amendment inserting the language of the Hyde-Conte amendment of the preceding year as a fair compromise between the two bills (H 8330). The Senate amendment (No. 82) was read to the House, and thereupon Mr. Flood moved that the House recede from its disagreement to amendment No. 82 and concur in it with an amendment substituting the language of the preceding year's Act reading (H 8348):
"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."
Mr. Flood explained that if the House concurred in the motion to recede from disagreement with Senate Amendment No. 82, he would at once offer a preferential motion to concur in Amendment No. 82 with an amendment inserting the language of the Hyde-Conte amendment of the preceding year; he urged adoption of the motion to recede (H 8348). Mr. Hyde supported the motion to recede as the only way to get to the amendment that he had originally offered (ibid.). In answering a question by Mr. Kazen, Mr. Hyde said that the language of the preceding year's Act "is the only language the Supreme Court had had before it." The motion to recede was thereupon agreed to (H 8348), and Mr. Flood moved that the House concur in the Senate amendment with an amendment substituting the Hyde-Conte language (ibid.). Mr. Flood reported that the House conferees had refused to agree to the Senate language and the Senate conferees had refused to offer any kind of compromise, although the House conferees were perfectly willing to agree to compromise language permitting abortions where necessary to save the mother's life; he strongly urged that the House vote for the compromise language because a large vote for it would send a clear message to the Senate, and expedite the enactment of the sixty billion dollar appropriations bill, which was very important to the public welfare (H 4348-49). Mr. Conte supported the Flood motion, saying that the government was presently spending about $ 50 million a year in federal funds for some 300,000 annual abortions, representing a serious abuse of the medicaid program; he argued that a significant number of people were using abortion as a form of birth control or as a matter of convenience, although the medicaid statute does not mention abortions; abortion funding, he said, arose out of administrative interpretation of the Act although it was a question which, in his judgment, should have been dealt with legislatively; he argued that the medicaid authorization should specifically prohibit or provide for covering abortions, but that the authorizing committees had not acted, and, out of "frustration with their inaction, here we are with this language on an appropriations bill"; he urged the House to reaffirm its position by voting the language of the Hyde-Conte amendment (H 8349).
Mr. Stokes opposed the Flood motion and argued that the House should recede from its disagreement to the Senate amendment and concur in that language; he said (H 8349):
"Although I am certainly not satisfied with the restrictiveness of the Senate language, I believe that this is a question of civil rights and a question of equal access under the law for poor women. I believe that acceptance of the Senate language is the least that the house can do. Under the Senate language we would be sticking to our job which is legislating and allowing the medical profession, that is, the physicians, to treat the individual medical conditions of their patients in accordance with their best medical judgment."
He argued that the Congress should not restrict doctors' ability to treat their patients in what they considered the medically necessary way, and said that to do so would also be an "unconscionable intrusion into the privacy of the doctor-patient relationship" (ibid.). To the argument that the term "medically necessary" was too broad, Mr. Stokes answered that it was the only realistic language, because there were an extraordinary number of medical conditions that would make continued pregnancy inadvisable, and he quoted a medical authority as saying that it would not be possible to devise a "predetermined list of conditions completely including each individual patient for whom a procedure is medically necessary and excluding all others"; he asked whether the House would force poor women to continue pregnancies when they were carrying diseased or seriously deformed fetuses; he asked whether the pregnancies of teenagers which were high risk for the teenager as well as for the baby had to be carried to term (ibid.). He thought it ironic that those who would not allow poor women to obtain abortions because they felt it was necessary, would allow these same women to subject themselves to self-induced or illegal abortions and risk their lives; he referred to the HEW's supposed estimate that 25,000 persons would suffer serious injury requiring hospitalization from illegal abortions if denied federal funding; he referred to the Supreme Court's statement that the woman seeking abortion could resort to private agencies, and argued that it was because the poor had not had access to medical services that Congress had enacted medicaid (H 8349-50). He urged the Members to vote not on the question of their view on the morality of abortion but to vote instead upon the right of the poor to obtain abortions when it is deemed medically advisable; he asserted that the Supreme Court clearly portended that it was the Congress which had to deal with the question of federal funding; he said that those who assumed that they could vote for the Hyde amendment in 1976 because the Court would take care of the issue for them had the responsibility to act in accordance with a sense of fair play in at least making sure that poor women seeking abortions for medical reasons had the chance to have a safe abortion (H 8350).
Mr. Obey said that he was a Catholic, was opposed to abortion, thought that "indiscriminate abortion brutalizes all of us and all of society," and thought that in the main the government should not pay for abortions (H 8350). He thought, however, that the Hyde-Conte amendment language did not go far enough in dealing with abortions in extenuating circumstances; he said (ibid.):
"For instance, it makes no exception whatsoever in the case of rape or incest. It makes no exception in the case of life-shortening diseases, diseases such as renal disease, although we were willing to spell that out in the report last year."
He argued that doctors, rather than medically uneducated politicians like himself, should determine what conditions were life-endangering or life-shortening; he asked that the House reject the Hyde-Conte language because the previous year's conference report, among other things, indicated that the Congress would make exception in the case of life-threatening diseases such as renal disease; he stated that the previous year's conference report also did not intend to prohibit medical procedures necessary to terminate ectopic pregnancy nor to exclude rape or incest, nor to prohibit the use of drugs or devices to prevent the implantation of the fertilized ovum; he asked the House to vote down the amendment before it so that he could offer an amendment dealing specifically with rape and incest victims and cases in which the mother "is afflicted by potentially life shortening diseases which will be aggravated if the fetus is carried to term," and which would also exclude from the prohibition drugs or devices to prevent the implantation of the fertilized ovum or medical procedures necessary to terminate ectopic pregnancy; Mr. Obey noted that in the Attorney General's opinion letter to the Secretary (dated July 27, 1977) the Attorney General had said that the Hyde-Conte amendment of the preceding year did not permit funding of abortions in the case of pregnancies resulting from incest or rape; Mr. Obey said that the language he intended to propose would make it clear that the House intended to allow an exception from the statutory prohibition in the case of rape and incest (H 8350).
Mr. Oberstar supported the Flood motion; he argued (H 8350):
"Much has been said during this debate about the disadvantaged and about possible discrimination against the poor, in the funding of abortions. We ought to be very clear that where there is no basic human right there can be no discrimination. There is no basic right to a federally financed abortion; therefore to preclude the use of Federal funds for that purpose is not to deny the poor or any other class in society of a so-called right, since no such right exists."
He argued that the real discrimination against the poor lay in the inadequacy of the health care provided for parents and children, born and unborn; he gave details of the inadequacy of health care, and the extent to which the health services provided had failed to reach the poor children for whom the Congress intended them; he continued (ibid.):
"The argument that poor people need Federal aid to abort their unborn will have a hollow ring until we have adequately provided Federal funds for a wide range of programs that will make it largely unnecessary for poor people or people in any economic class to even consider abortion as an option."
He argued that the $ 53 million spent in 1976 to finance abortions should be reallocated to the liberalization of adoption laws, adequate maternal and child health care, aid to unwed mothers, prenatal care, support of rape prevention and treatment centers, increased research on birth defects, and programs intended to reduce poverty and eliminate its causes (H 8350-51).
Mrs. Schroeder urged a vote against the Flood motion (H 8351); she said that she was the mother of two children and had lost two children and that she did not "have children very well"; she continued (ibid.):
"After the birth of my last child I spent 10 days in intensive care. I am not sure whether any doctor would say to me, if I were pregnant again, that I would die; but I am also not sure that I want to put my family through trying to decide whether or not I live. I resent very much my Government's saying to me, if I am poor, that my family would have absolutely no alternative but to either attempt to find the money during a period of time that realistically is less than 5 weeks or that I should gamble and hope that I live through it.
"I think that when we look at the issue, we will find that we really ought to allow language including something about "medically necessary' in the amendment. If something such as a "medically necessary' provision were in there, it would cover someone like myself if I were unfortunate enough to have to be relying on medicare or medicaid."
Mr. Michel said that the record should not indicate that the House was indifferent to "the gravity of the issue, the volatile, the emotional issue that is before us" (H 8351). He said that the language was exactly the language that had been fully debated in the preceding year and that he did not think that any Member would change his position by reason of what was then said "unless he or she is influenced in one way or the other by the most recent Supreme Court decision, which, frankly, in my opinion, buttresses the House's position more this year than was the case last year" (ibid.). Mr. Pritchard expressed disappointment at the parliamentary maneuvering which had prevented the House from voting directly upon the Senate amendment; he said that he was disappointed because he did not think that the House would come out with the position that the majority truly held on the issue (H 8351). Mr. Michel answered that the forthcoming vote on the Flood motion really amounted to either accepting the position of the House or the position of the Senate (ibid.).
Mr. Hyde answered the argument that the House should not attempt to play the role of doctor by saying that it should not "play God" (H 8351). Speaking of the crippled and deformed, Mr. Hyde said that the suicide rate among crippled and deformed people is almost zero; that the people who wanted to destroy their lives were the "jaded people who seem to have wealth and affluence, but the crippled and deformed want to live" (ibid.). He said that there had been two significant developments since the debate in the House on June 17th; the Supreme Court had decided that a legislature was not forbidden constitutionally from denying tax funds to pay for abortions; and a New York Times CBS telephone poll of 1447 persons in late July reported that to the question whether the government should help a poor woman with her medical bills when she has a baby, 64% answered yes and 26%, no; that to the next question, whether the government should help a poor woman with the cost of contraceptives to prevent pregnancy, 63% answered yes, and 29%, no; and that to the third question, Do you think the government should help a poor woman with her medical bills if she wants an abortion, 38% answered yes, 55% answered no, and 7% said they did not know (H 8352). Mr. Hyde argued that (H 8352):
"Those of us who accept the medical scientific, clinical evidence that a fetus is human life and that abortion kills that human life, and who object to killing as a solution to the problems of poverty, are in the main stream. Some of the media and some militant organizations paint us as cultural lags and as throwbacks to the middle ages. But the New York Times and the CBS poll says most Americans oppose using Federal Funds for abortion, so it is, we who understand the mood of America. Those of us who oppose Federal Funds for abortion respect the consent of the governed."
He argued that if there was discrimination it was against the unborn of the rich because no voice was raised to defend them if their parents wanted "to kill" them, while the unborn of the poor had a fighting chance to survive (ibid.). He argued that the Senate amendment was a gesture that would accomplish nothing, and he quoted Dr. Louis Hellman (formerly of HEW) as admitting that 90% of the medicaid abortions currently being performed could be performed under the Senate language (ibid.). He argued that a caring, humane society does not kill those who are "unwanted," whether the senile, the deformed or unborn children (ibid.).
Mrs. Fenwick spoke against the amendment saying (H 8352):
"If we could stop abortion, if this or any other bill would stop abortion, it would be different. It does not. Nothing does. It never has and probably, sadly, never will. There have been self-induced abortions and bad abortions and back street abortions ever since life began on this earth."
She asserted that the number of medicaid abortions did not signify an increase in abortions because no one had listed the number of irregular abortions performed by unqualified persons; she stated that when she was in Chile she was told that 35% of the beds in every hospital in the nation were filled with women dying from self-induced abortions, and that that did not occur in Puerto Rico where everything was legal (ibid.).
Mrs. Burke (California) argued (H 8353) that the House should not think that it was being asked to vote for the same thing it had voted on a year before, because in the preceding year there had been reliance on the language in the committee report indicating the expectation that rape, incest and other instances were excepted from the prohibition; she pointed out that the Attorney General had just advised that if the House intended to give assistance to victims of rape and incest it would have to say what it meant, that the Hyde-Conte language before the House did not do that, and that its meaning could not be extended by a committee report; she questioned the poll results on the ground that the pollsters had not asked such questions as "Would you be willing to provide Federal assistance to assist a 12-year-old girl who has been the victim of rape?", nor such a question as "would (you) be willing to allow Federal Funds that would prevent a mother from being crippled if she was required to carry a child to term"; she argued that the questions involved could not be simplified in a poll (H 8353).
Ms. Holtzman opposed the amendment on the ground that it would not provide medicaid funds for abortion in the case of rape or incest or the case in which the mother's life would be forever marred and she be maimed or crippled if she had to give birth; she argued (H 8353):
"I do not think anybody in this House has a single illusion about the fact that by supporting this amendment we are stopping abortions. Instead, we are simply condemning the poor women of this country, and in some cases these are teenagers or very young girls, to the horrors of back alley abortions or self-mutilation."
Mr. Volkmer urged support of Mr. Flood's motion (H 8353), arguing that the amendment did not deprive anyone of the right to an abortion nor deny any doctor or clinic the right to perform an abortion.
The Flood motion was then put to a vote and it carried, 238 voting in favor of it, 182 opposed, and 13 not voting.
The deadlock in the conference committee on the abortion issue was reported to the Senate on August 4, 1977 (S 13641-42), and the Senate turned to consideration of the abortion language that had been agreed to in the House on August 2 (S 13670). Senator Magnuson moved that the Senate disagree to the House amendment to the Senate amendment on abortion (No. 82), and Senator Schweiker, for himself and Senator Helms, moved that the Senate concur in the House amendment to Senate amendment No. 82 (S 13670).
The long course of debate and of successive amendments that led in the end to the language in the joint resolution of December 9, 1977, brought forward few, if any, arguments that had not been repeatedly made in the preceding year and in the earlier debates in the House and Senate on H.R. 7555. Senator Schweiker urged concurrence in the House amendment, drawing attention to the Times-CBS poll of July 29, 1977, and repeating Dr. Hellman's statement that under the "medically necessary" language of the Senate amendment 90% of all of the abortions currently being performed under medicaid would continue (S 13670-71). Senator Helms reported the termination of the temporary restraining order in the present McRae case (S 13671). Senator Brooke argued that the Senate should reaffirm its position of June 29 on Senate amendment No. 82, and insisted again that the issue was essentially one to be decided by the physician in each individual case, citing medical association statements about the impossibility of defining the occasions which would make up medical necessity (S 13671). Senator Magnuson pointed out that the voluminous hearings on the appropriations bill contained no evidence whatever on the abortion issue (ibid.), and Senator Brooke pointed out that he was not asking the Senate to take the extreme position marked by the Packwood amendment (S 13672). Senator Javits urged the Senate to reaffirm its position, arguing that the Hyde amendment was discriminatory, that it made no provision for rape, and ignored the consequences of self-induced abortions that would follow if medicaid abortions were withdrawn; he asserted that the Senators in opposing medicaid funding were not being honest with themselves but were responding to their prejudices and not to the justice which the country requires between rich and poor (S 13672). Senator Bartlett urged (S 13672-73) adherence to the action taken in the preceding year particularly in view of the Supreme Court decisions in Maher, Beal and Poelker and of the Times-CBS poll; he argued that to fund abortion would be to encourage abortion among the poor; referring to the list of religious organizations said to favor legalized abortion, he argued that the Senate should "keep religion out of the debate on abortion," that it was a matter of science, pure and simple, and that the issue was whether to use the resources of the federal government to deny the most basic of human rights, the right of life to unborn children, "the most helpless, the most defenseless, the most innocent among us" (S 13673).
Senator Domenici argued (S 13673) that the expression "medically necessary" was not really a check on abortion-on-demand but would in the opinion of experts permit 90% of the abortions permitted under the abortion-on-demand concept; he argued that "medically necessary" would approach being the will of the expectant mother rather than an expert medical decision of the kind that only the medical profession could make, and that the Supreme Court decision from which the expression "medically necessary" was drawn had indicated that mental anguish would justify a doctor's finding that a woman needed an abortion; he argued that under the Supreme Court decision no issue of right was involved but a legislative decision about what abortions should be paid for through medicaid; he argued that Senators could not satisfy their anti-abortion constituents by voting for the Brooke amendment and against the Hyde amendment because the constituents were all going to find out soon that a vote for the Brooke amendment meant paying for abortion-on-demand. Senator Brooke, answering (S 13674), said that the distinction between the two amendments was clear and that the Brooke amendment was not intended to mislead anyone; he said that the Hyde amendment would not include victims of rape and incest; as to the term "medically necessary," Senator Brooke cited Senator Domenici to the language from Beal v. Doe (432 U.S. at 442, footnote 3, 97 S. Ct. at 2369, footnote 3, quoting Doe v. Bolton, 1973, 410 U.S. 179, 182, 93 S. Ct. 739, 742, 35 L. Ed. 2d 201) where the Court said:
"Whether "an abortion is necessary' is a professional judgment, that . . . may be exercised in the light of all factors physical, emotional, psychological, (familial,) and the woman's age relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment." (Senator Brooke omitted the word "familial" in reading the excerpt from the footnote in the opinion.)
He argued (ibid.) that the term was not new, that it was "mischievous" to suggest that a woman could assign any trifling reason and a qualified doctor would thereupon say that she was entitled to an abortion; he said that the concern was for the life and the health of the mother and the health of the fetus; saying that some diseases are worse than death, that in such circumstances abortion was the only humane thing to do, he contended that rejecting the Hyde amendment language represented a humane rejection of the position that abortion should not be allowed for rape and incest victims, or where the abortion was medically necessary to save the life or the health of the patient and the health of the fetus; under his position the decision would be left to doctors and not to Senators who, in his opinion, were not competent to make that judgment. Senator Bartlett (S 13674) made the point that in abortion the fetus is not saved, and Senator Brooke answered that he was speaking of the fetus infected with a disease that would mean a life of pain and suffering for the child and a life of suffering for the mother, the father and the family of the child. Senator Bartlett questioned whether a prenatal determination of disease was made and Senator Brooke indicated that it had been determined that if the mother had a certain disease or was being treated with certain drugs that the fetus would be affected; he said, however, that these were medical determinations for doctors to make (S 13674).
Senator Magnuson illustrated what he thought was the incompetency of legislators to make judgments in the matter by referring to the effort in committee discussions to provide that abortions could be performed on women who became pregnant under 15 years of age; he said that the House conferees would not agree even to dropping the age to 13 years (S 13674); Senator Bartlett indicated that no matter how young the prospective mother was, abortion by agreement between her and the physician would nevertheless be wholesale abortion (S 13675). Senator Magnuson said that he did not want to decide, and he did not want the Senate to decide, whether or not a twelve or thirteen year old child should bear a child or be aborted (ibid.). Senator Brooke referred to the many genetic and other diseases that could adversely affect the life of the mother, her health and the health of the fetus and pointed out that the Supreme Court (Roe v. Wade, 1973, 410 U.S. 113, 153-154, 160, 93 S. Ct. 705, 726-727, 730, 35 L. Ed. 2d 147) had said that abortion was a personal and private matter between a woman patient and her doctor, and that the woman had a constitutional right to abortion, and that in the more recent cases the Supreme Court had decided that the medicaid matter "is best left up to the courage and the justice of Congress and the State legislatures to make the decision" (S 13675); he continued:
"What good is a constitutional right if there is no remedy? When that statement was made and I trust it was made inadvertently the other day that women can go and get an abortion if they want it, it should also be stated that poor women cannot go to a hospital and get an abortion."
Senator Brooke reiterated that the Hyde amendment would discriminate against poor women and would not stop abortions, and that the amendment he proposed would say that "women who are raped, children who have been violated by incest, or if it is medically necessary, can get an abortion if they are too poor to pay for it" (ibid.).
Senator Bayh said that the problem involved religious and moral feelings and decisions and also medical decisions, and that the Congress was not qualified to make the medical or the moral or the religious decisions (S 13675). He said that the concept of "medical necessity" was not before the Senate for the first time but had been in the joint statement in the previous year's conference report; he said that he thought that the Senators who voted for it in the preceding year had believed that the Hyde language would be modified by the report language, which had clearly said "medical necessity" (supra p. 764); he said that it now appeared from the opinion of the Justice Department that the language would not be so interpreted; indicating his own disapproval of abortions of "convenience," Senator Bayh said that he was worried about the cases of disease, rape and incest, as well as about the significant number of teenage pregnancies; he argued that the doctors should be allowed to make the medical decision and the pregnant woman accorded the right, in consultation with the doctor, to make the personal decision that she alone could make; he said that they were not deciding whether the 200,000 to 300,000 abortions would take place but where they would take place and under what conditions (S 13676).
Senator Schweiker argued that a former Deputy Assistant Secretary of HEW for Population Affairs had said that with the words medically necessary in the enactment 90% of the abortions could be performed (S 13676). Senator Bayh said that the former Deputy Assistant Secretary had characterized his statement as a guess, and had added that it was not based on an understanding of Senate language but rather upon a definition used by the World Health Organization, which allowed for social abortions (ibid.). In answer to a question put by Senator Javits, Senator Schweiker agreed that he would be equally opposed to the language even if it allowed only 60 or 70 or 40% rather than 90% of the abortions (ibid.). Senator Schweiker argued that the contention that those favoring the Hyde amendment were a minority seeking to impose its view on a majority of Americans was refuted by the CBS-New York Times poll showing that although over 60% of those polled favored government assistance for pregnancy care and for contraceptives, only 38% favored governmental funding of abortions; he argued (ibid.):
"This poll makes it very clear that there are certain limits to public financing, public support, and social policy where the public believes we should draw the line. That is the position that we are taking here today."
Senator Brooke then argued (S 13676-77) that the poll did not present the question on abortion in terms related to medically necessary abortion or in terms of abortion to save the life of the mother; he suggested that a 38% affirmative answer was very high in view of the form in which the question was asked. Senator Schweiker answered that CBS-Times had framed the questions, and that they were not known as advocates of right wing causes (S 13677). Senator Domenici argued that it was prudent not to put the question in terms of "medically necessary" abortions because those words were meaningless (ibid.). Senator Helms repeated the argument (S 13677) earlier made that there was an appalling contradiction between the amount of human concern and costly scientific attention being devoted to preserving the lives of prematurely born infants whose parents were on their knees praying for the fragile lives and the debate in the Senate about the deliberate termination of innocent human life with tax money in the face of opposition to abortion by the vast majority of Americans (S 13677).
Senator Brooke asked whether Senator Helms believed that a poor child that had been abused by her father and became pregnant should be entitled to an abortion, or whether the 13 year old victim of a rape should be entitled to a medicaid abortion if she became pregnant (S 13677); but Senator Helms answered that the argument from incest and rape was a red herring, that statistically the incidence of pregnancy from rape and incest was "so infinitesimal as to be impossible of serious consideration in a discussion of such magnitude" (ibid.).
Senator Thurmond said that he had taken the position that federal funds for abortions should be restricted to cases in which the life of the mother was endangered or in the case of rape, incest, or dread disease, and that language permitting use of federal funds "where medically necessary" was unacceptably broad (S 13677). He said he would nevertheless vote "Yes" on the Hyde amendment, because he believed it was less dangerous to restrict federal funds than to open the door "to abortions under unwarranted circumstances" (ibid.); ideally, he said, the matter of abortions should be settled once and for all by the people through the constitutional amendment process (S 13678).
On the motion to concur in the House amendment to Senate amendment No. 82 (the House amendment substituting for the Brooke "medically necessary" language the language of the Hyde amendment of 1976) the vote was 34 in favor of the motion, 59 opposed and 7 not voting (S 13678). On the motion to disagree with the House amendment to Senate amendment No. 82, the vote was 60 in favor of the motion, 33 opposed and 7 not voting (ibid.). The Senate then agreed to a motion to request a further conference with the House on the disagreement to the House amendment to Senate amendment No. 82 and that the Chair be authorized to appoint Senate conferees (S 13677).
House conferees were appointed on September 9 (H 9061). On September 26, 1977, Mr. Stokes presented H.Res. 780, a resolution instructing the House conferees to recede from the House amendment to Senate amendment No. 82 and to agree to the Senate amendment; Mr. Stokes explained that the purpose was to present to the Senate a definite action of the House specifically directed to the Brooke ("medically necessary") amendment (H 10094-95). On September 27, 1977, Mr. Stokes argued for H.Res. 780, pointing out that the Senate had twice voted approval of the language of the Brooke amendment and had twice voted disapproval of the House language, the Hyde amendment; he urged that, since the fiscal year would expire in three days and the appropriations bill, involving $ 60 billion in money items, was the most important piece of social legislation passed by the House, the House should in a spirit of compromise assent to the Senate language; Mr. Stokes himself preferred no language in the bill, and his attitude was summed up in his saying (H 10129):
"For 3 months your constituencies and mine have been denied this important legislation because of this punitive and pernicious Hyde amendment."
Mr. Bauman called for defeat of the resolution (H 10129) as not a compromise, saying (ibid.):
"There can be no compromise on the issue of life and death. That is what we are debating here today. The Senate language is so broad that without question it sanctions abortion on demand."
Mr. Bauman argued that if the House soundly rejected H.Res. 780 the Senate would have to adopt the House position as it had done in the preceding year (ibid.). Mr. Michel approved the parliamentary step of having a House vote on the Brooke amendment, and he urged the House to vote against H.Res. 780 so that the House conferees could return to the conference with a good faith statement that the House had reaffirmed its earlier position (H 10129). Mr. Flood opposed agreement to the Senate amendment on the ground that the expression "medically necessary" would open the door to abortions for all sorts of reasons, especially those related to mental health, family planning, or emotional or social convenience; he urged defeat of the resolution so as to strengthen the hand of the House conferees when they went back to conference.
Mr. Conte supported the Hyde language, opposed the Brooke language, and therefore urged defeat of H.Res. 780 (H 10130); he said of the issue (ibid.):
"It is difficult because support or opposition to abortion is not based on economics or practicality, but rather on our moral and philosophical beliefs.
"While I disagree, I respect the right of an individual to believe that abortion should be a matter of personal choice. However, it does not necessarily follow that such a choice should be exercised at public expense."
The large number of abortions indicated, Mr. Conte said, that abortions were being performed as a matter of convenience or as a matter of birth control and not as a matter of genuine medical necessity (ibid.). He argued that "medically necessary" would mean an abortion that was requested by a woman; the medical testimony, he urged, was that abortion is very rarely a medical necessity; he said that when California changed its abortion law in 1968, 92% of the abortions done in the first year were for mental health reasons; he equated that with "abortion upon demand"; he said that pregnancy rarely resulted from rape, and that law enforcement officials said that inclusion of the rape-incest language would induce individuals to file false reports of rape to become eligible for federal funding for abortion; he pointed out that the House amendment would not prevent treatment directed to preventing fertilization or the implantation of the fertilized ovum in promptly reported rape cases before the fact of pregnancy had been established; he agreed that excessive use of DES can induce cancer, but he argued that it was only excessive use that did so, that alternatives were available and that he would advocate funds to promote research and new programs for rape victims; he referred to Dr. Louis Hellman's estimate that 90% of the abortions performed would still be financed under the Brooke language whereas possibly only 1600 abortions a year would be financed under the Hyde language (H 10130).
Mr. Roybal left his position unclear: he argued that, having to choose between the language of the Hyde-Conte amendment of the preceding year and the language from the joint statement accompanying the conference report of the preceding year, he favored the language of the joint statement (H 10131-32).
Ms. Holtzman urged agreement to the Brooke amendment saying (H 10132):
". . . I hope almost every Member would agree that to deny a safe medical abortion in cases of rape is unconscionable and to deny a safe medical abortion in the case of incest is unconscionable, that to deny a careful, safe abortion, in a circumstance where a doctor determines it is medically necessary is unconscionable."
She argued that in agreeing to the life endangerment exception the proponents of the Hyde amendment had already made a compromise so that the choice was no longer between compromise and no compromise. Mr. Giaimo argued (ibid.) that "it behooves us all to find a middle ground, a compromise if you will, so that we can get on with this very difficult situation which afflicts not all women, but which afflicts poor women"; he argued that the compromise language was reasonable, that it did not offend or should not offend anyone's sensibilities, even if he opposed abortion.
Mr. Obey (H 10132) urged defeat of H.Res. 780 so that the House could return to the conference and reach a compromise "which is different than both the Senate language and the House language"; he argued that if the language of either body prevailed the issue would be renewed from year to year depending on which group polled a majority in the particular session; he said (ibid.):
"I think we want a law which is consistent for all groups to live with, even though they may not like it."
He urged defeat of the language of both House and Senate amendments and a return to conference so that "we can get some rational compromise" (ibid.).
Mr. Hyde opposed H.Res. 780 as not a compromise but total capitulation (H 10132). He cited Dr. Jane Hodgson as having testified in the present case "that all abortions are medically necessary" and repeated Dr. Hellman's alleged statement that 90% of medicaid abortions would be permitted under the medically necessary language; he said that the New York Times had quoted a Senator as asking whether any abortion would not fit the description and added (ibid.):
"The pregnant woman would not even have to claim she had a headache or athlete's foot to get an abortion under this language."
To the argument based on the probable increase in back-alley abortions if the Hyde amendment were continued, Mr. Hyde answered that the CDC had been monitoring for maternal deaths due to back-alley abortions and had discovered none since August 4th when the Courts "permitted enforcement of the Hyde amendment," whereas the April 1977 CDC statistics indicated that "the leading cause of abortion-related maternal death in the United States is legal abortion" (H 10132). To the argument that the poor would prefer to wait for food, education and housing rather than be denied abortion funding he answered by quoting the Reverend Jesse Jackson as opposing federal funding of abortion and advocating applying the funds to meet human needs and in new directions of caring for the most precious human resource, children; referring to talk of "the quality of life" Mr. Hyde said that "the quality of a society is measured by its concern for the rights of human beings who exist on the very edge of full humanity the very aged, the dispossessed, the dying, and the preborn"; he argued (H 10133):
"Our society wavers on the razor's edge of a choice between efficiency, economy and comfort on the one hand, and respect for the lives of the weak, helpless, unproductive, and unborn on the other.
"The cause against wholesale abortion is a cause for the soul of a society that must make that choice do we want efficiency and convenience more than respect for the helpless, defenseless lives that interfere with that convenience?"
Mr. Hyde closed by asking whether the House wanted to commit American society to violence as a solution to its socioeconomic problems, and contended that the resolution was a step toward consigning untold thousands of preborn children to death for the crime of being "innocently inconvenient," and a step toward transforming the medical profession from healers "to executioners-for-hire" (ibid.).
Mr. Tucker opposed the Hyde-Conte language because it would prohibit funding abortions of poor people even where the mother's health would be permanently impaired and she left permanently crippled or with permanent brain damage (H 10133). Mrs. Schroeder said that if only the women members of the House voted on the issue it would adopt the Senate language; she suggested that the rape and incest exception might lead to assertions of rape in order to obtain an abortion followed by being beaten at home for alleging rape or incest; she said that one in ten teenage girls in the United States had become pregnant in the preceding year, that death from complications of pregnancy and childbirth was 13% greater for teenagers and 60% greater for children 14 or younger than for women in their early twenties; she said that babies born to teenagers are two to three times more likely to die in their first year than babies born to women in their early twenties
, and that teenagers bore nearly one-fifth of the babies born in this country, two-fifths of them being born out of wedlock; she concluded (H 10133):
"Allowing doctors to perform abortions when they determine one is medically necessary is not promiscuous abortion on demand. We are talking about complicated medical decisions and the Congress should not start down the dangerous road of quarterbacking doctors' professional opinions in this area."
Mrs. Burke (California) argued that there were two classes of women for whom childbirth could involve risk, women over 35 and women under 18, and that without abortion funding it would only be the poor women who would be required to take the enhanced risk of childbirth incident to their age (ibid.). Mr. Rudd opposed the resolution (ibid.), and supported the Hyde amendment. He referred to a letter he had received from the Navajo tribal superintendent of police who had said that the ultimate effect of the Senate version would be "the filing of false rape and/or incest reports by women wishing to obtain free abortions at taxpayer expense"; he noted that the Hyde amendment "protects the woman who is the victim of rape or incest prior to proof of pregnancy"; he said that the House had a moral obligation to stand by its earlier decision (H 10133-34).
Mr. Dornan urged the House again to insist, as it had on five previous occasions, on limiting abortions to those necessary to save the life of the mother (H 10134). He quoted Dr. Jane Hodgson as having testified in the present case that
"In my opinion, "medically necessary' means any abortion that was requested by a woman." (Cf. Tr. 99-101.)
Mr. Dornan referred to Dr. Louis Hellman's opinion and identified Senator Packwood as having publicly asked whether there was any abortion that could not fit within the "medically necessary" language (ibid.).
The debate was closed by Mr. Stokes (H 10134), and when the question on H.Res. 780 was put, the resolution to concur in the Senate amendment was defeated, 164 voting in favor, 252 voting against it, and 18 not voting (H 10170).
On October 3, 1977, Mr. Flood submitted to the House a conference report that House and Senate conferees were in disagreement on Senate amendment No. 82 (H 10501). On October 7, 1977, Senator McGovern had printed in the Record the Public Health Brief prepared by CDC personnel entitled Restricting Medicaid Funds for Abortions: Projections of Excess Mortality for Women of Childbearing Age; it calculated, on the basis of the 1974 statistics, the increase in mortality that would follow if the women who had abortions had carried their pregnancies to term; the Brief pointed out that the maternal mortality ratio is many times higher than the abortion mortality ratio, and that both the maternal and the abortion mortality ratios of white women are very markedly lower than those of blacks and other women; the Brief referred also to estimates prepared by Dr. Christopher Tietze that 70% of those denied legal abortions would resort to illegal abortion, with an increase in mortality risk from four per 100,000 abortions to 40 per 100,000 abortions; the Brief also estimated the effect of a simple delay of two weeks in obtaining legal abortions due to difficulty caused by the cessation of federal funding. The Brief estimated that the total excess deaths would be 49, and if it were assumed that 70% of the women denied funded abortions would seek illegal abortions then the estimate was that there would be 77 deaths (S 16739-41).
On October 12, 1977, Mr. Flood moved that the House recede from its amendment to Senate amendment No. 82 and stated that, if the House did so, he would then offer a new amendment to Senate amendment No. 82 reading (H 10829, 10832):
"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. This section does not prohibit payment for medical procedures, performed before the fact of pregnancy is established, necessary for the prompt treatment of the victims of forced rape or incest reported to a law enforcement agency. Nor are payments prohibited for drugs or devices to prevent implantation of the fertilized ovum, or for medical procedures necessary for the termination of an ectopic pregnancy."
Mr. Flood reported that it had been impossible to reach agreement and he expressed the hope that the language that he now suggested would furnish a basis for agreement with the Senate (ibid.). Mr. Steers said that a letter received from Senators Magnuson and Brooke had indicated that the language to be proposed by Mr. Flood would not be agreed to by the Senate, and he therefore expected to offer, if Mr. Flood's motion was defeated, the Brooke-Magnuson wording which would 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 or for victims of rape and incest or if the mother or fetus would suffer serious health damage."
Mr. Steers argued (H 10830) that the language that he proposed presented a genuine compromise, that serious physical damage was considerably narrower than "medically necessary" but would include such things as cardio-vascular disease whether contracted before or after the pregnancy and such other things as neurological disease, carcinoma, severe psychiatric disease, schizophrenia or suicidal paranoia. Mr. Steers had expressed concern about the effect failure to enact the Appropriations Act would have on the programs, particularly those affecting his constituents, and Mr. Conte pointed out that it would always be possible to pass a continuing resolution pending the working out of the disagreement (ibid.). Mr. Michel urged the House to approve the language suggested by Mr. Flood rather than that suggested in the Senate and reported by Mr. Steers (ibid.), and Mr. Hyde urged defeat of Mr. Flood's motion to recede, arguing that the Senate position was "abortion on demand, no matter how one colors it," and said that the House ought to stand on its position, that "the position is morally sound; I think it is the right one for America" (H 10830).
Mrs. Fenwick argued that what the House was discussing was the situation of children in the seventh and eighth grades who were expecting babies, an entirely new circumstance arising from the fact that for the first time children at the ages of eleven through fourteen are able to bear children; she said that honorable clergymen were on both sides of the question, that it was one on which devout and earnest theologians were divided; she continued (H 10831):
"What should the State do under these conditions? Surely, it would be wrong to mandate abortions. But is it not equally wrong to forbid them, especially to the poor, when the clergy are trying to tell us that there are two sides, can we be sure when we take one side that we know God's will?"
Ms. Mikulsky was opposed to the Hyde amendment (H 10831); she favored the first of Mr. Flood's motions but opposed the second because his new language would allow only for prompt medical treatment before the fact of pregnancy, although the child who had been raped or had been a victim of incest would in many instances not tell her mother until after the pregnancy was established; she opposed the Flood language because the procedures it referred to would be either a D & C or the administration of the so-called morning-after pill (DES) which she said the Congress did not allow even to be given to cows (ibid.). Mr. Bauman opposed the motion to recede (ibid.) and urged the House to stand on its position, saying:
"I have talked with the leaders of the Right to Life Movement Protestant, Catholic, and Jewish and all of them feel that the best possible thing we can do to save human life and to prevent the funding of abortions with taxpayers funds is to stand by the House language."
Mr. Volkmer opposed the motion to recede, arguing that the language in the Hyde amendment was language "that has already been interpreted by the Supreme Court" whereas the new language had not been (ibid.). Mr. Michel asked the House to vote for the Flood motion to amend as the only practical thing to do in the parliamentary situation (H 10831). The Flood motion was then put to a vote and was carried, 209 voting for it, 206 against it and 19 not voting (H 10831-32).
Mr. Flood then offered his motion and explained that the compromise language was intended to make it clear that the House did not seek to inhibit the use of morning-after pills or IUDs as methods of birth control or the termination of ectopic pregnancy; he noted that the language also provided for medicaid payments for treatment of rape and incest victims on the stated terms and conditions (H 10832).
Mr. Steers specifically objected to the requirement that the rape be a "forced" rape rather than a statutory rape and, saying that he would introduce his broader amendment if the Flood amendment was defeated, he said that the statute should permit federal funding for abortions in the case of a very large number of diseases including psychiatric ones (H 10832-33). Mr. Seiberling pointed out that there were involved not only serious health problems of pregnant women but also the cases of fetuses which had been determined prenatally to be deformed or hopelessly diseased (H 10833). Mrs. Schroeder opposed the language proposed by Mr. Flood (ibid.), criticizing the vagueness of the term "endangered," and objecting to the report requirement, particularly in the case of incest: she argued that a child reporting an incest would be abused at home, so that it would be necessary to provide a shelter for a child so reporting; finally, she objected to the "forced" requirement in the case of rape, noting that there had recently been reported childbirths by three women who were ten years of age (ibid.). Mr. Hyde reluctantly supported the amendment (H 10833), noting that so far as reported forced rape and incest were concerned, the statute would not permit conscious abortion, although that might occur from treatment procedures taken before the fact of pregnancy had been established (H 10833-34). Mr. Brinkley inquired whether the word forced should not be deleted so that the treatment permission would extend to girls eleven to sixteen years old (H 10834). Mr. Hyde answered that if the word forced were deleted, any woman under eighteen would be entitled to an abortion simply by asserting that she had been raped; he said (ibid):
"It is wrong to take an innocent human life, no matter how unfortunate, no matter how tragic the circumstances in the creation of that life is."
In dialogue with Mrs. Burke (California) Mr. Hyde explained that the rape treatment would be appropriate even two months after the rape if the woman did not know that she was pregnant and the usual tests did not establish the pregnancy (ibid.). Mr. Oberstar said that he would have preferred the language of the Hyde amendment but would, as a compromise, be prepared to accept the unsatisfactory compromise language of Mr. Flood as preferable to still other alternatives (H 10834). In dialogue with Mr. Seiberling Mr. Hyde took the position that the life endangerment language sufficed to cover the genuinely serious health problems of the woman, and he contended that even if the fetus were to be born a Mongoloid it would be a "human being" that he would think that society would find a way to take care of rather than exterminating it (H 10835).
Mr. Early said that in the meetings of the conference committee the full House representation was always present but only 40% of the Senate conferees were present, and that the result had been that in the meetings the House conferees tried to compromise with each other, then offered their compromise points to three Senators present, and they, with little discussion, rejected them; he argued that the question was not whether or not the House opposed abortion on demand but rather how abortions should be paid for, and he did not believe that the federal government should do so; arguing that it was for the states to provide funding he said that the Alan Guttmacher Institute reported that of the 260,000 federally funded abortions performed in the United States in 1976 120,000 had been performed in California and New York; he added that governors from 7 other states had suggested that if the federal government did not pay for abortions their states would absorb the costs (ibid.). Mr. Tsongas brought out from Mr. Early that the Governor and the Secretary of Human Resources of Mr. Early's state, Massachusetts, had said that their state would not pay for abortions if the government did not fund them (ibid.). Mr. Early made clear that he was opposed to abortion on demand, but, he said, if the people in any given state chose to support abortion on demand through their own taxes the Flood amendment would not prevent them from doing so (ibid.).
Mr. Conte supported the Flood compromise language, noting that in his judgment it represented a partial incorporation of language from the joint statement in the previous year's conference report (supra p. 764), and he added that the Congress should commit itself to funding of programs and research to improve the treatment of rape and incest victims (H 10835-36). Mr. Obey said that the House should not think that by this legislation it was cutting off all federal support for abortions, because the defense bill had no rider attached to it, nor had the Federal Employees Health Insurance legislation been so amended; the amendment would mean only that poor women cannot obtain abortions; he said that the language of the Flood amendment was not a compromise but simply reflected the interpretation which the Attorney General had placed upon the Hyde amendment of the preceding year; saying that both sides had been totally uncompromising in the conference, he urged the House to vote against the Flood language (H 10836). Mr. Giaimo urged defeat of the Flood motion (H 10836). Mr. Giaimo argued that all of the abortions under discussion were legal abortions under the Supreme Court decision; he said that he realized the great importance of enacting the Labor-HEW Appropriations Bill but also recognized that "we cannot compromise a fundamental principle because of that"; he continued:
"The fundamental principle is that we are not treating people alike in this country."
Mr. Volkmer reluctantly supported the Flood language (H 10836), although he felt a difficulty with the permission to treat rape and incest before the fact of pregnancy is established even where treatment occurs several months after the rape or incest; he questioned the predictability of retardation and mongolism in prenatal testing (H 10836-37).
Mr. Glickman, although opposed to restrictions on abortion funding, said he would vote for the Flood compromise because (H 10837):
"By continuing to quibble over financing of abortions for the poor, we are in effect holding back funding for health care, education, job programs and so forth designed in large part to benefit that same segment of our population: the poor. Time has come for those other needs to take precedence."
Mr. Stokes said that he opposed the Flood language because it was no compromise and the Senate would reject it for that reason, and that it was more repressive than the language passed in the preceding year, when it was still thought by many in the House that what was passed by the Congress would not be important because it would be invalidated as a matter of equal protection (H 10837). He pointed out that delay in enactment of H.R. 7555 was actually preventing the payment of salaries and was causing curtailment of governmental services; as to the treatment for rape and incest language he argued that the primary rape treatments were "DES," the administration within 48 hours of the event of an estrogen drug which had been determined to be a carcinogen and had been taken off the market in many other countries, and D & C (dilation and curettage) procedures which remove the contents of the uterus, terminating any pregnancy whether diagnosed as such or not; a D & C is a surgical procedure and not a standard rape treatment procedure for any health facility, he argued; the result of the language would therefore be to require the woman in every case to undergo one or the other of the two procedures before the establishment of the fact of pregnancy, which is thought to occur in approximately 4% of rape cases; he objected also to the limitation to "forced" rape, and to the requirement of report, saying that at least 43.7% of all rapes were unreported, and that incest is generally unreported unless accompanied by violence, severe emotional disorder or a pregnancy; the result, he argued, would be that the preventive treatment provided in the Flood language would not be applicable to most incest victims; he argued that the preceding year's conference report allowed for the prompt treatment of rape and incest victims "and did not set up the impossible, unreasonable, and insensitive restrictions found in this supposed compromise language"; he asserted that the Senate would not accept the language of the Flood amendment and that the House had an obligation to submit a reasonable compromise (H 10837-38).
Mr. Flood's motion was then put to a vote and the vote was 263 in favor, 142 opposed, 28 not voting and 1 answering present (H 10838). Later in the legislative day Mr. Fowler detailed the extent of the interference with the operations of the government caused by the delay in enacting H.R. 7555, and he concluded (H 10861):
"I urge my colleagues on the conference committee and in the House to agree to language which would constitute a true compromise with the Senate or else to sever the abortion issue from the Labor-HEW bill and consider abortion separately. The Labor-HEW appropriations bill can no longer be held hostage by an issue extraneous to it."
The language in the Flood amendment was laid before the Senate on October 12, 1978, and Senator Magnuson moved that the Senate concur in the House amendment to Senate amendment No. 82 with an amendment which would have substituted for the Flood language the following (S 17048):
"Sec. 209. None of the funds 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, or in the case of rape or incest, or if the woman or fetus would suffer serious health damage. This section does not prohibit the use of drugs or devices to prevent implantation of the fertilized ovum."
Senator Helms then presented an amendment in the nature of a substitute for Senator Magnuson's language which would have restored the Flood language with immaterial if any changes (S 17048). Senator Magnuson emphasized the importance of moving forward on the appropriation bill itself and suggested that it would be better for the abortion issue to be handled by separate legislation; he said (S 17049):
"There should be a national policy on this matter."
Senator Scott expressed a concern for the national policy, saying (S 17049):
"It appears to me that the proper national policy would be to have the policy we had before the Supreme Court ruling, to say that the question of abortion is a question to be decided by the States, under the police power. There is no reason to have uniformity on matters protecting the health and the morals of the people of this country. Anyone who has studied our system of government knows that we are a nation of dual sovereignty, and rights that affect people as closely as this are decided at the State level."
Senator Scott urged the bringing to the floor of a constitutional amendment on the abortion issue (ibid.)
". . . in order to get the abortion question out of consideration as frequently as we have it, because we waste a lot of valuable time in attempting to make decisions at the federal level that should be made at the State level."
Senator Brooke said that he thought that it had been agreed in the appropriations committee that a continuing resolution would be called up that night to continue pay to the thousands of employees of HEW and Labor, and he said that he had proposed to call up an amendment which would have provided that the continuing resolution delete the Hyde amendment from the 1977 bill; he said that further discussion had brought out that any continuing resolution should originate in the House and should provide for the continuance in effect of the Hyde amendment; Senator Brooke indicated that his understanding of the agreement had been that the House amendment would be entertained and concurred in with an amendment, and that the Senate would move at once to consider the continuing resolution, which would carry with it continuation for the month of the continuing resolution of the Hyde amendment (S 17049-50). Senator Helms, however, said that the House of Representatives had made itself perfectly clear that if the Senate really wanted to resolve the issue it had only to approve Senator Helms's amendment and send it back to the House; he continued (S 17050):
"As far as compromising on this issue, my conscience will not let me do it because we are talking about the deliberate termination of innocent human life, period. And do not ask the Senator from North Carolina (Helms) to compromise on that because I cannot. I wish I could find some middle ground, but either you kill them or you do not. I am talking about the babies involved."
Senator Brooke insisted that he was not asking Senator Helms to compromise but to agree on an arrangement to allow time for concurrence in an amendment (ibid.). Senator Helms inquired how voting on his amendment could delay matters, and Senator Brooke answered that it was attempting to substitute a resolution of the differences for a return to conference deliberation (ibid.). After a delay for discussion, Senator Brooke explained that the purpose of what he was proposing was simply to have substituted for the Flood language the Magnuson language, which was somewhat more restrictive than the earlier Senate language, so as to furnish a basis for further conference discussion, and to continue the Hyde language in effect so long as the continuing resolution was in effect (S 17050); Senator Helms then withdrew his motion for the Yeas and Nays on his motion to amend (S 17051).
Senator Brooke then discussed the language of the Flood amendment (S 17051). He pointed out that the language made no provision for abortions in the case of serious health damage to the pregnant woman or the fetus; he said that the language most recently approved by the Senate ("medically necessary") could be compromised, that the Senate conferees were willing to modify that language to permit abortions if the woman or fetus would suffer "serious health damage"; he pointed out that the House language on rape and incest might be unworkable in permitting "medical procedures" to be performed only before the fact of pregnancy had been established; that meant that rape victims would be required to submit to DES, a known carcinogen, or to D & C, a surgical procedure that might be needless; he said that the report requirement did not take account of the fact that almost half of all rapes and rape attempts are unreported out of fear or ignorance, and that when a victim discovers that she is pregnant, she will resort to clinics or other health facilities rather than go to the police; finally, the "forced rape" formulation denied relief to victims of statutory rape recognized by virtually all states; he argued that the House language on rape and incest would very likely do little to prevent pregnancies resulting from such tragedies and that its language was more prohibitive than the joint statement in the conference report on the 1977 bill; he urged the House to concur in the language proposed by Senator Magnuson in the hope that the other House would try to meet the Senate at least half way (S 17051). The question of agreeing to the motion to concur with an amendment was then put and the motion was agreed to (S 17051). Senator Magnuson then put forward a joint resolution (S.J.Res. 91) making continuing appropriations for the Department of Labor and of HEW until October 31, 1977, or such earlier date as an appropriation was enacted into law; the joint resolution was passed on a voice vote (S 17052).
The Senate action on the Flood amendment, substituting for it the Magnuson amendment, and on S.J.Res. 91 were reported to the House on October 13, 1977 (H 10881). On the same day the House began consideration of H.J.Res. 626 making continuing appropriations for the fiscal year 1978 (H 10887). Mr. Bolling explained that the joint resolution would make it possible to meet federal payrolls but would not alter any policy matter (ibid.). Mr. Bauman obtained the assurance of Mr. Mahon that the joint resolution in fact continued in effect the language of the Hyde-Conte amendment of the preceding year; Mr. Bauman then characterized as an extraordinary act of arrogance the Senate's passage of S.J.Res. 91, a "derogation of the House's constitutional right to appropriate funds and initiate appropriations" (H 10887). Mr. Mahon stated that the House would assert its constitutional right to originate appropriation bills (H 10887). H.J.Res. 626 was then read to the House (H 10888), and, after brief discussion which brought out, among other things, that no significant additions to funding contained in H.R. 7555 would take effect under the joint resolution, the joint resolution was passed (H 10888-89). Later in the same day Mr. Flood moved (1) that the House take up the Senate amendment to the House amendment to Senate amendment No. 82, (2) that the House disagree to the Senate amendment, and (3) that the House request a conference on the disagreeing votes (H 10966). Mr. Steers then presented a preferential motion to concur in the Senate amendment. Mr. Flood then explained the sequence of events in House and Senate, and he emphasized that the Senate had not directly voted on the House language, which, he said, "was a retreat from the strong position taken by the House in adopting the original language of the Hyde amendment"; the language now proposed by the Senate, he said, did not represent a compromise but was very close to the language earlier presented by the Senate; he urged the House to disagree to the Senate amendment and send the Bill back to conference (H 10966-67). Mr. Stark urged approval of the Senate amendment apparently on the ground that disagreement with it would protract the stalemate and deny to the beneficiaries of Labor-HEW legislation the additional benefits voted in the pending bill (H 10967).
Mr. Michel suggested that the two motions be in effect consolidated for argument, and he yielded time to Mr. Steers to make the case for his motion (H 10967). Mr. Steers said that the House must choose whether or not it would perpetuate or end the legislative impasse; he said that the key words in the Senate language were "serious health damage," language that would be subject to some abuse, inevitable if language left any choice to a doctor, but which he thought it reasonable to do; he argued that the earlier Senate language "medically necessary" would have allowed the doctor to take account of such things as the economic position of the pregnant woman; he instanced six major items that would not be taken care of under the Flood language but would be taken care of by the language "serious health damage": cardiovascular disease, neurological disease, carcinomas, severe psychiatric diseases, metabolic disorders, and gastrointestinal disorders (H 10967-68). Mr. Seiberling inquired whether it was not the fact that under the medical benefit program for Members of Congress their wives could have abortions because of a serious medical problem at government expense (H 10968), and he asked whether the Senate had voted on the Flood language; Mr. Steers answered that the Senate had voted on the Flood language but not in a reported vote, and Mr. Michel said that at the time only 20% of the Senators were present and the Flood language was defeated by a vote of 11 to 9; Mr. Michel further pointed out that an earlier version of Senate language had required "permanent" health damage rather than "serious" health damage, a tightening rather than a relaxation of the Senate's original position (ibid.). Mrs. Fenwick said that to vote against the Steers amendment would be to deny public funds for a legal operation if you have the money and to deny it where the doctors say that severe health damage is in prospect; she characterized that as "almost unbelievable" (H 10968). Mr. Ketchum supported the Steers amendment as a humanitarian gesture (ibid.).
Mr. Conte advised the House that the Senate had already concurred in the House joint resolution continuing appropriations and that it had been sent to the President (H 10968); he argued that the Senate had not met the House compromise (including the life endangerment exception) with anything, since the new words were tantamount to the old "medically necessary" words; he said that there is in every birth some damage to the veins of a woman so that any woman would have serious health damage if her pregnancy were carried to term; repeating what he had earlier said about the infrequency of pregnancy following rape, Mr. Conte said that the inclusion of the language respecting rape and incest in the Flood amendment was for only one reason, to prevent abortion on demand, for without it any woman could assert that she had been raped and obtain an abortion (H 10968-69).
Mr. Oberstar stated (H 10969) that the Flood language "does not compromise the position of those of us who oppose abortion"; he said that "it does not in any way allow abortion"; the Flood language, he said, did allow medical treatment short of abortion for rape or incest victims before pregnancy had been established, but that treatment in the interval between fertilization and implantation is something that pro-life advocates can support. Mr. Hyde contended, however, (H 10969) that the Senate language provided doctors with a license to kill; he said (H 10969):
"I am weary unto death of hearing people say, "I am against abortion, but' and then refuse to lift a finger to stem the tide of 1 million abortions in this country every year."
Mr. Hyde argued that some favored public funding of abortion as a means of controlling welfare costs by reducing the numbers on welfare, but he said that to be an accessory to that solution was to him "outrageous and incredible"; he argued that the inclusive rape and incest language in the Magnuson amendment was "an invitation to gigantic wholesale fraud"; he saw a contrast between the Supreme Court's holding that capital punishment for a rapist was unconstitutional, and concluding that the product of such a rape is socially expendable; he cited organizations of chiefs of police and sheriffs as saying that 90% of reported rapes in such circumstances would be fraudulent; of the key language "if the woman or fetus would suffer serious health damage," he asked whether that did not mean that a human life was the tradeoff for some doctor's judgment call on what serious health damage is; he argued that "serious health damage" is a judgment call by a doctor with a financial interest in making the judgment; he repeated that in California 92% of abortions were for mental health reasons; he argued that not all people born with a disability are sub-human and should therefore be terminated; he said (H 10969):
"I submit to the Members that life is not just for the privileged or the planned or the perfect. Life is for everybody, and we ought not allocate to ourselves the role of Almighty God . . . ."
At the close of his argument he said (H 10969):
"We think of young girls who are pregnant, unwanted pregnancies, the tragedy of being brought up in the ghetto, the tragedy of renal disease. What about the tragedy of human life being thrown away because we have no alternatives? Have we exhausted our capacity for caring for human beings by telling poor women that the only answer is killing their unborn young?"
Mr. Michel asked the Members to vote down the Steers motion "because it is a complete abdication, absolutely, lock, stock, and barrel, of the earlier position which we took and conceded the Senate position"; He asked adoption of Mr. Flood's motion and a return to conference (H 10969).
Mr. Flood said that the House conferees had already rejected the Magnuson language in conference; he said that under the Senate language the House would be permitting payment for abortion for all sorts of reasons, including emotional problems, and in effect would be paying for abortion on demand. (H 10969-70).
Mr. Stokes opposed the motion of Mr. Flood, arguing that he had said earlier that the Senate would reject the new language of the House, and it had done so, and had brought forward the compromise Magnuson language (H 10970). He asserted that in the name of humanity and decency he could not see how the House could rationally reject the Senate language; it was not, he said, abortion on demand, and he said (ibid.):
"This language is not talking about social justice we evidently gave that issue up several months ago. This language is talking about very real concern for poor women and very real, serious medical problems.
"How do we have the audacity to suggest that these women who are at higher risk of illness, because they are poor and have less access to quality medical care, should not be allowed abortions when they are seriously ill or are carrying a diseased or severely deformed fetus?"
Mr. Stokes noted the expressed fear among House conferees that exceptions for women with medical problems would permit fraud on the system, and he asked (H 10970):
"What are we saying about those we represent when we allow that kind of thinking to dominate public policy? What is this saying about those who are patients suffering from illness, of those women who may be suffering from cancer, from diabetes, or any number of other equally serious conditions? What are we saying about their doctors?"
Mr. Stokes expressed amazement at the casual dismissal of medical judgments on these matters (ibid.); he asked whether the House was saying that it was so afraid that someone might take advantage that it should say "No" to everyone regardless of circumstances; he pointed out that the whole medicaid program was not stopped because a few took advantage of it; he said that the amendment dealt also with women who found as a result of prenatal testing that they were carrying a genetically diseased or seriously deformed fetus, and he inquired how an abortion can be refused when the fetus has sickle-cell anemia, Tay-Sachs or a deformity resulting from the mother's having ingested certain drugs; he argued that the fear of fraud by patients and doctors acknowledged the desperation felt by women faced with unwanted pregnancies; he asked the House to defeat the Flood language and approve the Steers language (ibid.).
Ms. Holtzman (H 10970) reluctantly supported the limited coverage of the Steers amendment rather than, by defeating it, to sanction serious health damage for poor women, and to force poor women, the victims of rape and incest, to choose between the trauma of such birth and the health risks of self-induced abortions; she said (ibid.):
"To condemn the living in this manner is to make a mockery of the term "right to life.' "
She said that the whole appropriation should not be held hostage to the most radical anti-abortion position; she urged that the pro-life advocates should have some small compassion for the living, and allow the expanded programs to take effect at once (ibid.).
The preferential motion of Mr. Steers (to concur in the Magnuson amendment) was first put to a vote, and it was defeated, 163 voting in favor of it, 234 voting against it and 37 not voting (H 10970-71). Mr. Flood's motion, to disagree with the Senate amendment to the House amendment to Senate amendment No. 82 was then agreed to (ibid.).
Earlier on the same day (S 17159-60) the Senate had concurred in the joint resolution of the House, H.J.Res. 626, for continuing the appropriations until October 31 or the date of earlier appropriations enactment. It was made clear that the Hyde-Conte anti-abortion language continued in effect under the joint resolution. Senator Eagleton took the occasion to note that he was opposed to the compromise language of Senator Magnuson, which had been adopted on the floor of the Senate on the preceding evening when, as Senator Eagleton asserted, most Members of the Senate were of the belief that no further substantive legislative activity would occur. He argued that the Magnuson language would leave the door as open to abortion on demand as would the "medically necessary" language (S 17159-60).
The Senate having received from the House a message announcing its disagreement to the Senate amendment to the House amendment to Senate amendment No. 82, Senator Magnuson moved the Senate to insist upon its amendment, agree to the request of the House for a conference on the disagreeing votes, and to appoint conferees; the motion was agreed to (S 17186).
On October 27, 1977, the Senate, in response to the request of the House that the Senate have a roll call vote on the Flood amendment, agreed to a procedure for doing so (S 17900), and Senator Schweiker then presented a resolution directing that the Senate conferees concur in the Flood amendment (supra p. 810), and he presented for the record a letter to Senator Magnuson from Mr. Flood stating that it was the impression of the House that if the Flood amendment were presented in the Senate for a roll call vote it might well be accepted (S 17901). Senator Magnuson indicated that the language of the Flood amendment did not substantially change the original House language (S 17902), and Senator Packwood then argued that the House language was getting worse instead of better: adoption of the House language, he said, meant (S 17902):
"No woman can have an abortion unless her life is endangered except, first, in the case of rape or incest if she reports it, if she reports it to the legal authorities; second, that she can have an abortion if she has ectopic pregnancy, which is where the fetus is growing in the Fallopian tube and must be aborted; and third, this is not even an abortion, payments are allowed for drugs or devices to prevent pregnancy."
He argued that the language was so limited and narrow as almost to insult the Senate (ibid.).
Senator Brooke asserted that the House language was totally unacceptable; it did not provide for the health of the mother nor for the health of the fetus; the language on rape and incest was more repressive than the policy then in effect; the rape and incest language was harsh and clearly unworkable, and the House language was not a compromise in any sense of the word; he noted that the Congress was perilously close to the October 31 deadline of the continuing resolution, and still an opportunity was needed to sit down with the House conferees to reach a reasonable and humane compromise (S 17902). Senator Schweiker's resolution was then put to a vote and it lost, 33 voting in favor of it, 59 voting against it and 8 not voting (S 17902-03).
On November 1, 1977, Mr. Mahon introduced in the House H.J.Res. 643, a joint resolution making further continuing appropriations for the fiscal year 1978 and for other purposes, and it was referred to the Committee on Appropriations (H 12012). On November 2, the House received a conference report in which continuing disagreement on amendment No. 82 was reported (H 12066-67). On November 2 the Senate determined, without objection, that the debate on the conference report on Senate amendment No. 82 and motions related to that issue should be limited to two hours (S 18566).
Senator Bayh opened the debate on November 3, 1977, with references to the difficult history of the legislation, and he said that in a spirit of compromise the Senate conferees were prepared to eliminate the option of abortion for the prenatally defective fetus, and to limit abortions to the case in which the threat to the mother's health was a threat of physical health damage; he indicated that there still was difficulty with the language over rape, and that the differences were still being worked out (S 18582-83). He explained (S 18583):
"How the wording can best be decided is a matter that we are presently trying to work out with the House conferees, but I think it is important for the Senate position to stand on that, and for us to get the message to the Secretary of HEW that when we are talking about treatment for the victims of rape or incest, if indeed we have to leave the word "treatment' in there, we are talking about the option being available for a woman who is assaulted in that manner to resort, if she feels in her conscience the necessity, to an abortion."
He said that the language presently under consideration in conference took the form (S 18583):
"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, or except for medical procedures necessary for the victims of rape or incest, or except in those instances where severe or long-lasting damage to the mother would result if the pregnancy were carried to term."
Senator Bayh observed that the language covered four points: first, the point covered in the Hyde amendment of the preceding year; second, the language would permit use of federal funds if abortions were necessary for treatment of rape or incest victims; third, abortions would be permitted if the woman's physical health would suffer severe or long-lasting damage if the pregnancy continued; and, fourth, language repeats the part of the preceding year's conference report permitting federal funds to be used for drugs or devices which prevent implantation of the fertilized ovum and for medical procedures for terminating ectopic pregnancy (ibid.). He noted that the entire field of diseased or defective fetuses had been abandoned, and that the limitation of health damage to the physical eliminated the possibility of coverage for mental disorders; of the health damage language he said (S 18583):
"We hope that the language presented to the Senate will cover abortions in situations where a woman will not necessarily die as a result of the pregnancy but will suffer some type of impairment as a result of her pregnancy being completed."
He repeated the arguments that such legislation had no place in an appropriations bill, and that the prohibition on the use of federal funds would not end abortions throughout the country but only make it more difficult if not impossible for poor women to choose a medical procedure that the Supreme Court has decided is their right; he suggested that the language under consideration represented the whole of the distance which the Senate was prepared to go (S 18583-84).
Senator Magnuson then presented the amendment (S 18584), which, in addition to the paragraph quoted above, contained two additional paragraphs reading as follows:
"Nor are payments prohibited for drugs or devices to prevent implantation of the fertilized ovum, or for medical procedures necessary for the termination of an ectopic pregnancy.
"The Secretary shall promptly issue regulations and establish procedures to ensure that the provisions of this section are rigorously enforced."
Senator Helms contended that if the Senate accepted the proposed language it should be very clear that the compromise would not end the debate in Congress over the use of taxpayers' money for the funding of abortions, that, as long as he had breath, the debate would continue regardless of the Senate action and that enactment of the compromise language would simply delay the debate until the next year's appropriation bill came up; he argued that the decision as to whether to use taxpayers' money for abortions should be left to the states and to the people through their local representatives; he insisted, as he had before, that the basic issue in the debate was "the deliberate termination of innocent human life" (S 18584). He argued in the light of the CBS-Times poll that the American people did not want their tax money spent on abortion, and he asked whether the proponents of federal funding were willing to say the same thing; he read from the letter of a medical practitioner that women with kidney disease and multiple sclerosis can successfully bear their children and they were not best served by abortion; the same doctor's letter also indicated that in one instance the legal abortion of a patient had not protected her from a septic abscess and peritonitis incurred in the course of the abortion; a second letter from the same physician asserted that thousands of women had not in fact died annually from back-alley abortions, that careful studies of illegal abortion deaths in such states as Minnesota and Illinois during the mid to late 1960s revealed no more than 2 to 5 deaths in any one year; and the letter asserted that those who had died did so for want of present day antibiotics, to a considerable extent (S 18585). Senator Brooke supported the proposed amendatory language as a reasonable and humane compromise in which the Senate had gone more than halfway in concession; he said that the Senate might be thought to have dropped reference to mental illness by agreeing to the word "physical" but that he could not himself agree that mental illness could be separated from physical condition; he continued (S 18586):
"The ambiguous word "physical' was part of the price for an agreement with the House, and the Senate, unfortunately paid that price."
Senator Brooke said that the Senate had similarly given up on its concern for the health of the fetus, knowing that there were several thousand genetic diseases which can afflict the new-born child; he said that the House conferees at one point made some concessions on rape and incest, but even then withdrew them and returned to their harsh earlier provisions; he repeated the arguments against requiring the reporting of rape and incest, and against the exclusion of all rape from coverage except "forced" rape; he said that the House conferees had announced their abandonment of the language providing for payment for medical procedures only if provided before the fact of pregnancy had been established, but, he said, it turned out that this concession meant nothing, since it implied returning to the language which the regulations of the Secretary had already interpreted as applying only for treatment before the fact of pregnancy had been established; he argued (S 18586):
"Nowhere, under any circumstances, must we accept a compromise that jeopardizes the life of a woman, any woman, even if it is one woman: and here we are talking about literally thousands of women who may be forced back to the old back-alley abortions."
He referred to a report of such a death in the case of a woman who had gone to Mexico for an abortion which she could not get in her own state (S 18586-87). Senator Case joined Senator Brooke in supporting the compromise amendment (ibid.). Senator Magnuson associated himself with the remarks of Senator Brooke and continued (S 18587):
"There is a lot of irony in this matter, Mr. President. There was a group of 10 to 12 men all men sitting in a room, deciding probably one of the most important matters in the life of a woman. The irony, also, is that neither the House nor the Senate heard even one witness. We did not have any testimony from anyone."
Senator Chiles pointed out that the language read "severe or long-lasting physical health damage," and he suggested that if the language was to meet the approval of the House it should read "severe and long-lasting"; he asked unanimous consent so to modify the amendatory language (ibid.). After the discussion Senator Brooke interposed an objection to the unanimous consent procedure (S 18588).
Senator Schweiker then opposed the amended language, although agreeing that it was a good faith and sincere effort to bridge differences. Senator Helms reiterated his argument that the contentions about rape were a red herring from a statistical viewpoint; he argued that granting the right to an abortion for unreported rapes rendered the exception clause unenforceable; he said that a just society would support the severest possible penalties for the rapist, more humane treatment for his victims, but would not allow an unsupported claim for rape to excuse abortion; even in the rare case of pregnancy from rape, he asked whether the Senate could encourage the killing of the innocent child just because he or she was conceived during the criminal act of another; to the comment that all the conferees were men and that women were not represented, he answered that the real question was "Where were the representatives of the innocent unborn children whose lives may be terminated at the expense of the taxpayers?" (ibid.). Senator Bayh said that the hearings on the constitutional amendment had adduced evidence that pregnancy did result from rape and incest and provided great pain to the families involved (S 18589). Senator Bartlett expressed approval of the House language respecting incest and rape and continued (S 18589):
"I think that the value of life in this issue must be overriding. For a Nation that wants to finance the taking of the lives of its own children on, I would say, a very promiscuous and promoted basis, as has been done, and in which the numbers are not kept, in which the figures are not made known to the general public, in which the authorization was never made by Congress, I think it is a sad commentary on this Nation to permit that to happen."
Senator Helms then said that Senator Bayh's figures were not statistics but estimates or projections from FBI statistics on the basis of the regular fertility figures for normal pregnancies; he insisted that not one actual case of pregnancy had been cited (S 18589). Senator Packwood said that he could not support his colleagues in their effort to find a provision acceptable to the House; he continued (S 18589):
"It has become clear over the past few months that the House is unwilling to pass language that shows any degree of fairness, humanity or compassion for poor women.
". . . To clarify, I do very firmly believe that abortion should be a strictly personal decision made between a woman and her doctor, and that all women, regardless of financial status, should have equal access to this medical service."
He characterized the limitations in the proposed language as harsh and ignoring the many in between cases of women who would be forced to carry their pregnancies to term and undergo needless suffering simply because it was neither severe nor prolonged enough according to someone else's standards; he objected to the exclusion of mental illness, and he reported that the National Women's Health Organization had prepared a number of case studies on medically necessary abortions for severely disturbed and disoriented women who should not be forced into motherhood, and he asked leave to have these reports printed in the record (S 18589-91). Senator Packwood objected additionally on the ground that there was no provision for women carrying deformed fetuses; Senator Packwood presented a letter from doctors at Stanford University Medical Center asking for restoration of federal funding for abortions in cases in which it had been prenatally determined that the fetus would be born with crippling conditions (S 18591).
The motion to concur in the House amendment to Senate amendment No. 82 with an amendment was then put to a vote, and the motion was carried 59 voting in favor, 29 voting against and 12 not voting (S 18591).
Later in the same day, on the motion of Senator Robert C. Byrd to reconsider the vote on the abortion amendment, Senator Brooke proposed to amend the language of the Senate amendment by substituting "and" for "or" so that the phrase would read "severe and long-lasting physical health damage to the mother"; the motion was put to a vote and was carried, 62 voting in favor, 27 voting against and 11 not voting (S 18621-22).
On the same day, November 3, 1977, the House adopted by an overwhelming vote a resolution for the prompt consideration of the conference report of disagreement on Senate amendment No. 82 (H 12167-68). The Senate amendment in its amended form ("severe and long-lasting physical health damage") was then reported to the House, and Mr. Mahon then offered a preferential motion that the House concur in the Senate amendment (H 12168). Mr. Mahon emphasized that House and Senate had for three months been trying to reach agreement on the issue of abortion and said (ibid.):
"Mr. Speaker, as chairman of the committee, I have the unpleasant duty of making this motion because we must establish the fact that our system of government can operate and that the Speaker and the leader and the committees and the Members of Congress can carry on the business of the session. Therefore, we have to make some concessions.
"My credentials are good with respect to the so-called Hyde amendment.
"There is no way for the Senate to completely have its way. If we are intelligent enough to be spokesmen for the people of the United States, we have got to deal in some degree of compromise in order to make our American system work."
Mr. Mahon then read the new language clause by clause, noting, after reading the life endangerment exception, that "of course, the doctor who was not too scrupulous could say in almost any case that the life of the mother would be in danger"; he then read the rape and incest clause and continued to the third clause ("severe and long-lasting physical health damage") and said of it that it was "just about the same as" the life endangerment clause; he continued (H 12168):
"In other words, that just about says what we are saying in paragraph 1, that the life of the mother must be in danger, seriously in danger, and of a long-lasting nature."
Mr. Mahon noted that the Senate had first voted language making "severe" and "long-lasting" alternatives and had reconsidered and gone over to the conjunctive language at the instance of the House (ibid.). He then explained the insistence of the House on the closing language of the amended section requiring the Secretary to ensure vigorous enforcement (H 12169). He said (ibid.):
"If the Secretary of HEW carries out the mandate of Congress and we adopt this language, then we will have a quite restrictive program of federally funded abortions. This was the best that could be worked out.
". . . We have done the best we could with a difficult situation and I think we just have to tell our folks at home what we have done. They will not all be happy, some will not be happy if we adopt this and some will not be happy if we do not. But something has to be done to make available the money we have provided in this Health, Education, and Welfare and Labor Department appropriation bill."
Mr. Seiberling inquired whether the term "physical health" included "mental health" (H 12169), and Mr. Mahon answered that the Senate had insisted for days that abortions be allowed if the mother would suffer mental health problems unless one were performed but that the House conferees had totally rejected that because it would open a loophole so big that it would make the legislation ridiculous; he said that the interpretation of "severe and long-lasting" had been left up to the administrators of the program and their regulations (ibid.). Mr. Seiberling then asked if schizophrenia were aggravated by having a child, whether that would constitute severe and long- lasting damage; Mr. Mahon said that he was unable to answer all the technical questions that might be asked; he insisted that "if we want to solve this problem, this is the best approach we have to solve it" (H 12169).
Mr. Bauman pointed out that it was possible to take further time to deliberate and again to pass a continuing resolution through the end of November (H 12169), and Mr. Mahon agreed that that could be done although the continuing resolution would have to deal with the abortion issue, and the Senate had warned that it might tie its language or other language to a continuing resolution and the controversy would continue (H 12169). Mr. Volkmer asked whether the "medical procedures necessary for the victims of rape or incest" would include abortions (ibid.), and Mr. Mahon answered that the language was an exclusion from the prohibition of abortion and seemed to him a little bit fuzzy but "at the same time not too bad"; to Mr. Volkmer's further question he answered that the language could possibly include abortions, but that regulations would have to be promulgated and rigorously enforced (H 12169). Mr. Obey said that no one there could honestly say what the clause meant but that (H 12169)
"The fact is what that language means, in the end specifically what it means will be determined by the regulations which are established by HEW, and they will determine whether or not there will or will not be abortions under that language. The gentlemen in the well cannot tell us definitely that."
Mr. Mahon noted that pregnancy of 11 to 15 year old children and statutory rape were issues involved in the question, but that no better language could be worked out; he urged adoption of the amended language on the House (ibid.).
Mr. Michel said that the issue was not one on which he could speak with assurance, that in the final analysis he would have to vote "No," but that he would not argue either side, because the matter was one of the individual conscience of the Member; he approved the life endangerment language, pointed out that the rape and incest language did not include the concept of "forced" rape and therefore permitted abortion on demand in the case of statutory rape, and said that the health language was insufficiently restricted to prevent physicians from using it as a framework for abortions on demand; he observed that the House compromise language had suggested "grave physical permanent health damage"; he approved the deletion of provisions respecting the health of the fetus and the exclusion of mental health damage from consideration (H 12169-70).
Mr. Hyde emphasized that the Senate was trying to change existing law; of Mr. Mahon's statement that he thought that the new language was language with which the House could live he said that he did not think that it was language that the unborn could live with, and that that was the real subject of discussion; he was disposed to accept the first clause (life endangerment) although it involved a judgment call by a doctor and was itself a compromise; the rape and incest clause he characterized as inviting "massive fraud" because it did not say "prompt" or set a time limit on when the medical procedures could be considered necessary for the rape victims, and evidently involved an abdication to HEW's administration of responsibility on a question of life and death; of the severe and long-lasting physical health damage clause he said that it "trades a human life for a judgment call about the health of the women"; he argued that there were many conditions unrelated to pregnancy that might arise during pregnancy or even because of it which the doctor could yet treat while saving the child; of the reported death of the woman who sought an abortion in Mexico he said (H 12170):
"The Members have read in the wire service, I am sure, over the weekend about a young woman who lost her life due to an illegal abortion in Mexico. Her death is tragic. We all agree with that. All abortion deaths are tragic whether it is the unborn or whether it is the pregnant woman. What about the 1 1/2 million unborn a year who die as a result of abortion?"
He said that CDC reports indicated 14 maternal deaths as a result of legal abortions during the preceding year, and said that deaths as a result of abortion have apparently risen because of legalized abortion; saying that he wished the issue was not before the House, he concluded (ibid.):
"But I will not sell out, for my own convenience or my political advantage or to be comfortable or to avoid being vilified further, simply because the Senate will not move. They are sorry they took the language last year, and they want new language this year. I cannot support funding for the homicide of innocent preborn life."
Mr. Mazzoli associated himself with Mr. Hyde's remarks (H 12170).
Mr. Conte opposed the amended language (H 12170-71); he asserted that the "severe and long-lasting" language invoked the same subjective determination as "medically necessary," and, because it was subjective and ambiguous, he had no doubt that it would "lend itself to the same kind of abuse"; the term long-lasting was of wholly uncertain sense. Mrs. Fenwick said of childbirth (H 12171):
"It should be a happy moment in the life of everybody. It should be a glorious moment in family life. But I can only tell the Members from wide experience in the world, that that is not the way it is."
She repeated her earlier description of her visit to the Chilean hospital where 35% of the beds were filled by women suffering from sequelae of self-induced abortions; she repeated the story of the mother and daughter who sought an illegal abortion for the daughter with the consequence that the daughter died and the mother was indicted as an accessory to her murder; she continued (ibid.):
"This is what we are talking about the despair of people. As for the Members in this room who keep voting this way, I am honestly sure they do not understand the desperate feeling that makes somebody do such things. Some of these people are mothers trying to protect their children. They are young married women with three or four children, the husband not making much money, or any money, and they are trying to work out some kind of solution to a difficult life.
"Then the doctor says:
"Look, you are going to have permanent kidney damage.'
"That is one of the great dangers of child-bearing; permanent, crippling kidney damage."
Emphasizing that the amendment required a danger of severe and long-lasting physical health damage, she asked whether the House could not understand that; she continued (ibid.):
"Suppose this is abused by one or two? Is that not better than having butchery in the back-alleys? Is that not better than having desperate, self-induced abortions? Is that not better than permanent health damage to a mother of children, severe, long-lasting, physical health damage?"
She concluded that the House was not God and could not really decide "so lightly issues that led to the agonies and suffering of other people" (H 12171).
Mr. Seiberling said that he would, but reluctantly, vote for the compromise, that he believed mental health was inseparable from physical health and intended his vote to mean that (H 12171). He said that he thought that if a majority of the House had been women the Hyde amendment would never have got off the ground, because the issue is not a simple right against wrong issue but of right against right, as are many basic issues in human affairs; he continued (H 12171):
"The right of people who do not believe that abortion is proper to prevent their tax money from being spent for abortions is being asserted here in such a way as to impinge on the liberty of other people to do as they wish with their own body."
He referred to the exhaustive hearings on the constitutional amendment and said (ibid.):
"One thing was clear from the testimony, and that is that any effort to restrict abortions by law has tremendous sociological, legal, and medical ramifications. Yet the Hyde amendment treats this complex issue as though it comes down to one simple question of whether people should be allowed to prevent tax money from going to somebody else to pay for an abortion. I can think of no better example of the inappropriateness of using the appropriations process to enact social policy."
Mr. Obey supported the amendment, saying (H 12171):
"I support it in spite of several differences, because I think it is an honest effort, it is a huge effort to attempt to balance rights, to attempt to balance the right of the fetus against the right of the mother. I do not know if that balance has been correctly achieved here, but I think we should understand some of the history of this language."
Then he recited the extraordinary action of the Senate in so promptly amending the "severe or long-lasting" phrase to "severe and long-lasting"; he reminded the Members that there was no way of converting minorities into majorities, and concluded that the time had come to compromise so that the House could finally pass the most important bill that it dealt with during every session (H 12172).
Mr. Bauman argued against permitting legislative weariness to result in an unacceptable compromise (H 12172); he contended that abortion was murder, and that the death of one unborn child was as important as the life of one mother who did not want the child; he referred to a speech of the late Senator Humphrey made in the House earlier that day concerning the role of the House as the representative of the people and as being closest to them in thinking, and he continued (H 12172):
"What is it that the people are thinking in your districts and in this Nation? And why is it that some of you who have no moral attachment to this issue have voted repeatedly for the right to life? Maybe you do not really believe abortion is murder, but you do have a sense of what your district wants. What is it the people are thinking all across this Nation, when the school textbooks their children use are taken out of their hands and control, so that they are taught things their parents do not believe in? What do parents feel when their children are taught it is all right to legalize drugs and use marihuana in small amounts; when they are told they cannot pray in school, when contraceptives are made readily available to children so they will eventually use them? When they are told to be permissive and if a problem occurs abortion is readily available? What do they believe when they are taught that lesbians should teach in schools and homosexuals should have the right to adopt children? What do your people think when this whole era of permissiveness comes crashing down on them, and finally they focus on one issue and this is the most horrible of all? What happens to the family when parents are told it is all right to murder your children? That is why people are upset Fundamentalists, Protestants, Jews, Catholics, people who do not believe in a God but who believe in a moral order, all are rightly upset. Because life is at stake."
He argued that the present language was no different from other language presented by the Senate, that if it became law it would "allow wholesale slaughter"; he appealed to the House, if it believed in the right to life, to stand firm on the issue and said (ibid.):
"If moral belief does not prompt you, think of the political consequences."
Mr. Dornan said that while he wanted to accord respect to the view that the quality of life is more important than just life itself, he thought the judgmental word "unwanted" was dangerous and wrong when applied to human life; he complimented Messrs. Hyde and Bauman on their steadfastness and their great political courage in continuing to take a stand against which media opinion in the nation was running ever more strongly; he continued (H 12173):
"However, I also concede political courage with the proabortion position taken by those of you in districts where there are very active prolife groups and where you know you are going to get passionate mail against you and where in town hall meetings you must face citizens, people who feel a deep commitment to life being preserved at any cost, and who associate you with killing."
He insisted that the issue was not the underlying abortion issue but "whether citizens who consider it killing must pay for it with their tax dollars"; he concluded by saying (H 12173):
"I address those of you in this House who are on the opposite side of this critical issue from me. I know you also believe in this motto up here above our Speaker: "In God We Trust.' But God will not be mocked. We cannot continue to kill millions of innocent preborn children each year. Human beings with an immortal soul and their entire genetic code in place.
"I beg you, my colleagues, to reject this vague compromise, this retreat from fairness, and stand tough against the other body's arrogance."
Mr. Steers said that he thought 90% of what had been said in the debate was irrelevant, and he continued (H 12173):
"We are not here to argue about what is legal. The Senate amendment does not permit one abortion that is not totally legal now. The only question is whether or not a rich woman shall have a privilege that a poor woman cannot have."
He urged adoption of the amendment rather than continued discrimination against poor women (ibid.).
Mr. Volkmer pointed out, and Mr. Steers agreed, that the Hyde amendment deprived no one of the right to an abortion, nor prevented any doctor or charity from providing poor women with abortion services without charge, and Mr. Steers answered (H 12173):
"As a practical matter, when we do not give a poor woman the money to have an abortion, she cannot have one. So I repeat that this amendment does not allow anything that is not perfectly allowable by law and I speak to the Members as one who many times has called abortion an evil in my campaign last year. I still feel it is an evil, but I do not believe that we should prevent poor women for lack of money from having an abortion."
Mr. Levitas interposed that, as in the case of the Vietnam war, the question was not whether or not tax money could properly go to support it, but that the question was rather a matter of national policy and a matter of law (ibid.).
Mr. Miller (California) commended one of the speakers for focusing on the issue, and he continued (H 12173):
"What is this rhetoric about taxpayers' dollars being used for poor women's abortion? Any of your wives can have an abortion. They can go into the best hospitals in the country and it is all deductible. What are you talking about?
"The Federal Government picks up half the premiums on your health insurance. The taxpayers do that, so I think we also ought to amend the IRS Code. We ought to amend who pays for our health premiums. Let us lay it out right there. That is what we are talking about. We all know abortions are legal. It is a question who has the privilege."
He argued that what the House really would be endorsing is discrimination and that it had to be stopped; he continued (ibid.):
"That is the issue, and to say that somehow this is equated with whether or not gays can speak in our schools or whether or not lesbians can teach or be in the legislature is so wrong. Is that what we are going to do, prohibit gays from having jobs, the right to earn an income, is that where we are going next, so that a minority or majority can visit that upon people who cannot defend themselves in this body, in this body of very wealthy people by the national standards?"
Mr. Flood opposed the amendment as not restrictive enough; he feared that, in spite of the legislative history, the Senate language might be interpreted by physicians, by the administration, and by the courts "in a way that would open the door to payments for many, many abortions"; he said that the Senate language was not a compromise (H 12173-74). Mr. Mahon referred to the Secretary's known opposition to abortion and to the last paragraph of the Section, and he said that under the circumstances he thought that the law would be administered "in a conservative and helpful spirit from the standpoint of the American populace" (H 12174).
Mr. Neal said that if he accepted the postulate that human life began at conception he too would feel compelled to work to end abortion whenever and however possible; he said that inquiry had indicated that churches in North Carolina's Fifth Congressional District for the most part had been unwilling to say to their Members that what had the potential for human life became human life at a particular point; saying that the answer to the beginning-of-life question was not agreed upon by the nation's spiritual leaders, he continued (H 12174):
"I certainly do not think the government should be in the business of making such moral decisions, but by denying medicaid funds for abortion, we are, in effect, making that very same judgment for many citizens of the United States. We are eliminating the choice, and by that, denying the women affected the right to choose an abortion which the Supreme Court has ruled is included in the right of privacy."
Mr. Neal then read to the House excerpts from statements made by Protestant church bodies qualifiedly recognizing the right to choose abortion in appropriate circumstances (H 12174).
Ms. Holtzman supported the motion to agree to the Senate language despite its restrictiveness; she referred to the risks of deaths from unsafe abortion, to the 55 women who, she said, had already been hospitalized as a result of back-alley or self-induced abortions to which they were forced as a result of the Hyde amendment (H 12174-75).
The Senate amendment was then put to a vote, and it failed of adoption, 172 voting in favor of the amendment, 193 voting against it and 68 not voting (H 12175).
Mr. Flood then moved the House to disagree with the Senate amendment to the House amendment to the Senate amendment No. 82. The motion was agreed to without a record vote (H 12175-76).
Then the House turned to consider a resolution continuing appropriations through the fiscal year 1978 for the District of Columbia and, in the course of that deliberation, to take account of the matter of continuing appropriations for the Departments of Labor and of HEW; the District of Columbia bill, amended to include the DHEW and Labor appropriations matters was thereupon read and passed (H 12177-80). On November 4, 1977, the Senate, after discussion, concurred in the joint resolution, but not before there had been an effort in committee to annex the Senate's proposed abortion amendment as a rider to the joint resolution continuing the departmental appropriations (S 18788-92).
On November 29, 1977, Senator Hollings moved that the Senate recede from its amendment No. 82, and, that motion having been agreed to, Senator Brooke then moved that the Senate concur in the House amendment with an amendment reading as follows (S 19236):
"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;
"Or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported to a law enforcement agency or public health service or its equivalent;
"Or except in those instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term."
Two additional paragraphs, not quoted, were identical with those in the previous Senate amendment (supra, p. 819). Senator Helms then proposed an amendment to Senator Brooke's amendment which would have substituted for it the language of the preceding year's Hyde-Conte amendment (S 19236).
Senator Hollings said that he had been asked by Senator Magnuson to make it clear to the Senate and to the administration (S 19237)
". . . that it is imperative that the Departments and agencies which are funded through this bill strictly follow the language contained in both the Senate report and the conference report."
Senator Brooke then explained that HEW had refused to give an interpretation in advance, and had advised that they would look to the Houses of Congress to tell them the intent of the language recommended; Senator Brooke continued (S 19237):
"We will be as precise as we can so that no doubt is left in Mr. Califano's mind as to what we intend. And we expect our intent to be carried out in the regulations the Secretary will issue."
Senator Brooke then secured the concurrence of Senator Hollings in the following explanation of the term "medical procedures" in the case of rape and incest (ibid.):
"It is our intention that "medical procedures necessary' not be viewed as a limitation on the length of time during which medical assistance will be available. We fully intend "medical procedures necessary' to include abortions. So long as the rape or incest has been reported to a law enforcement agency or to a public health service or its equivalent the woman is eligible for a publicly funded abortion."
Senator Brooke then explained that it was intended that the police and other affected agencies should arrange for such modes of report as would minimize the trauma of report by establishing specialized bureaus or personnel (ibid.). He explained further that the report did not have to be made by the victim, but could come through a physician, attorney, rape center counsellor, welfare agency or relatives; he said that report to a public health service or equivalent was intended to be broadly interpreted, so that, at minimum, there was a center available in each community within easy distance; Senator Hollings formally concurred in each of these interpretations (S 19237).
The Helms amendment to the Brooke amendment was then put to a vote and it failed to carry, 21 voting for it, 42 voting against it, and 36 not voting (S 19237-38).
Mr. Helms then proposed to amend Senator Brooke's amendment by adding the word "promptly" so that the medical procedures for rape or incest victims would be available when the rape or incest "has been promptly reported"; Senator Brooke opposed the amendment, arguing that the Senate had gone far enough by including a report requirement in its draft for the first time, and should not go the length of requiring that the report be prompt (S 19238). Senator Scott said he thought the requirement a reasonable one (ibid.). Senator Hansen opposed the amendment on the ground that it ignored the realities, that only when pregnancy becomes obvious will the facts be disclosed and the child victim of an incest seek assistance (S 19239). Senator Schweiker supported the Helms amendment, saying that without it the rape provision became a loophole, enabling a woman to fulfill the report requirement by simply stating to an abortion clinic that she had been raped (ibid.). The Helms amendment was then put to a vote and it failed to pass 23 voting in favor, 42 voting against, and 34 not voting (S 19239). Senator Brooke's amendment was then put to a vote and it carried, 44 voting in favor, 21 voting against, and 34 not voting.
The House took up the Senate amendment on November 29, 1977; Mr. Michel presented the Senate amendment and noted that the new language was that which related to reporting; he explained that the Senate had been requested to include a requirement of prompt reporting but had declined to do so; he expressed the hope that the members would vote for the language then before them (H 12487). Mr. Conte opposed the amendment because of the vagueness of the physical health damage language, and the ease with which the rape requirements could be circumvented and used as a means of fraud (H 12487-88). Mr. Wright said that the time had come for the House "to yield to common sense"; he said (H 12488):
"Since the very fundamental question of when life itself begins could not be agreed upon by St. Thomas Aquinas and St. Augustine, it is little wonder that Members of this body find difficulty in reconciling their disparate views with any set of words."
He stated that he did not believe in abortion and supposed that there were few, if any, in the House who favored government subsidization of abortion on demand; he continued (ibid.):
"By the same token, I just do not believe that there are very many, if any, Members of this House who would be so cruel and so crass and so unfeeling that they would condemn a poor woman to death or to lifelong physical disability for want of response on the part of the Federal Government when she is in genuine need of medical treatment."
He said that he believed the conferees had done as well as they could, and that the language before the House came as near as any language could to recognizing the convictions of both sides (ibid.). He argued that those who opposed the language did not oppose the principle the language sought to express to secure medical assistance to a woman if she was going to die or to suffer long-lasting physical disability, or to give aid to some young person victimized by rape or incest; he continued (H 12488):
"No, the opponents do not really oppose the principles which the language expresses. They fall back on the assumption that some physician is going to act in bad faith and to certify falsely. Well, my colleagues, if we were to assume that with respect to every law that is passed, we could not pass many laws."
Mr. Bauman stated that the issue was life itself and that the basic objective of the proponents of the Hyde amendment was to save the lives of 300,000 babies murdered each year with taxpayers' funds (H 12489); of the language of the Senate amendment he said (ibid.):
"It is very broad. It does allow for fraudulent representations to cause abortions. It allows liberal physicians who are in favor of abortion and profit from abortions, and make a career out of running abortion mills, to make these decisions and certify that they will allow these children to die. And it allows the Secretary to issue future regulations and procedures that we know nothing about. Perhaps they will or will not be strict, although it says, "rigorously enforce.' "
To the argument that unwanted children were especially liable to abuse, Mr. Bauman said that "the ultimate child abuse we all know is death" (H 12489). He asked the membership to mark his words (ibid.):
"I have said it before, and I am not preaching at all, I am just telling the Members a political fact; the issue will not leave us. This is not a threat; it is a fact. We are going to have to deal with the right-to-lifers who cut across all parties lines and all political divisions; Jewish, Christian, Protestant, Catholic, no particular formal religion, they are going to be at your congressional office door, and they are going to be out campaigning because this fundamental issue has stirred America and will remain with us."
He asked the House to defeat the amendment, and, should it pass, he said that he would ask the President to veto the bill (ibid.).
Mr. Bonker said that, although opposed to abortion, he felt that the legislative deadlock could be broken if the conferees could come to grips with a provision relating to rape (H 12489). He favored concurrence in the Senate language as containing a report requirement and appropriate allowance for those women in extreme circumstances whose life or physical health were jeopardized by their pregnancy; saying that the rape clause could not be both an open door to abortion on demand and a closed door to legitimate victims of rape, he argued that the report requirement sufficed, noting that it was a significant and difficult act for a woman to perform (ibid.).
Mr. Hyde, answering Mr. Wright, said that there had been some progress in medical science since Augustine in the 4th and Aquinas in the 12th (sic ) century; he denied that the question turned on a philosophical speculation, and said that the problem was one of discarding human life through abortion; he objected to the compromise language because it did not require that the rape or incest be "forced," arguing that anyone under the statutory age who became pregnant would be entitled to an abortion; he objected to the absence of a limitation of time on the report requirement as opening the door to questionable practices; he argued that existing law in effect provided for rape and incest victims at least during the first month following the occurrence; he objected to the "severe and long-lasting health damage" language as imposing a requirement impossible of verification and open to abuse with impunity; and he said that investigation of the Mexican abortion incident had apparently disclosed that the woman was not denied a Texas abortion but went to Mexico to conceal the pregnancy and abortion (H 12489-90). Urging the House to stay with the Hyde-Conte amendment of the preceding year, he concluded (H 12490):
"We are talking about innocent, inconvenient human lives. If this society cannot find ways to handle the human problems of unwanted pregnancies without resorting to abortion, then we are seriously deficient."
Mr. Michel supported the compromise amendment; he pointed out that the constant 2 to 1 ratio in Senate votes indicated that at some point someone had to yield ground; he continued (H 12490):
"Some of my colleagues on the subcommittee cannot give because of the tremendous pressures they have at home, and I realize that. But a few of us have got to give in order to compromise and reach an agreement. It is disturbing to me to have to say that, but we must give. The Senate has backed down from its original position."
He argued that the well known opposition to abortion of the President and of the Secretary would assure rigorous administration and regulation (ibid.).
Mrs. Fenwick said she had run twice against the same right-to-life opponent, and that he had received very few votes; she also said that she did not think anything would stop abortions; she referred again to the 35% of hospital beds in a Chilean woman's hospital occupied by self-induced abortion patients (H 12491). Mr. Volkmer argued that the issue was one of clear principle, one that, to some House members, could not be compromised; he said (ibid.):
". . . what bothers me here is to see those who waffle on the issue to find excuses to vote one way or another when there is no compromise. It is basically an issue of whether taxpayers pay for abortion or whether taxpayers do not pay for abortion. Let us vote on that issue and let us decide that issue."
He said that if the language under consideration was adopted and went to the President he would call on the President to veto the bill "because of his prior commitments to the policy that no taxpayers' money be used to pay for abortions" (H 12491).
Mrs. Spellman said that HEW employees and their health insurance carriers wanted to know whether Section 209 would affect them, through their health insurance payments, since the health insurance program was subsidized with federal funds (H 12491). Mr. Flood answered that the question was under consideration and the answer was complicated by the fact that the employees paid a part of their health insurance premium; he said that while he could not give a definite answer "we do not intend to tell the employees how to spend their money. I am sure about that" (ibid.).
Mr. Flood opposed the amended Senate language, arguing that it reflected the original Senate position; he said the report requirement was not clear, and that the "severe and long-lasting physical health damage" language was susceptible to abuse in interpretation which might result in using federal funds to pay for abortion on demand (H 12492).
Mr. Smith (Iowa) argued that the matter should really be passed on in a separate medicaid bill in which guidelines could be developed; under existing circumstances, he argued, the House should try to agree on language which has enough support so that the matter can be considered as settled and can readily be agreed to next year, instead of again holding up funding of important programs; he concluded that while the language provided in the amendment did not come as close to representing majority opinion as it could, it was close and therefore he planned to vote for it (H 12492). Mrs. Schroeder presented to the House 2 letters from or on behalf of rape victims indicating the difficulty of their plight and the importance to them of having access to medicaid abortion (H 12492-93).
Mr. Neal then substantially repeated the remarks and the excerpts from the church statements referred to above (supra p. 827) (H 12493-94).
Mr. Mahon's motion was then put to a vote and it failed, 183 voting in favor, 205 voting against, and 46 not voting (H 12494).
On December 5, 1977, Mr. Mahon advised the House that on the next day when the House considered the supplemental appropriation bill conference report and H.J.Res. 662, a continuing resolution for District of Columbia appropriations for the balance of the year, he would offer an amendment to include appropriations for the Departments of Labor and HEW at the rates of the conference agreement; he explained that Mr. Michel would then offer a further amendment on the abortion issue, the first paragraph to read in the following language (H 12615):
"Provided. That none of the funds provided for in this paragraph shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of forced rape or incest, when such rape or incest has been reported promptly to a law enforcement agency or public health service; or except in those instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term."
Two additional paragraphs were the same as in an earlier amendment (supra p. 819) (ibid.). Mr. Mahon pointed out that the difference in language was to add the word "forced" and the word "promptly" and to delete the expression "or its equivalent" in the rape and incest clause (ibid.).
On December 6, 1977, Mr. Mahon introduced an amendment to the District of Columbia bill the effect of which was to provide for continuing appropriations to the Departments of Labor and HEW at a rate, to the extent and in the manner provided for in H.R. 7555 as modified by the House on August 2, 1977; Mr. Michel then offered the amendment quoted just above (H 12651). Mr. Michel then explained the language of the amendment with some care (ibid.). Mr. Volkmer asked whether the "medical procedures" for rape and incest victims included abortion. Mr. Michel agreed that it did not (H 12652). Mr. Volkmer then asked whether the "medical procedures" language, excluding abortion, also governed the severe and long-lasting health damage clause and Mr. Michel seemed to answer in the affirmative (ibid.). Mr. Michel said that the language did provide for exceptions from the tightly drawn prohibition of funding, and, he added, the House expected that those who promulgated the rules and regulations would follow the legislative history closely in making sure that the flood gates were not opened (ibid.). In answer to further questions by Mr. Bauman, Mr. Michel said that he understood that "severe and long-lasting" as applied to a condition meant one that was pre-existing at the time of pregnancy, and that the medical judgment could not rest on the doctor's opinion that some condition might result because of the pregnancy's being allowed to continue (ibid.). In answer to another question Mr. Michel said that he thought the requirement of prompt reporting implied also a requirement of prompt treatment, and that prompt report embraced at least a 30-day period within which the rape victim could be expected to learn whether she had become pregnant; he indicated that the requirement of report would be satisfied whether or not the agency to whom the report was made credited the report (H 12652-53). Mr. Michel agreed that the language of the statute did not require that the victim of the rape or incest be the one who made the report; he said he expected that the regulations would draw guidelines covering details of the report; he said that he considered that "a public health service" included every health service funded to any degree by federal funds (H 12653). Mr. Smith (Iowa) interposed that all of these questions were just attempts to find an excuse to oppose the amendment and fog the issues (ibid.).
Mr. Hyde opposed the amendment as one that sought to trade a life for a health condition; he argued that the health endangerment language was inexact, and he continued (H 12653-54):
"Let me simply say also that this is not an effort to impose somebody's religious beliefs on other people, which is the thrust of the editorial from the Miami Herald that was recently put in the RECORD, any more than those clergy that marched at Selma were trying to impose their religious belief in fighting for civil rights or any more than Jefferson when he wrote, "All men are created equal and are endowed by their Creator with certain unalienable rights' was an effort by him to impose his religious beliefs on anyone."
Mr. Bauman opposed the Michel amendment and said that all of the right-to-life groups opposed the language (H 12654). Mr. Flood opposed the amendment, contending that the House should not agree to language which meant nine different things to nine different people and which could destroy the whole intention of the House; he was particularly critical of the "severe and long-lasting physical health damage" clause as being loosely constructed, wide open, and subject to any kind of interpretation anyone wanted to give to it (H 12654).
Mr. Obey asked the House to support the amendatory language; he said that, while the exemptions from the prohibition of the Hyde amendment were very narrow, they were real; he noted that his efforts to have included an exception for pregnancies of children younger than 13 had failed (H 12654-55). Mr. Bonker supported the amendment and explained the changes made in the rape and incest provision (ibid.). Mr. Miller (California) asked for a vote against the amendatory language because of the inclusion in it of the report requirement for rape and incest (H 12655). Mr. Fraser said that he had repeatedly voted for Senate positions "because they would hurt fewer people than the House versions"; he argued that the changes in the rape language were not minor, but were "punitive and harsh additions to an already harsh and discriminatory measure"; he contended that the amendment would reverse the progress being made in the humanization of public health provision for victims of rape and of incest; he emphasized the discrimination against poor women implicit in the bill; he continued (H 12655-56):
"Women, it seems, bear the responsibility for avoiding pregnancy. They must be punished if they do not. Yet avoiding pregnancy is not always possible; some contraceptives are ineffective and others entail risks, some minor, some major.
"Avoiding pregnancy is even more difficult for victims. A new Center for Disease Control study not yet released shows that about 2.5 percent of rape victims do become pregnant."
Mr. Mahon reviewed the Michel amendment, emphasizing its rigors and the narrowness of its exemptions, and urged the House to support it (H 12656). Mr. Michel urged those whose objection to the amendment was that it was too harsh not to vote against it on that ground because to do so would give up such progress as had been made (H 12656-57). He said (H 12657):
"Let us face it, there are so many Members hard in concrete that there can only be a handful on either side who can shift their position, but that is assuming that we could hold the ranks that previously had supported a bit more liberal position a week ago."
In answer to a question by Mr. Allen, Mr. Mahon said that he had some indications that the Michel language would be agreeable, and some that it would not be agreeable, to the Senate because the forced rape language was too strong, but that he hoped, in view of all of the pressures, that the Senate would accept what the House did (H 12657). The Majority Leader of the House, Mr. Wright, then outlined to the House the serious consequences of the continuing impasse on the conduct of the government, and he said (H 12657):
"If you want to sit intractably and inflexibly and insist that you have not yielded one inch from your convictions, if those in the Senate sit intractably and inflexibly and insist that they have not yielded one inch from their convictions, well, then, the legislative process will simply break down. The institution of the Congress will fail in its responsibility.
"Then the institution of Congress can be subject to public ridicule and if that happens if that happens, let me assure you that the public is not going to be impressed by our argument that it is the Senate's fault, nor will the public believe the Senate's argument that it was our fault. The blame will be upon us all."
Mr. Flood then suggested that the consequences envisaged by Mr. Wright would not follow if the Michel amendment was defeated and the Mahon amendment passed; Mr. Wright responded that the House had been doing that for five months, and he reiterated his argument that to prolong the impasse jeopardized important programs (H 12657-58). The Michel amendment was then put to a vote and it was defeated, 170 voting in favor of it, 200 voting against it, and 64 not voting (H 12658-59). The House then passed the Mahon amendment which simply added continuing appropriations language for the Departments of Labor and HEW to the District of Columbia Continuing Appropriations Act (H 12659).
When the Senate, on December 6, 1977, took up the joint resolution for continuing appropriations Senator Magnuson offered an amendment in the terms of the Michel amendment omitting the word "forced" before rape (S 19396-97). Senator Brooke joined Senator Magnuson in urging adoption of the amendment (S 19397). Senator Metzenbaum suggested that "promptly" was open to a wide range of interpretations, and Senator Brooke agreed, but said that "promptly" would mean a reasonable and humane period of time in which the rape or incest would be reported; the report might be by a parent on behalf of the victim, or by the victim (S 19397). Senator Magnuson said that he would not suggest waiting months, but indicated that 60 or 90 days, or within the first part of pregnancy, would be appropriate; he expected that the departmental regulations might be expected to define the word somewhere around 90 days as a middle figure (S 19397-98). After brief further discussion the joint resolution (H.J.Res. 662) was read and passed (S 19398).
The Senate amendment was presented to the House on December 7, 1977 (H 12770), and Mr. Mahon urged its adoption; he argued that having voted for abortion in the life endangerment situation, what remained were questions of degree; as to the deletion of the word "forced," he said that the term rape itself implied force as to women who were above age, and, as to children under age, courts could well hold that statutory rape was forced rape (H 12771). Mr. Bonker argued that the deletion of "forced" did not change existing law as interpreted in the regulations, and argued that the key word was "promptly" (ibid.). Mr. Bauman argued that the Senate debate showed that "promptly" was an elastic term that could extend to months (H 12771-72). Mr. Mahon answered that the word was too clear for such interpretation, and Mr. Bonker pointed out that the word "promptly" was first introduced by Senator Helms (H 12772).
Mr. Hyde opposed the amendment; he said that "the immoderate subject of killing prenatal young does not lend itself to moderate discourse"; he objected that the removal of the word "forced" opened medicaid abortions to any woman under age without reference to rape or consent; referring to the argument that respectable theologians differed about the moment when life becomes human, he answered (H 12772-73):
"But I say, "So what?' If you cannot tell when life begins, where do you allocate the benefit of the doubt? Do you shoot the gun through the door because you are not sure anyone is behind it?
"More importantly, the commencement of human life is determined by biology, not theology.
"Theology says, "Thou shalt not kill.'
"Biology says, "That fetus is human life.' "
Mr. Hyde cited a 1964 pamphlet of Planned Parenthood which evidently assumed that the life of the fetus was the human life of a baby (H 12773). Mr. Flood opposed the amendment, reminding the House that, if it had voted against the preceding amendment, it should even more strongly vote against the present one (ibid.). Mr. Bauman argued that there are more than one million abortions a year in the United States, about three hundred thousand of them federally financed; that ever since the Hyde amendment had been passed, the Senate had been fighting to increase the loopholes and their scope so as to permit more abortions; he said that an expert had advised him that if the word "forced" were deleted, that would mean that one-quarter to one-third of the three hundred thousand abortions would be permitted, and that the same expert had said that a loose interpretation of the "prompt" report requirement would mean almost unlimited abortion funding; he asked the members not to switch their votes (H 12773-74). Mr. Michel said that if the amendment were defeated it would be his intention to offer new language which would have added to the introductory life endangerment clause the additional language "or except where the pregnancy would substantially aggravate a pre-existing serious physical illness to the mother," to which would be added a paragraph saying that the section did not prohibit payment for medical procedures necessary for the prompt treatment of the victims of rape or incest (H 12774). Mr. Bonker pointed out that the Hyde amendment said nothing whatever about rape or incest, and that the regulations limited the "treatment" for rape or incest to prompt treatment before the fact of pregnancy had been established; he inquired whether the supporters of the Hyde amendment would object to use of the language of the existing regulation to cover the subject of rape and incest (ibid.). Mr. Hyde said that he had no quarrel with the regulations, but he objected to the Senate's "games" with the term "medical procedures" "because (the Senate) wanted to use that term to mean an abortion" (ibid.). Mr. Bonker asked whether the prompt report requirement did not do exactly that, but Mr. Hyde answered that it was prompt treatment that interested him, that the prompt report requirement was to avoid the fraud incident to someone's saying six months afterwards that she had been raped by an unknown assailant; in that case the "treatment" "would be an abortion" (H 12774). Mr. Bonker continued to indicate that he thought the matter could be handled through the Secretary's regulations, and Mr. Hyde made it clear that he believed that attempts to accommodate the Senate's views in the rape and incest cases had to stop short of abortion after the fact of pregnancy had been established (ibid.). Ms. Holtzman inquired whether the Secretary would have the power to protect legitimate privacy interests in drafting regulations respecting the report requirement, and Mr. Michel answered that he thought so (H 12775). Mr. Michel indicated also that he thought that, in the case of a ten year old incest victim, the report requirement would have to take special account of the victim's age and circumstances (ibid.).
The amendment was then put to a vote and it was defeated, 171 voting for it, 178 voting against it, one answering present, and 84 not voting (H 12775-76).
After discussions between representatives of the two bodies, and later on December 7, 1977, the House agreed to return to consideration of the joint resolution and the amendment to it (H 12827-28), and Mr. Michel, after the Senate amendment had been presented to the House again, then moved to concur in the Senate amendment with an amendment that would have changed the text so that the first paragraph read as follows (H 12829):
"Provided, That none of the funds provided for in this paragraph shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service; or except in those instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians."
Mr. Michel pointed out that the only change was to include the two physicians requirement; the Senate's deletion of the word "forced" was continued (H 12829). Mr. Bauman insisted that there was no difference except to increase the cost to the government (H 12829-30). Mr. Hyde said that a three physician requirement in even stronger language in the California law had not prevented the performance of 100,000 abortions (H 12830). Mr. Mahon argued that the additional requirement was appropriate and asked the House to vote in favor of it (ibid.). Mr. Carter said that the amendatory language about two physicians had come from him and Mr. Skubitz, and that he thought the language was both good and necessary, and accordingly he favored the present amendment as humanitarian (H 12830).
The amendment was then put to a vote and it carried, 181 voting in favor, 176 voting against, one answering present, and 85 not voting; among those voting against the amendment were Messrs. Conte, Flood and Hyde (H 12830-31).
Later on the same day Senator Dole stated to the Senate that compromise language had been forged after six months of debate; he said (S 19438):
"Although many have complained that this day had been too long in coming, I feel that the realization of a House-Senate consensus on the proper Federal role in preserving the sacred right to life of the unborn has been worth every minute, day, week, and month it took."
He said that without compromise "a democracy would wither in its own indecision"; he emphasized that his position on the amended language in no way indicated a lessened sense of the sanctity of life; he put into the record a letter to him from the executive director of the Kansas Catholic Conference questioning Senator Dole's vote in favor of the Brooke amendment after Senator Dole had so long supported the pro-life position (S 19438-39).
Senator Magnuson brought before the Senate the House resolution agreeing to the Senate amendment to the joint resolution with an amendment, and he said that the question before the Senate in the very emotional matter was what was the most humane thing to do; he reviewed in outline the legislative course of amendment, expressed his dissatisfaction with treating the subject as a rider on an appropriations bill, but reluctantly recommended that the Senate concur in the amendment; he said that he did not like it but did not know at the late hour what the Senate could do except concur (S 19439-40).
Senator Brooke reminded the Senate that what it was now voting on was not a continuing resolution but all the bill that there would be; he explained the circumstances in which the House had included the phrase "when so determined by two physicians," and had then voted on the amendment (so modified) a second time and had passed it (S 19440-41). Turning then particularly to the language about medical procedures in connection with rape and incest he said (S 19441):
"However, I want the record to show clearly that we are talking about abortions when we talk about medical procedures, where we are concerned with the victim of rape or incest."
Senator Brooke said that the abortion issue was not only an emotional one but to some was a religious issue, to others a moral issue, to still others a political issue, and to some it was all of these; of the two physicians language he said that "this language has no rational connection at all with the patients' needs," and that it unduly infringed upon the physicians' right to practice medicine, and violated the equal protection clause; he suggested that the woman might be free to consult more than two physicians, and that the physicians should be physicians of her own choosing (S 19441).
Then with considerable formality, turning to Senator Magnuson, he asked whether he was not correct that "medical procedures" included abortion, and Senator Magnuson said that he was correct (S 19441-42). In very explicit continuance of the same dialogue, the two Senators made clear that they did not mean the word medical treatment to be confined to such quasi-abortive procedures as the D & C, but to cover abortion itself; referring to the two physicians test, it was indicated that the determination of the physicians would have to be a reasonable determination (S 19442).
Senator Javits favored the amendment, saying that "Abortion is a matter of individual conscience," and he continued (S 19443):
"Denial of Federal funds otherwise available for medical care, for "medically necessary' abortions is discrimination against the rights of millions of American women who can least afford it. Such action deprives women too poor to pay of the rights which under the Constitution and the Supreme Court decisions are accorded to women with means."
Senator Eagleton opposed the amendment as broadening the life endangerment exception to an unacceptable level (S 19443-44). After discussion of other issues, Senator Magnuson moved that the Senate concur in the House amendment to the Senate amendment, and the motion was agreed to (S 19445).
Senator Stennis said that abortion at choice was an attack on the human family and therefore on the very form of government; he said that he did not see how the Senate could go on with the practice of trying to read into its own language certain interpretations that the Senate expected the courts and the Secretary to follow (S 19445). Senator Schweiker agreed with Senator Stennis that abortion was an attack on the human family, an attack on human life (ibid.). Senator Brooke moved to reconsider the vote that had been taken by the Senate on the language, Senator Javits moved to lay that motion on the table, and that motion was agreed to (S 19445).
The bill became law on December 9, 1977.
The Secretary, supported by an opinion of the Attorney General (January 26, 1978), concluded, in proposing regulations (released on January 26, 1978), that "medical procedures" included abortion, that reports of rape or incest must include the name, address and signature of the person reporting, that such reports must be made within sixty days of the incident, and that states would not be reimbursed if they paid for abortions (or other medical procedures) in any case before receiving the documentation required in the life endangerment, severe and long-lasting physical health damage and rape and incest cases. The proposed regulations did not attempt to define life endangerment or severe and long-lasting physical health damage but required that the physicians certify the existence of the statutory conditions (Proposed Regulations, 42 C.F.R. §§ 449.103, 449.104). Mr. Hyde, in a statement printed in the Extension of Remarks section of the Congressional Record of January 30, 1978, attacked the proposed regulations as "the weakest regulations possible, inviting massive fraud and providing no protection whatever to prenatal life." He criticized particularly the allowance of 60 days to report rape and incest, the definition of "medical procedures" as including abortion, the failure to require documentation of the existence of the health condition occasioning the abortion, and the looseness of the report requirement.
After receiving comments on the proposed regulations the Secretary modified them (1) to require additional details in the reports of rape and incest, (2) to require the physicians' certifications in the life-endangerment and severe and long-lasting physical health damage cases to contain the name and address of the patient, and (3) to require, in the severe and long-lasting physical health damage cases, that at least one of the certifying physicians be not either a physician whose income would be directly or indirectly affected in any manner by the fee paid for the performance of the abortion, or the spouse of, or another relative who lived with, such a physician. The Secretary's responses to comments made clear his conclusions that (a) the abortion exceptions did not include fetal malformations and abnormalities, 43 Fed. Reg. 31876, (b) the statute forecloses funding where only the mother's mental health would be severely and lastingly damaged (ibid.), (c) a woman's belief that her pregnancy would, if carried to term, endanger her life did not satisfy the life-endangerment requirement (ibid.), (d) the legislative history dictated that the decisions (on life endangerment and severe and long-lasting physical health damage) must be left to physicians on an individual case basis, without regulations specifying risk categories or medical criteria (ibid.), (e) whether or not psychologists and psychiatric social workers could competently decide that a woman would be likely to commit suicide as a result of her pregnancy, the regulations would continue to require a physician's certification of life-endangerment (ibid.), (f) the statute does not require that the life endangering or health impairing condition pre-exist the pregnancy or be present at the time of abortion (ibid.), (g) the statutory condition is met if severe and long-lasting physical health damage would result even though the result is from an emotional cause (43 Fed. Reg. 31876-77), (h) the regulations would not specify the circumstances that could result in life endangerment; that decision is left to the physician (implying that "mental health circumstances which would endanger the life of the mother if the fetus were carried to term" are not excluded from the range of circumstances the physician may take into account) (43 Fed. Reg. 31877), and (i) the severe and long-lasting physical health damage must be related to the fact of pregnancy's being carried to term to come within the statutory exception (e.g., where a pregnant woman has a brain tumor that can be removed surgically, an abortion would not be funded if the abortion would have no effect on the health damage that would occur) (ibid.).
The regulations are presently in 42 C.F.R. §§ 441.200-441.208.
The Department of Health, Education and Welfare Appropriation Act, 1979, Public Law 95-480, 95 Stat. 1567, 1576, 1586, Section 210, reenacted the proviso of Section 101 of the 1977 enactment with only a formal change and the omission of the paragraph directing the Secretary promptly to issue regulations.
At the First Session of the Ninety-Sixth Congress several appropriations bills had not been passed, and the wide ranging controversies included not only the abortion issue but also federal salary questions. H.J.Res. 404 had been introduced in the House for the purpose of continuing certain departmental appropriations for the fiscal year 1980 at the levels of the previous year pending the final adoption of departmental appropriation bills or other effective legislation. The Senate Committee on Appropriations included in the resolution as its Amendment No. 17 a Section 117 which would have reenacted the abortion language enacted in 1977 and in 1978. On September 27, 1979, a motion was made in the Senate to strike all of the language following the words " . . . to perform abortions except where the life of the mother would be endangered if the fetus were carried to term" (125 Cong.Rec., 96th Cong., 1st Sess. S 13573) but a motion of Senator Magnuson to lay the amendment on the table was carried by a vote of 55 in favor, 36 opposed, and 9 not voting. On the next day, September 28, 1979, the House, on motion of Mr. Whitten, agreed to insist upon its disagreement to Senate Amendment No. 17 (H 8762). On October 9, 1979, two joint resolutions continuing appropriations for fiscal 1980 were introduced in the House in place of H.J.Res. 404 (H 8850, H 8854-55). The first, H.J.Res. 412, dealt with all the departmental appropriations except Labor and HEW, which were dealt with in H.J.Res. 413. On the same day the House debated and defeated by a vote of 162 in favor, 234 opposed, and 37 not voting, an amendment, offered by Mr. Dicks, that would have included in the continuing resolution for DHEW appropriations for the fiscal year 1980, H.J.Res. 413, the language enacted in 1977 and in 1978 (H 8854-59). It was said during the debate that the language of the current law had eliminated 99% of federal funding of abortion (H 8856) and Mr. Volkmer said of the language of Senate Amendment No. 17 (ibid.):
" . . . the language contained in the amendment would basically open the floodgates.
"What concerns me is that we would have several hundred thousand children who will no longer be alive; they just would not be alive if the language in the amendment passes, while if we adopt the House language and continue with the House language, then we would have those children and they would be living. It is just a question of respect for human rights and whether children should live or not live."
Mr. Hyde observed that it was impossible to get abortion legislation out of subcommittee, "so the only vehicle to stop the killing is an appropriation bill" (H 8857).
On the following day the Senate passed its version of H.J.Res. 412, including, as Section 118, by Senate Amendment No. 5, the abortion language used in the two preceding years (S 14319-20, S 14325). The vote in the Senate was 81 in favor, 15 opposed, and 4 not voting. The Senate then voted to insist upon its amendments to H.J.Res. 412, to request a conference with the House, and to appoint conferees (S 14325). On the same day the House agreed to a further conference on H.J.Res. 412 (H 8942-43).
On October 12th the conference committee for H.J.Res. 412 reported disagreement on Senate Amendment No. 5 (H 9075-76, H 9080, H 9081). The majority leader, Mr. Wright, then offered a preferential motion (H 9081) that the House recede from its disagreement to Senate Amendment No. 5 and concur in it with an amendment inserting the following language which ultimately became Section 118 of Public Law 96-86 of October 12, 1979:
"Sec. 118 Notwithstanding any other provision of this joint resolution except section 102, none of the Federal funds provided by this joint resolution for the District of Columbia, Foreign Assistance and Related Programs, the Departments of Labor and Health, Education, and Welfare, or the Department of Defense shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest has been reported promptly to a law enforcement agency or public health service.
"Nor are payments prohibited for drugs or devices to prevent implantation of the fertilized ovum, or for medical procedures necessary for the termination of an ectopic pregnancy."
Mr. Wright urged adoption of the amendment, pointing out that it would be effective only until November 20, 1979, and that the language, eliminating the reference to severe and long-lasting physical health damage to the mother, represented a measure of victory for the House and of retreat for the Senate from the positions taken in the preceding year; he emphasized the damage to legislative programs that would follow from further delay (H 9081-82). Mr. Hyde (H 9082) commended the majority leader, Mr. Wright, for a "good faith effort to compromise what is essentially uncompromisable"; he said (ibid.):
"The word "abortion' has a clinical sound to it but it always happens over someone's dead body, a defenseless totally vulnerable unborn child.
"I cannot endorse this new language, even though it is a substantial improvement over the current language even though it will mean fewer and fewer tax paid abortions. I cannot endorse it because some abortions will still occur under this language. I know I speak for all the Pro-Life legislators who have voted with us so far."
Mr. Hyde concluded by saying that "this fight has only begun" (H 9082). Mr. Dornan then said (H 9082):
"Mr. Speaker, I also congratulate the majority leader for trying to work out something, but I would point out to this House that one of the world's great religious leaders said on the Mall Sunday "Stand up for life.'
"These weird snakes across the aisle from me can hiss all they want. I do not care about 2 million damned paychecks being held up. We killed 2 million human beings in their mothers' wombs in the last 2 years. These Federal employees will get their paychecks next week, but all those babies will never get their lives back.
"I am now going to put a Dornan amendment on the Treasury bill and on every other bill in this House that kills innocent human life, so be prepared for it.
"I ask you, Mr. Speaker, to speak in the well as eloquently for human life as you have in killing the B-1 bomber and as eloquently for human life as you have for giving the Panama Canal to a dictator."
Mr. Wright's preferential motion was then agreed to (H 9082).
H.J.Res. 412, as passed by the House on October 12th, was presented in the Senate on the same day as involving a two element compromise, first, limiting the cost-of-living increase of federal pay to 5.5 percent rather than the 12.9 percent automatic increase that would otherwise have taken effect, and, second, dropping from the abortion language the clause relating to the physical condition of the mother (S 14482-83). Senators Robert C. Byrd and Baker urged adoption of the resolution, but Senator Weicker opposed it strenuously, concentrating his attention on the cost-of-living increase provisions (S 14483-84). Senator Weicker said (S 14484):
"Do you realize how preposterous, outside of this Chamber, it is to be talking about tradeoffs between pay raises and abortion? That might sound normal here, but it just sounds plain nuts on the street. That is what has been going on tradeoffs."
The presiding officer then put the question on agreeing to the conference report and it failed to carry; the vote was 26 in favor, 62 opposed, 1 answering "present," and 11 not voting (S 14485-86). Upon the motion of Senator Stevens to reconsider the vote, and after considerable debate, the motion to reconsider was agreed to (S 14486-90). The presiding officer then for the second time put the question on agreeing to the conference report and it was agreed to 44 voting in favor, 42 opposed and 14 not voting. The Senate then turned to consider the House amendment to Senate Amendment No. 5 (S 14491). Referring to the limitation on abortion funding, Senator Magnuson said (S 14492):
"I have been working on it for over 6 years now and I hope it will be settled tonight. It has been 6 years. It does not belong on an appropriation bill. I keep reiterating, Mr. President, I am going to think of some way I do not know what it is to get a Senate resolution that the legislative committees of the Senate take up the abortion issue where it more appropriately belongs.
"I introduced five bills the Senator from New Mexico mentioned it the other night five bills on abortion. I took the Hyde amendment. I took every one. And they were referred in the last Congress to five different committees and the committees have not even had the courtesy to set a hearing date. It all comes back to appropriations. On every piece of legislation if it is a hot potato the legislative committees do not want to tackle, or someone gets frustrated because the legislative committee will not pass a piece of legislation that they are for, they come down to the Appropriations Committee and try and attach it there. Frankly I am getting a little bit fed up. The abortion issue has been holding up the whole Government. It does not belong on an appropriations bill and particularly a continuing resolution bill.
"Now, they have abortion language in four other bills. HEW has it. The Defense Department has it. The Peace Corps has it. Foreign Relations has it. And the District of Columbia has it. All have abortion language on them, and that has all to be decided by the Appropriations Committee."
A parliamentary difficulty arose in connection with an amendment to the amendment proposed by Senator Weicker (S 14492-93), and, in that context, Senator Stevens indicated that if the matter had to be referred back to committee he would not favor adherence to the language then before the Senate; of the changes effected through deletion of the severe and long-lasting physical health damage language he said (S 14493):
"This change includes the case of a woman who has cancer and has to decide whether to take chemotherapy treatment and risk damage to the fetus or whether she should have an abortion, try to cure the cancer and then attempt to have another pregnancy later. It is a very limited matter, perhaps, to some people.
"It also covers a situation of a woman who has diabetes and the treatment for diabetes could harm the fetus, and they decide to treat the diabetes, remove the fetus, and give her a chance to have a normal child after the diabetes has been treated."
After further discussion a motion to table the amendment proposed by Senator Weicker, dealing with the salary matter, was carried, 43 in favor, 42 opposed, and 15 not voting (S 14495-96). Following further brief discussion, the presiding officer put the question on agreeing to the motion of Senator Magnuson to concur in the House amendment to Senate Amendment No. 5, and the motion was agreed to, 43 voting in favor, 41 opposed and 16 not voting (S 14496-97). The President signed the joint resolution on the same day, October 12, 1979.
On November 13, 1979, the House considered H.J.Res. 440 which proposed to appropriate such amounts as might be necessary to continue projects or activities of various departments of the government for the fiscal year ending September 30, 1980, until that date or the earlier enactment into law of an appropriation for any project or activity provided for in the joint resolution, or the enactment of the applicable appropriation act by both Houses without any provision for the project or activity; Section 109 provided that, "None of the funds provided by this joint resolution shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term" (H 10605-06). Mr. Conte explained that the joint resolution as reported contained the abortion language which had passed the House earlier as part of the Labor-HEW bill, and that each member would vote his conscience on this difficult issue, and, he added, "I am sure that we will be considering different abortion language within the next few days" (H 10608). The joint resolution was then passed by the House (H 10611).
H.J.Res. 440 came before the Senate on November 15, 1979 (S 16694); Senator Magnuson noted that the HEW appropriation was being held up on the abortion amendment, and expressed his disapproval of such legislation on an appropriation bill (S 16695-96). The Senate Appropriations Committee reported the joint resolution to the floor with Section 109, the abortion amendment in the House version of the joint resolution, deleted in its entirety (S 16696). Senators Helms and Hatfield argued that the Senate Appropriations Committee's action in striking out all of the Section 109 language was promoting abortion on demand (S 16705), and, to Senator Magnuson's argument that his proposal would simply take the abortion question out of the appropriations bill altogether, Senator Hatfield answered that rather the amendment would remove the restrictions on abortion and make it an open-ended affair (S 16705-06).
After an interruption for a discussion of another matter Senator Magnuson presented an amendment which would have substituted for the House version of Section 109, the same language that had been enacted in 1977 and 1978; Senator Exon thereupon presented as a perfecting amendment to Senator Magnuson's amendment a version of Section 109 which, by deleting the severe and long-lasting physical health damage clause, was identical in terms with language enacted on October 12, 1979, supra, page 838 (S 16710). Senator Helms supported the Exon amendment; he said that he was "going to use every opportunity he can to stop the practice of using taxpayers' money to encourage or promote the deliberate termination of innocent human life" (S 16711). Senator Exon argued that it would be useless to adopt Senator Magnuson's amendment because that would require further conference with the House which was adamant (ibid.).
Senator Stevens, objecting to legislation on an appropriation bill, said (S 16712):
"For myself, I believe it is a matter that should be determined by a woman and her doctor, in consultation with her husband, and it should not be something that 99 men fight with 30 times a year. We just do not have the competence to deal with this as a legislative matter.
"I might say to the Senator there is no issue here that pertains to an unborn child. The question is, what dollars pay for abortions? These abortions are going to take place anyway. They are going to be paid for by Federal funds, State funds, or foundation funds. And the question here is, to what extent does the Federal Government maintain its commitment to those people to whom we have made a commitment that they are entitled to Federal medical services or payment for medical services from the Federal Government?"
Senator Stevens argued particularly that abortion funding should not be excluded from the defense appropriation (S 16712-13). He argued finally that the Senate should reject the language of the House bill and insist on the language of the preceding year (S 16713).
Senator Exon's amendment of Senator Magnuson's amendment was then put to a vote and the amendment was rejected, 44 voting in favor, 49 voting against and 7 not voting (S 16713-14). Senator Magnuson's amendment was then put to a vote and it carried 57 voting in favor, 36 voting against and 7 not voting; the committee amendment as thus amended was then agreed to (S 16714). The joint resolution was then put to a vote and it carried, and, on motion of Senator Magnuson, the presiding officer appointed conferees on the part of the Senate (ibid.).
The committee of conference on the disagreeing votes of the two Houses on the Senate amendments to H.J.Res. 440 reported agreement on an amendment which would continue the language of the October 12, 1979, continuing resolution without change (H 10953-54). Mr. Whitten, reporting the abortion amendment to the House on November 16, 1979, said that it did not involve the moral issue or the legality of abortion but whether any federal funds could be used to pay for abortions (H 10955). Mr. Dornan, in the course of discussing a book by a former abortion advocate who had reversed his position on abortion, said (H 10955):
"What I would like to do today, since my opponent whom I saw in these Hallowed Halls today took more money from NARAL, a pro-abortion political action committee group, than I did from any pro-life group, is to point out the existence of a deliberate, premeditated plan to foment a vicious and cowardly program of bigotry raw prejudice against the Catholic hierarchy in this Nation and make this respected clergy the villain in this abortion struggle.
"I take offense to this not only because I am a Catholic, but because I find lately that most of my support to "hang tough' in this battle comes from Baptists and evangelical ministers from every corner of this country."
He then read a passage from the book describing a dinner conversation with a NARAL representative who allegedly recommended casting the Catholic hierarchy as a group as the villain responsible for the unjust laws against which NARAL was at that time campaigning; Mr. Dornan argued that this "low road to bigotry has its adherents," implying that among them were those members who had allegedly hissed Mr. Dornan during the October session (H 10955-56); continuing, Mr. Dornan said (H 10956):
"I would ask the Members of this body who are for abortion to concede please that those of us on the other side do sincerely draw a perfect analogy between the 1973 abortion decision and the Dred Scott Supreme Court decision on slavery. We are not going to give up on pro-life amendments even if it costs some of us our seats. Even if we are opposed by a Georgetown graduate, as I was, who accepted tainted blood money from abortionists at NARAL and yet still claimed to be loyal to his faith."
Mr. Dougherty argued for adhering to the strict Hyde language on the ground that its standards would set the outer limit of what the states could be required to do under their local funding laws (H 10956). Mr. Whitten pointed out that the Senate had yielded on deleting the severe and long-lasting health damage language and that the rape and incest language had resulted in only 56 abortion fundings over a nine month period while there had been 2,214 abortions under the Hyde language; Mr. Dougherty argued that his group would have violently opposed the rape and incest amendment had the group not had at least an understanding that "some effort would be made to adopt a States rights amendment in the final conference committee report" (H 10956). Mr. Dicks said that there were supposed to have been 350 abortions committed in fiscal 1979 under the lasting health damage language, and that it was estimated that through the balance of the year there would be a further 56 to 72 cases (H 10957).
Mr. Hyde said that the issue was not a Catholic, Protestant, Jewish, Republican or Democratic issue but an issue "concerning human life"; he continued (H 10957):
"Now, if there are only 350 abortions that we are talking about, the gentleman is asking us to compromise on the principal of throwing away a human life for a secondary value. Why do not some of the abortionists who are getting fat on this practice, who are making a lot of money on it, perform a free abortion once in awhile? Let them subsidize these 350 abortions, but do not ask us to compromise human lives."
Referring to the rape and incest exception he said (ibid.):
"Now, on rape and incest, if it was promptly reported it would not be an abortion. Does the gentleman realize that if it was promptly reported it is a medical procedure that cleans up any venereal disease, that gets evidence of the rape and prevents pregnancy?
"But the rules that we are stuck with from HEW say 60 days is prompt reporting. Well, after 60 days there is definitely a pregnancy, and then an abortion occurs.
"The Supreme Court held you may not execute a rapist; that is cruel and unusual punishment. Then why execute one of the innocent victims of that rape, the unborn child? That is why this language was unacceptable before and it is unacceptable now."
Mr. Whitten argued that victims of rape, particularly younger girls, could not be expected to make a prompt report of their plight, that when legislators expected anyone's daughter or any parent "to rush to the police or to anybody else and tell this until they have to, you are just asking the impossible" (H 10957). Mr. Hyde answered that "for the few times, and they are few, that those tragic situations occur, you are setting up a system and a procedure whereby an awful, an awful lot of innocent human lives will be wasted"; he said (ibid.):
"Now, tragic as those few occurrences are, society, with its resources, ought to find a way that does not provide the solution of death to the innocent, inconvenient victim, the unborn child."
Mr. Bauman opposed the conference report; he said that the House had been debating the issue ever since the Supreme Court handed down "its odious decision allowing abortion on demand," that language had been offered on appropriation bills not to inconvenience the House or to tie up departmental funds but because that was the only legislative vehicle available to express views on the issue; he appealed to the leadership to bring to the floor legislation, possibly a constitutional amendment, that would deal once and for all with the issue in statutory form that could express the concern of millions of Americans and preserve the lives of the unborn (H 10957). Mr. Michel traced the origin of the Hyde amendment to the discovery that abortions were being funded under medicaid; and stated that the riders to the appropriation acts had the effect of eliminating federal funding for 99 percent of the abortions covered by medicaid; he argued that the compromise went 80% toward the House position, "because of the 422 abortions funded last year under the rape and health exemptions 350 fell under the health category with only 72 due to rape or incest" (H 10959). After some further discussion the question on the conference report was put to the House and the report was agreed to (H 10960).
The Senate took up the conference report later on the same day, November 16, 1979 (S 16881-82); Senator Young supported the amendment, and Senator Packwood, after reviewing the history of the legislation, said that before the Hyde amendment was passed medicaid was funding between 250,000 and 300,000 abortions a year but that from roughly December 1977 or February 1978 onward medicaid had been funding about 3 to 4 thousand abortions; he said that the difference in language which the Houses were debating was not significant; he continued (S 16882):
"The battle is largely symbolic on this issue. Right to Life has won and we fund relatively few abortions. The symbolism is important. I shall vote for this conference report. As between the two, I obviously prefer the Senate language to the Hyde language.
"But let not anybody be mistaken. Even under the Senate language, Right to Life has won 99 percent of what they wanted. What they wanted was to deny to poor women in this country medicaid funding of abortions and, for 99 percent of the poor women in this country who are covered by medicaid, they have been successful."
Senator Weicker opposed the amendment in a lengthy speech in which he reviewed the law and mentioned the cases of Roe v. Wade, Colautti v. Franklin and Zbaraz v. Quern (S 16883). Senator Weicker particularly emphasized the consequences of denying funding for abortions in which severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term; he discussed specifically genetic disorders, particularly as they occur more often in the pregnancies of women over 35 years of age; Senator Weicker described six conditions in which the amendment under discussion would deny abortion funding: (a) sickle cell disease cases having a 25% chance of going into sickle cell crisis and dying as a result of the pregnancy; (b) cancer cases in which pregnancy tends to cause the cancer to spread throughout the body, and which also involve risk of fetal defects through the administration of teratogenic agents which are used to treat cancers; (c) cases of diabetic nephropathy, and cases of diabetics suffering from heart disease; (d) cases of acute renal failure occurring as frequently as once in fourteen hundred pregnancies; (e) cases of pulmonary arterial hypertension in women with cardiac problems; and (f) cases of rheumatic heart disease, said to account for at least 61% of all pregnant cardiac patients, with the most common form being a mitral stenosis; Senator Weicker continued (S 16884):
"Mr. President, limiting funds for abortions has the same result as limiting the actual right to an abortion insofar as indigent women are concerned. It is unrealistic to believe that an indigent woman can make a valid choice if she knows she will be deprived of the means to effectuate her choice.
"What we are doing here is imposing a governmentally ordained morality on an indigent woman. She knows she will not receive funds for an abortion even if she is facing "severe and long-lasting physical health damage.' Yet, if she chooses to follow the State-encouraged morality and bear her children she will be reimbursed not only for her pre-delivery and delivery expenses but also for her children's post-natal costs, as well as receiving an increase in her welfare stipend."
Senator Weicker said that a new New York Times/CBS News poll showed that 64 percent of Roman Catholics and 69 percent of Protestants surveyed felt that the "right of a woman to have an abortion should be left entirely to the woman and her doctor" (ibid.). He asserted that the issue was raised in connection with appropriation acts because it was recognized that, if legislation outlawing abortion or providing for a constitutional amendment outlawing it were considered directly either in the House or the Senate, it would be defeated (S 16884-85).
The question on agreeing to the conference report was then put to the Senate, and, by a vote of 51 in favor, 23 opposed and 26 not voting, the conference report was agreed to (S 16885). The President signed the joint resolution on November 20, 1979.
The statutory language effective until September 30, 1980, unless amended before that date is the following:
Sec. 118. Notwithstanding any other provision of this joint resolution except section 102, none of the Federal funds provided by this joint resolution . . . shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest has been reported promptly to a law enforcement agency or public health service;
Nor are payments prohibited for drugs or devices to prevent implantation of the fertilized ovum, or for medical procedures necessary for the termination of an ectopic pregnancy.